EXECUTION COUNTERPART
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CREDIT AGREEMENT
dated as of
April 12, 1999
between
CHART INDUSTRIES, INC.
The SUBSIDIARY BORROWERS Party Hereto
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
NATIONAL CITY BANK,
as Documentation Agent
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$300,000,000
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CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS....................................................................1
SECTION 1.01. Defined Terms..............................................1
SECTION 1.02. Classification of Loans and Borrowings....................26
SECTION 1.03. Terms Generally...........................................26
SECTION 1.04. Accounting Terms; GAAP....................................27
ARTICLE II
THE CREDITS...................................................................27
SECTION 2.01. The Commitments...........................................27
SECTION 2.02. Loans and Borrowings......................................28
SECTION 2.03. Requests for Syndicated Borrowings........................28
SECTION 2.04. Swingline Loans; Foreign Currency Credits.................29
SECTION 2.05. Letters of Credit.........................................34
SECTION 2.06. Funding of Borrowings.....................................39
SECTION 2.07. Interest Elections........................................40
SECTION 2.08. Termination and Reduction of the Commitments..............42
SECTION 2.09. Repayment of Loans; Evidence of Debt......................43
SECTION 2.10. Prepayment of Loans.......................................46
SECTION 2.11. Fees......................................................51
SECTION 2.12. Interest..................................................52
SECTION 2.13. Alternate Rate of Interest................................53
SECTION 2.14. Increased Costs...........................................54
SECTION 2.15. Break Funding Payments....................................55
SECTION 2.16. Taxes.....................................................56
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs..................................................57
SECTION 2.18. Mitigation Obligations; Replacement of Lenders............60
ARTICLE III
GUARANTEE.....................................................................61
SECTION 3.01. The Guarantee.............................................61
SECTION 3.02. Obligations Unconditional.................................62
SECTION 3.03. Reinstatement.............................................63
SECTION 3.04. Subrogation...............................................63
SECTION 3.05. Remedies..................................................63
SECTION 3.06. Instrument for the Payment of Money.......................63
SECTION 3.07. Continuing Guarantee......................................64
SECTION 3.08. Rights of Contribution....................................64
SECTION 3.09. General Limitation on Guarantee Obligations...............65
ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................................65
SECTION 4.01. Organization; Powers......................................65
SECTION 4.02. Authorization; Enforceability.............................65
SECTION 4.03. Governmental Approvals; No Conflicts......................66
SECTION 4.04. Financial Condition; No Material Adverse Change; Year
2000 Issues...............................................66
SECTION 4.05. Properties................................................67
SECTION 4.06. Litigation................................................68
SECTION 4.07. Environmental Matters.....................................68
SECTION 4.08. Compliance with Laws and Agreements.......................70
SECTION 4.09. Investment and Holding Company Status.....................70
SECTION 4.10. Taxes.....................................................70
SECTION 4.11. ERISA.....................................................71
SECTION 4.12. Disclosure................................................71
SECTION 4.13. Use of Credit.............................................71
SECTION 4.14. Debt Agreements and Liens.................................72
SECTION 4.15. Capitalization............................................72
SECTION 4.16. Subsidiaries and Investments..............................72
SECTION 4.17. Real Property.............................................73
SECTION 4.18. Solvency..................................................73
SECTION 4.19. Labor Matters.............................................74
SECTION 4.20. No Burdensome Restrictions................................74
SECTION 4.21. Acquisition...............................................74
ARTICLE V
CONDITIONS....................................................................75
SECTION 5.01. Effective Date............................................75
SECTION 5.02. Each Credit Event.........................................80
SECTION 5.03. Conditions to Application of Term Loan Proceeds...........81
ARTICLE VI
AFFIRMATIVE COVENANTS.........................................................82
SECTION 6.01. Financial Statements and Other Information................82
SECTION 6.02. Notices of Material Events................................84
SECTION 6.03. Existence; Conduct of Business............................85
SECTION 6.04. Payment of Obligations....................................85
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SECTION 6.05. Maintenance of Properties; Insurance......................85
SECTION 6.06. Books and Records; Inspection.............................85
SECTION 6.07. Compliance with Laws......................................86
SECTION 6.08. Use of Proceeds and Letters of Credit.....................86
SECTION 6.09. Hedging Agreements........................................86
SECTION 6.10. Certain Obligations Respecting Subsidiaries and
Collateral................................................86
SECTION 6.11. Senior Secured Notes......................................88
ARTICLE VII
NEGATIVE COVENANTS............................................................88
SECTION 7.01. Indebtedness..............................................88
SECTION 7.02. Liens.....................................................89
SECTION 7.03. Fundamental Changes.......................................90
SECTION 7.04. Investments...............................................92
SECTION 7.05. Restricted Payments.......................................93
SECTION 7.06. Transactions with Affiliates..............................94
SECTION 7.07. Restrictive Agreements....................................94
SECTION 7.08. Operating Leases..........................................95
SECTION 7.09. Certain Financial Covenants...............................95
SECTION 7.10. Modifications of Certain Documents; Payment of Senior
Secured Notes.............................................96
SECTION 7.11. Sale and Leaseback........................................97
SECTION 7.12. Fiscal Year...............................................97
ARTICLE VIII
EVENTS OF DEFAULT.............................................................97
ARTICLE IX
THE ADMINISTRATIVE AGENT.....................................................101
ARTICLE X
MISCELLANEOUS................................................................104
SECTION 10.01. Notices.................................................104
SECTION 10.02. Waivers; Amendments.....................................105
SECTION 10.03. Expenses; Indemnity; Damage Waiver......................107
SECTION 10.04. Successors and Assigns..................................109
SECTION 10.05. Survival................................................111
SECTION 10.06. Counterparts; Integration; Effectiveness................112
SECTION 10.07. Severability............................................112
SECTION 10.08. Right of Setoff.........................................112
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SECTION 10.09. Governing Law; Jurisdiction; Etc........................113
SECTION 10.10. WAIVER OF JURY TRIAL....................................113
SECTION 10.11. Headings................................................114
SECTION 10.12. Treatment of Certain Information; Confidentiality.......114
SECTION 10.13. European Monetary Union.................................115
SCHEDULE I - Commitments
SCHEDULE II - Indebtedness and Liens
SCHEDULE III - Restrictive Agreements
SCHEDULE IV - Litigation
SCHEDULE V - Environmental Matters
SCHEDULE VI - Subsidiaries and Investments
SCHEDULE VII - Real Property
SCHEDULE VIII - Labor Matters
SCHEDULE IX - Existing Letters of Credit
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Mortgage
EXHIBIT D - Form of Guarantee Assumption Agreement
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CREDIT AGREEMENT dated as of April 12, 1999, between CHART
INDUSTRIES, INC., the SUBSIDIARY BORROWERS party hereto, the SUBSIDIARY
GUARANTORS party hereto, the LENDERS party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent, and NATIONAL CITY BANK, as Documentation Agent.
The Borrower (as hereinafter defined) has requested that the Lenders
(as so defined) extend credit to the Borrower and/or the Subsidiary Borrowers
(as so defined), under the guarantee of the Subsidiary Guarantors (as so
defined) and/or the Borrower, in an aggregate principal or face amount not
exceeding $300,000,000, to refinance certain existing indebtedness of the
Borrower and its Subsidiaries (as so defined), to enable the Borrower to
consummate the Acquisition (as so defined) and for working capital and other
general corporate purposes of the Borrower and its Subsidiaries. The Lenders are
prepared to extend such credit upon the terms and conditions hereof, and,
accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"A Term Loan" means a Term Loan made pursuant to Section 2.01(b).
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means the acquisition by the Borrower of MVE Holdings
and its Subsidiaries, effected through the merger of MVE Investors with and into
Chart Acquisition (with Chart Acquisition as the surviving corporation) followed
by the merger of Chart Acquisition with and into MVE Holdings (with MVE Holdings
as the surviving corporation), and the other transactions contemplated by the
Acquisition Documents that are to take place substantially simultaneously with
the Effective Date.
"Acquisition Documents" means, collectively, the Merger Agreements,
the Indemnification Agreement (as defined in the MVE Holdings Merger Agreement)
and the Escrow Agreement (as defined in the MVE Holdings Merger Agreement).
Credit Agreement
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"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, 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 for such Interest Period.
"Administrative Agent" means Chase, 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.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Margin" means, for any day, with respect to any ABR Loan
(including any Swingline Loan) or Eurodollar Loan, as the case may be, of any
Class the applicable rate per annum set forth below under the caption "ABR
Spread" or "Eurodollar Spread" with respect to such Class, respectively, based
upon the Leverage Ratio as of the most recent determination date; provided that
until the third Business Day after delivery of the Borrower's unaudited
consolidated financial statements for the fiscal quarter ending June 30, 1999,
the "Applicable Margin" shall be the applicable rate per annum set forth below
in Category 3:
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Eurodollar
ABR Spread for Spread for
Revolving Revolving Credit ABR Spread Eurodollar
Credit Loans Loans and Term for Term Spread for
Leverage Ratio: and Term Loan A Loan A Loan B Term Loan B
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Category 1
1.0% 2.0% 1.50% 2.50%
Greater than 4.00 to 1
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Category 2
0.75% 1.75% 1.25% 2.25%
Less than or equal to
4.00 to 1 and greater
than 3.50 to 1
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Category 3
0.50% 1.50% 1.00% 2.00%
Less than or equal to
3.50 to 1 and greater
than 3.00 to 1
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Category 4
0.25% 1.25% 1.00% 2.00%
Less than or equal to
3.00 to 1
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For purposes of the foregoing (but subject to the proviso above), (a) the
Leverage Ratio shall be determined as of the end of each fiscal quarter of the
Borrower's fiscal year based upon the Borrower's consolidated financial
statements delivered pursuant to Section 6.01(a) or (b) and (b) each change in
the Applicable Margin resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the date three Business
Days after delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that the Leverage Ratio
shall be deemed to be in Category 1 above (i) at any time that an Event of
Default has occurred and is continuing and (ii) if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it pursuant to
Section 6.01(a) or (b) and/or the related compliance certificate, during the
period from the expiration of the time for delivery thereof until such
consolidated financial statements and compliance certificate are so delivered.
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"Applicable Percentage" means (a) with respect to any Revolving
Credit Lender for purposes of Section 2.04 or 2.05 or in respect of any
indemnity claim under Section 10.03(c) arising out of an action or omission of
the Swingline Lender, the Foreign Currency Lender or the Issuing Lenders under
this Agreement, the percentage of the total Revolving Credit Commitments
represented by such Revolving Credit Lender's Revolving Credit Commitment, and
(b) with respect to any Lender in respect of any indemnity claim under Section
10.03(c) arising out of an action or omission of the Administrative Agent under
this Agreement, the percentage of the total Commitments or Loans of all Classes
hereunder represented by the aggregate amount of such Lender's Commitments or
Loans of all Classes hereunder. If the Revolving Credit Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon
the Revolving Credit Commitments most recently in effect, giving effect to any
assignments.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Assignment and Acceptance" means an Assignment and Acceptance
entered into by a Lender and an assignee (with the consent of any Person whose
consent is required by Section 10.04(b)), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
"B Term Loan" means a Term Loan made pursuant to Section 2.01(c).
"Basic Documents" means, collectively, the Credit Documents and the
Acquisition Documents.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Bond Tender Offer" means the offer by Chart Acquisition to purchase
for cash any and all of the Senior Secured Notes pursuant to the Offer to
Purchase, which was commenced on February 17, 1999.
"Bond Tender Offer Closing Date" means the date on which the Bond
Tender Offer is consummated and the conditions specified in Section 5.03 are
satisfied (or waived in accordance with Section 10.02).
"Bond Tender Offer Collateral Account" has the meaning assigned to
such term in Section 2.06(c).
Credit Agreement
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"Borrower" means Chart Industries, Inc., a Delaware corporation.
"Borrowing" means (a) all Syndicated ABR Loans of the same Class
made, converted or continued on the same date, (b) all Eurodollar Loans of the
same Class that have the same Interest Period, (c) a Swingline Loan or (d) a
Foreign Currency Credit. For purposes hereof, the date of a Syndicated Borrowing
comprising one or more Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loan or
Loans.
"Borrowing Request" means a request by the Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
"Business Day" means (i) any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in Dollar deposits in the London interbank
market and (ii) when used in connection with a Foreign Currency Credit, the term
"Business Day" shall exclude any day on which commercial banks and foreign
exchange markets do not settle payments in the principal financial center (as
determined by the Administrative Agent) of the country that issues the Foreign
Currency in which such Foreign Currency Credit is denominated and shall be
subject to Section 10.13.
"Capital Expenditures" means, for any period, expenditures made by
the Borrower or any of its Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals, improvements and replacements, but
excluding repairs) during such period computed in accordance with GAAP.
"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.
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking of, such property
for which such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
Credit Agreement
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"Change in Control" means any of the following: (a) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) (other than by Arthur Holmes and/or any related trust of which he
or any immediate member of his family is the beneficiary), of shares
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower ("Voting Stock"); (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) failure of Arthur Holmes and/or any related trust of which he or any
immediate member of his family is the beneficiary to own at least 3,000,000
shares of the Voting Stock (as such number of shares shall be adjusted for stock
splits and combinations, stock dividends, recapitalizations or other similar
transactions after the date hereof).
"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
any Issuing Lender (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or such Issuing Lender'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.
"Chart Acquisition" means Chart Acquisition Company, a Delaware
corporation and, as of the date hereof, a direct Wholly Owned Subsidiary of the
Borrower.
"Chase" means The Chase Manhattan Bank.
"CHD" means CHD, Inc., a Delaware corporation.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Revolving
Credit Loans, A Term Loans, B Term Loans, Swingline Loans or Foreign Currency
Credits and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Credit Commitment, Term Loan A Commitment or Term Loan
B Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Account" has the meaning assigned to such term in the
Security Agreement.
Credit Agreement
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"Commitment" means a Revolving Credit Commitment, Term Loan A
Commitment or Term Loan B Commitment, or any combination thereof (as the context
requires).
"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.
"Credit Documents" means, collectively, this Agreement, the Letter
of Credit Documents and the Security Documents.
"Current Assets" means, as at any date, the total assets that would
properly be classified as consolidated current assets (excluding cash and
Permitted Investments) of the Borrower and its Subsidiaries as of such date in
accordance with GAAP.
"Current Liabilities" means, as at any date, the total liabilities
that would properly be classified as consolidated current liabilities (excluding
the current portion of long-term Indebtedness) of the Borrower and its
Subsidiaries as of such date in accordance with GAAP.
"Debt Incurrence" means the incurrence of any Indebtedness by the
Borrower or any Subsidiary Guarantor after the Effective Date, provided that
Debt Incurrence shall not include Indebtedness permitted under Section 7.01.
"Debt Service" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all regularly scheduled payments or
prepayments of principal of Indebtedness (including the principal component of
any payments in respect of Capital Lease Obligations) made during such period
plus (b) all Interest Expense for such period.
"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.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by the
Borrower or any of its Subsidiaries to any other Person excluding any sale,
assignment, transfer or other disposition of any property sold or disposed of in
the ordinary course of business and on ordinary business terms.
Credit Agreement
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"Documentation Agent" means National City Bank, in its capacity as
documentation agent hereunder.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Dollar Equivalent" means, with respect to any Foreign Currency
Credit, the equivalent amount in Dollars determined on the basis of the
applicable spot selling rate in the relevant foreign exchange market, as
determined by the Foreign Currency Lender (which determination shall be
conclusive absent manifest error).
"EBIT" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following for such period: (a) net income for such
period plus (b) to the extent deducted in computing such net income, the sum of
(i) income tax expense, plus (ii) Interest Expense for such period.
"EBITDA" means, for any period, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following for such period: (a) net income for such
period plus (b) to the extent deducted in computing such net income, the sum of
(i) income tax expense, plus (ii) depreciation, amortization for such period
(including amortization of any goodwill or other intangibles), plus (iii)
Interest Expense for such period plus (iv) all other non-cash, extraordinary
charges plus (v) for any period ending on or prior to December 31, 1999,
non-recurring, cash charges of $5,000,000 in the aggregate minus (c) to the
extent added in computing such net income, the sum of (i) any gains and losses
attributable to any fixed asset sales and (ii) any non-cash, extraordinary
gains; provided that in calculating EBITDA for the purpose of the Leverage Ratio
only, for any period prior to four full fiscal quarters after the Effective
Date, EBITDA of the Borrower and its Subsidiaries shall include on a pro forma
basis EBITDA of MVE Holdings and its Subsidiaries as if the Acquisition had
occurred on the first day of the relevant calculation period.
"Effective Date" means the date on which the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"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 or Release of any Hazardous Material or to health or
safety matters.
Credit Agreement
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"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities, and including any Lien filed
against all or any part of any property covered by the Security Documents in
favor of any governmental entity), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Issuance" means (a) any issuance or sale by the Borrower or
any of its Subsidiaries after the Effective Date of (i) any of its capital
stock, (ii) any warrants or options exercisable in respect of its capital stock
(other than (A) any warrants or options issued in connection with the
consummation of the Acquisition, (B) any warrants or options issued to
directors, officers or employees of the Borrower or any of its Subsidiaries
pursuant to employee benefit plans established in the ordinary course of
business and (C) any capital stock of the Borrower issued upon the exercise of
any such warrants or options) or (iii) any other security or instrument
representing an equity interest (or the right to obtain any equity interest) in
the Borrower or any of its Subsidiaries or (b) the receipt by the Borrower or
any of its Subsidiaries after the Effective Date of any capital contribution
(whether or not evidenced by any equity security issued by the recipient of such
contribution); provided that Equity Issuance shall not include (x) any such
issuance or sale by any Subsidiary of the Borrower to the Borrower or any Wholly
Owned Subsidiary of the Borrower or (y) any capital contribution by the Borrower
or any Wholly Owned Subsidiary of the Borrower to any Subsidiary of the
Borrower.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such 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 the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
Credit Agreement
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"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting 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
VIII.
"Excess Cash Flow" means, for any period, (a) EBITDA for such period
minus (b) the sum of (i) Capital Expenditures made during such period (except
for any such Capital Expenditures to the extent financed with the proceeds of
purchase money Indebtedness or Capital Lease Obligations incurred during such
period) plus (ii) the aggregate amount of Debt Service for such period
(excluding any prepayment made during such period pursuant to Section
2.10(b)(iv)) plus (iii) the aggregate amount of income taxes paid in cash by the
Borrower and its Subsidiaries during such fiscal year plus (iv) the aggregate
amount of cash dividends paid by the Borrower on its common stock during such
period under Section 7.05(d) plus (v) the aggregate amount paid by the Borrower
during such period in respect of the repurchase of its common stock under
Section 7.05(c) plus (or minus) (c) an amount equal to the decrease (or
increase, as the case may be) in Net Working Capital during such period (to the
extent not taken into account in any of the foregoing clauses).
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, any Issuing Lender or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of
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which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.18(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.16(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.16(a).
"Existing Chart Credit Agreement" means the Credit Agreement dated
as of July 29, 1997 by and between the Borrower and certain of its Subsidiaries,
the lenders party thereto and National City Bank, as agent for such banks, as
amended and in effect immediately prior to the Effective Date.
"Existing Letters of Credit" has the meaning assigned to such term
in Section 2.05(l).
"Existing MVE Credit Agreement" means the Credit Agreement dated as
of October 31, 1997 by and among MVE and certain of its Subsidiaries, the
lenders party thereto and BankBoston, N.A. as agent for such lenders, as amended
and in effect immediately prior to the Effective Date.
"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 Borrower.
"Fixed Charge Coverage Ratio" means, as at any date, the ratio of
(a) (i) EBITDA for the period of four consecutive fiscal quarters ending on or
most recently ended prior to such date minus (ii) Capital Expenditures for such
period to (b) Fixed Charges for such period; provided that in calculating the
Fixed Charge Coverage Ratio at any date prior to March 31,
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2000, each component of the Fixed Charge Coverage Ratio shall be determined only
for the period commencing on April 1, 1999 and ending on June 30, 1999,
September 30, 1999 and December 31, 1999, as applicable.
"Fixed Charges" means, for any period, the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all Debt Service for such period
plus (b) the aggregate amount of income taxes paid during such period plus (c)
the aggregate amount of cash dividends paid by the Borrower on its common stock
during such period under Section 7.05(d) plus (d) the aggregate amount paid by
the Borrower during such period in respect of the repurchase of its common stock
under Section 7.05(c).
"Foreign Currencies" means Pounds Sterling, Deutschmarks and any
other lawful currency other than Dollars which is freely convertible into
Dollars and which, from time to time, is acceptable to the Foreign Currency
Lender and the Administrative Agent.
"Foreign Currency Credit" means an extension of credit made pursuant
to Section 2.04(b).
"Foreign Currency Credit Exposure" means, at any time, the aggregate
principal amount of all Foreign Currency Credits outstanding at such time. The
Foreign Currency Exposure of any Lender at any time shall be its Applicable
Percentage of Dollar Equivalent of the total Foreign Currency Exposure at such
time.
"Foreign Currency Lender" means NBD Bank or one of its affiliates
acting for NBD Bank or such Lender or an affiliate of such Lender designated by
the Borrower (with the approval of the Administrative Agent) to be the successor
to the Foreign Currency Lender.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is
organized under the laws of a jurisdiction other than a State of the United
States or the District of Columbia.
"Foreign Subsidiary Pledge Agreement" means a pledge or similar
agreement between an Obligor and the Administrative Agent (or a sub-agent of the
Administrative Agent),
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providing for the pledge of certain equity interests of a Foreign Subsidiary,
executed and delivered pursuant to this Agreement.
"Funded Indebtedness" means all Indebtedness of the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) of a type described in clauses (a), (b), (c), (d), (e),
(f) or (g) (or any Guarantee of any such Indebtedness) of the definition of
"Indebtedness" in this Section.
"GAAP" means generally accepted accounting principles in the United
States of America.
"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.
"Guarantee Assumption Agreement" means a Guarantee Assumption
Agreement substantially in the form of Exhibit D by an entity that, pursuant to
Section 6.10(a) is required to become a "Subsidiary Guarantor" hereunder in
favor of the Administrative Agent.
"Guarantors" means the Borrower (to the extent provided in Section
3.01(a)) and the Subsidiary Guarantors.
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"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 (other than deposits or advances made or received in the
ordinary course of business), (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information
Memorandum dated February 1999 with respect to the credit facilities
contemplated hereby heretofore furnished to each of the Lenders.
"Interest Coverage Ratio" means, as at any date of determination
thereof, the ratio of (a) EBIT for the period of four fiscal quarters ending on
or most recently ended prior to such date to (b) Interest Expense for such
period; provided that in calculating the Interest Coverage Ratio at any date
prior to March 31, 2000, each component of the Interest Coverage Ratio shall
Credit Agreement
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be determined only for the period commencing on April 1, 1999 and ending on June
30, 1999, September 30, 1999 and December 31, 1999, as applicable.
"Interest Election Request" means a request by the Borrower to
convert or continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Expense" means, for any period, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) all interest in respect of
Indebtedness (including the interest component of any payments in respect of
Capital Lease Obligations) accrued or capitalized during such period (whether or
not actually paid during such period) plus (b) the net amount payable (or minus
the net amount receivable) under Hedging Agreements relating to interest during
such period (whether or not actually paid or received during such period).
"Interest Payment Date" means (a) with respect to any Syndicated ABR
Loan, each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day
of each Interest Period therefor and, in the case of any Interest Period that is
more than three months long, each day prior to the last day of such Interest
Period that occurs at intervals of three months after the first day of such
Interest Period and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means (a) for any Borrowing (other than an ABR
Borrowing), the Interest Period of the Loan or Loans constituting such
Borrowing; and (b) for any Eurodollar Loan, the period commencing on the date of
such Loan and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as specified in the applicable
Borrowing Request or Interest Election Request; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Loan initially shall be the date on which such Loan is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Loan.
"Investment" means, for any Person: (a) the acquisition (whether for
cash, property, services or securities or otherwise) of capital stock, bonds,
notes, debentures, partnership or other ownership interests or other securities
of any other Person or any agreement to make any such acquisition (including any
"short sale" or any sale of any securities at a time
Credit Agreement
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when such securities are not owned by the Person entering into such sale); (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such Person), but excluding any such advance, loan or extension
of credit having a term not exceeding 90 days arising in connection with the
sale of inventory or supplies by such Person in the ordinary course of business;
(c) the entering into of any Guarantee of, or other contingent obligation with
respect to, Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person; or (d) the entering into of any Hedging Agreement.
"Issuing Lender" means Chase, National City Bank (solely with
respect to the Existing Letters of Credit identified on Schedule IX) or any
other Lender designated by the Administrative Agent as an Issuing Lender
hereunder, each in its capacity as an issuer of one or more Letters of Credit
hereunder, and their respective successors in such capacity as provided in
Section 2.05(j).
"LC Disbursement" means a payment made by an Issuing Lender pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender and the Foreign Currency Lender.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement (including any Existing Letter of Credit continued hereunder
pursuant to Section 2.05(l)).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
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"Leverage Ratio" means, as at any date of determination thereof, the
ratio of (a) all Funded Indebtedness of the Borrower and its Subsidiaries
(determined on a consolidated basis, without duplication, in accordance with
GAAP) as at such date to (b) EBITDA for the period of four fiscal quarters
ending on or most recently ended prior to such date.
"LIBO Rate" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for the offering of Dollar deposits with a maturity
comparable to such Interest Period. In the event that such rate is not available
at such time for any reason, then the LIBO Rate for such Interest Period shall
be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
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.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, liabilities, operations, material contracts, prospects or
condition, financial or otherwise, of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of any Obligor to perform any of its obligations under
this Agreement or any of the other Credit Documents to which it is a party or
(c) the rights of or benefits available to the Lenders under this Agreement or
any of the other Credit Documents.
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"Maturity Date" means, with respect to each Class of Loans, the Term
Loan A Maturity Date, the Term Loan B Maturity Date or the Revolving Credit
Commitment Termination Date, as applicable.
"Merger Agreements" mean (i) the MVE Holdings Merger Agreement and
(ii) the Agreement and Plan of Merger dated as of February 16, 1999 among the
Borrower, Chart Acquisition and MVE Investors.
"Mortgages" means, collectively, the instruments of Mortgage, Deed
of Trust, Assignment of Rents, Security Agreement and Fixture Filing (or other
similar instruments) executed by the Borrower and/or one or more of its
Subsidiaries in favor of the Administrative Agent (or a trustee, for the benefit
of the Administrative Agent and the Lenders), in each case substantially in the
form of Exhibit C (or such other form approved by the Administrative Agent) and
covering the respective properties and leasehold interest identified therein
(and including such additional provisions and deviations from such exhibit as
shall be so necessary in the judgment of the Administrative Agent to conform
such instrument to applicable or local law or as shall be customary under local
law).
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"MVE" means MVE, Inc., a Delaware corporation.
"MVE Guarantee Agreement" means the Guarantee Agreement between MVE
and the Administrative Agent executed and delivered pursuant to Section
5.03(b)(iv).
"MVE Holdings" means MVE Holdings, Inc., a Delaware corporation.
"MVE Holdings Merger Agreement" mean the Agreement and Plan of
Merger dated as of February 16, 1999 by and among the Borrower, Chart
Acquisition and MVE Holdings.
"MVE Investors" mean MVE Investors LLC, a Delaware limited liability
company.
"Net Available Proceeds" means (a) in the case of any Disposition,
the amount of Net Cash Payments received in connection with such Disposition;
(b) in the case of any Casualty Event, the aggregate amount of proceeds of
insurance, condemnation awards and other compensation received by the Borrower
and its Subsidiaries in respect of such Casualty Event net of (i) reasonable
expenses incurred by the Borrower and its Subsidiaries in connection
Credit Agreement
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therewith and (ii) contractually required repayments of Indebtedness to the
extent secured by a Lien on such property and any income and transfer taxes
payable by the Borrower or any of its Subsidiaries in respect of such Casualty
Event; and (c) in the case of any Equity Issuance or Debt Incurrence, the
aggregate amount of all cash received by the Borrower and its Subsidiaries in
respect of such Equity Issuance or Debt Incurrence, as the case may be, net of
reasonable expenses incurred by the Borrower and its Subsidiaries in connection
therewith.
"Net Cash Payments" means, with respect to any Disposition, the
aggregate amount of all cash payments, and the fair market value of any non-cash
consideration, received by the Borrower and its Subsidiaries directly or
indirectly in connection with such Disposition; provided that Net Cash Payments
shall be net of (a) the amount of any legal, title and recording tax expenses,
commissions and other fees and expenses paid by the Borrower and its
Subsidiaries in connection with such Disposition, (b) any Federal, state and
local income or other taxes estimated to be payable by the Borrower and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes are in fact paid to the relevant Federal, state or local
governmental authority within six months of the date of such Disposition) and
(c) any repayments by the Borrower or any of its Subsidiaries of Indebtedness to
the extent that (i) such Indebtedness is secured by a Lien on the property that
is the subject of such Disposition and (ii) the transferee of (or holder of a
Lien on) such property requires that such Indebtedness be repaid as a condition
to the purchase of such property.
"Net Working Capital" means, as at any date, the excess of (a)
Current Assets over (b) Current Liabilities, in each as of such date.
"Net Worth" means, as at any date, the sum, for the Borrower and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) the sum of capital stock taken at
par, capital surplus and retained earnings as of such date minus (b) treasury
stock and any minority interests in Subsidiaries.
"Obligor" means the Borrower, each Subsidiary Borrower and each
Subsidiary Guarantor.
"Offer to Purchase" means the Offer to Purchase for Cash Any and All
Outstanding 12 1/2% Senior Secured Notes due February 15, 2002 issued by MVE,
Inc. and Solicitation of Consents to Amendments of the Indenture and Collateral
Documents, each dated February 17, 1999, pursuant to which Chart Acquisition has
offered to purchase for cash any and all of the outstanding Senior Secured
Notes.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made
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under any Credit Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Credit Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means (a) Liens imposed by law for taxes
that are not yet due or are being contested in compliance with Section 6.04; (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 6.04; (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) cash deposits to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; (e) judgment liens in
respect of judgments that do not constitute an Event of Default under clause (k)
of Article VIII; (f) 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 Borrower or any Subsidiary; (g) bankers liens arising
by operation of law; and (h) Liens permitted under any of the Mortgages;
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 Standard & Poor's Ratings
Services, a Division of The McGraw-Hill Companies, Inc., or from Moody's
Investors Services, Inc; (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) of this
definition and entered into with a financial institution satisfying the criteria
described in clause (c) of this definition.
Credit Agreement
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"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Chase 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.
"Principal Payment Dates" means, with respect to each Class of Term
Loans, the Quarterly Dates falling on or nearest to March 31, June 30, September
30 and December 31 of each year, commencing with December 31, 1999, through and
including the respective Term Loan Maturity Date for such Class.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, threatened release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment, including the movement of
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Required Lenders" means, at any time, Revolving Credit Lenders
having Revolving Credit Exposures and unused Revolving Credit Commitments, Term
A Lenders having outstanding A Term Loans and unused Term A Loan Commitments and
Term Loan B Lenders having outstanding B Term Loans and unused Term Loan B
Commitments, representing more than 50% of the sum of the total outstanding
Revolving Credit Exposures, the Term Loans and unused Commitments at such time.
The "Required Lenders" of a particular Class of Loans means Lenders having
Revolving Credit Exposures, outstanding Term Loans and unused
Credit Agreement
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Commitments of such Class representing more than 50% of the total Revolving
Credit Exposures, outstanding Term Loans and unused Commitments of such Class at
such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any of its Subsidiaries, 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, cancellation or termination of any such shares of capital stock or
any option, warrant or other right to acquire any such shares of capital stock.
"Revolving Credit Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Credit Commitment Termination Date and the date of termination of the Revolving
Credit Commitments.
"Revolving Credit Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Revolving Credit Loans and to
acquire participations in Letters of Credit, Swingline Loans and the Foreign
Currency Credits hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 or
2.10(b) 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 Revolving Credit Commitment is set forth on Schedule I, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Credit Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Credit Commitments is $50,000,000.
"Revolving Credit Commitment Termination Date" means the Quarterly
Date falling on or nearest to March 31, 2005.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Credit Loans and its LC Exposure, Swingline Exposure and Foreign Currency Credit
Exposure at such time.
"Revolving Credit Lender" means a Lender with a Revolving Credit
Commitment or, if the Revolving Credit Commitments have terminated or expired, a
Lender with Revolving Credit Exposure.
"Revolving Credit Loan" means a Loan made pursuant to Section
2.01(a).
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"Security Agreement" means a Security Agreement substantially in the
form of Exhibit B between the Borrower, the Subsidiary Guarantors and the
Administrative Agent.
"Security Documents" means, collectively, the Security Agreement,
the Mortgages, the Guarantee Assumption Agreements, the MVE Guarantee Agreement,
the Foreign Subsidiary Pledge Agreements, such other security agreements, pledge
agreements or similar agreements or instruments as may be required by the terms
of this Agreement, and all Uniform Commercial Code financing statements required
thereby to be filed, or other filings and/or registrations required to be made
or obtained, as the case may be, with respect to the security interests in
personal property and fixtures created pursuant to any of the foregoing
agreements.
"Senior Secured Notes" means the 12 1/2% Senior Secured Notes due
2002 issued pursuant to the Senior Secured Notes Indenture in an aggregate
outstanding principal amount of $112,000,000 as of the date hereof.
"Senior Secured Notes Indenture" means the Indenture dated as of
February 16, 1995 between MVE and American Bank National Association, as
Trustee.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurodollar Borrowing, 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
arithmetic mean, taken over each day in such Interest Period, of the aggregate
of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to
which the Administrative Agent is subject for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (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
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(b) that is, as of such date, 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. Unless otherwise specified, "Subsidiary" means a Subsidiary of the
Borrower. "Wholly Owned Subsidiary" means any such corporation, limited
liability company, partnership, association or other entity of which all of such
securities or other ownership interest (other than in the case of a corporation,
directors' qualifying shares and shares or equity interests required to be held
by foreign nationals, in each case to the extent mandated by applicable law) are
so owned or controlled.
"Subsidiary Borrower" means Chart Marston Limited and/or any other
Subsidiary designated by the Borrower as a Subsidiary Borrower and approved by
the Foreign Currency Lender and the Administrative Agent.
"Subsidiary Guarantor" means each of the Subsidiaries of the
Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto and each Subsidiary of the Borrower that becomes a "Subsidiary
Guarantor" on or after the date hereof pursuant to this Agreement (including MVE
as a guarantor under the MVE Guarantee Agreement); provided that,
notwithstanding anything herein to the contrary, the following Subsidiaries
shall not be, or be required to become, Subsidiary Guarantors: (i) CHD and any
of its Subsidiaries; (ii) any Foreign Subsidiary and any of its Subsidiaries;
and (iii) prior to the Bond Tender Offer Closing Date, MVE and its Subsidiaries.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Chase, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04(a).
"Syndicated Loans" means, collectively, the Revolving Credit Loans,
Term Loan A and Term Loan B.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan A" means, collectively, each A Term Loan.
"Term Loan A Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make an A Term Loan hereunder on the
Effective Date,
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expressed as an amount representing the maximum principal amount of the A Term
Loan to be made by such Lender hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.08 or 2.10(b) 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 Term Loan A
Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Loan A Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan A Commitments
is $125,000,000.
"Term Loan A Lender" means a Lender with a Term Loan A Loan
Commitment or an outstanding A Term Loan.
"Term Loan A Maturity Date" means the Quarterly Date falling on or
nearest to March 31, 2005.
"Term Loan B" means, collectively, each B Term Loan.
"Term Loan B Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the B Term Loan to be made by such Lender hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.08 or 2.10(b) 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 Term Loan
B Commitment is set forth on Schedule I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Term Loan B Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan B Commitments
is $125,000,000.
"Term Loan B Lender" means a Lender with a Term Loan B Commitment or
an outstanding B Term Loan.
"Term Loan B Maturity Date" means the Quarterly Date falling on or
nearest to March 31, 2006.
"Term Loan Commitments" means, collectively, the Term Loan A
Commitments and the Term Loan B Commitments.
"Term Loan Maturity Date" means, with respect to each Class of Term
Loans, the Term Loan A Maturity Date or the Term Loan B Maturity Date, as
applicable.
"Term Loans" means, collectively, the Term Loan A and the Term Loan
B.
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"Transactions" means the execution, delivery and performance by each
Obligor of this Agreement and the other Basic Documents to which such Obligor is
intended to be a party, the borrowing of Loans, the use of the proceeds thereof,
the issuance of Letters of Credit hereunder, and the consummation of the
Acquisition and the other transactions contemplated by the Acquisition
Documents.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
"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 Credit Loan"), by Type (e.g., an "ABR Loan") or by Class and Type
(e.g., a "Revolving Credit ABR Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Credit Borrowing"), by Type (e.g., an
"ABR Borrowing") or by Class and Type (e.g., a "Revolving Credit ABR
Borrowing"). When used in relation to a Loan or Borrowing, "Syndicated" refers
to any Loan or Borrowing (other than the Swingline Loans and Foreign Currency
Credits).
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
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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. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) Revolving Credit Loans. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans
to the Borrower from time to time during the Revolving Credit Availability
Period in an aggregate principal amount that will not result in (i) such
Revolving Credit Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Credit Commitment or (ii) the total Revolving Credit Exposures
exceeding the total Revolving Credit Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Credit Loans. For purposes of determining
the Revolving Credit Exposure of the Lenders at any time, the Dollar Equivalent
amount of each Foreign Currency Credit then outstanding shall be determined on
the basis of such amount as most recently determined in accordance with Section
2.04(b) and notified to the Administrative Agent.
(b) Term Loan A. Subject to the terms and conditions set forth
herein, each Term Loan A Lender agrees to make an A Term Loan to the Borrower on
the Effective Date in a principal amount equal to its Term Loan A Commitment.
Amounts repaid in respect of the Term Loan A may not be reborrowed.
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(c) Term Loan B. Subject to the terms and conditions set forth
herein, each Term Loan B Lender agrees to make a B Term Loan to the Borrower on
the Effective Date in a principal amount equal to its Term Loan B Commitment.
Amounts repaid in respect of the Term Loan B may not be reborrowed.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as
part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.13, each Syndicated
Borrowing shall be constituted entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the
commencement of the Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount of $2,500,000 or a larger multiple of $500,000.
At the time that each Syndicated ABR Borrowing is made, such Borrowing shall be
in an aggregate amount equal to $2,500,000 or a larger multiple of $250,000;
provided that a Syndicated ABR Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments of the applicable
Class or (in the case of a Revolving Credit ABR Borrowing) that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(f). Each Swingline Loan shall be in an amount equal to $1,000,000 or a
larger multiple of $250,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of fifteen Eurodollar Borrowings outstanding.
SECTION 2.03. Requests for Syndicated Borrowings. To request a
Syndicated Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of a Syndicated 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 a Revolving Credit ABR
Borrowing to
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finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(f) 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
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Credit
Borrowing, Term Loan A Borrowing or Term Loan B Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Syndicated Borrowing is specified, then the
requested Syndicated Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Borrowing, then the
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 Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans; Foreign Currency Credits.
(a) Swingline Loans
(i) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower from time to time during the
Revolving Credit Availability Period, in an aggregate principal
amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans
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exceeding $10,000,000 or (ii) the total Revolving Credit Exposures
exceeding the total Revolving Credit Commitments; provided that the
Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(ii) Notice of Swingline Loans by the Borrower. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent
of such request by telephone (confirmed by telecopy), not later than
12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the
requested Swingline Loan. The Administrative Agent will promptly
advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in
the case of a Swingline Loan made to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(f), by remittance to the
relevant Issuing Lender) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(iii) Participations by Lenders in Swingline Loans. 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 Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans outstanding. Such
notice to the Administrative Agent shall specify the aggregate
amount of Swingline Loans in which Revolving Credit Lenders will
participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Revolving
Credit Lender, specifying in such notice such Revolving Credit
Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Credit Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above in this paragraph,
to pay to the Administrative Agent, for account of the Swingline
Lender, such Revolving Credit Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Revolving Credit Lender shall comply with
its obligation under this paragraph by wire transfer of
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immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Revolving Credit
Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Credit Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent shall notify the Borrower of any participations
in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made
to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other
party on behalf of the Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Credit 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 Borrower of any default in the payment thereof.
Notwithstanding the foregoing, a Revolving Credit Lender shall not
have any obligation to acquire a participation in a Swingline Loan
pursuant to this paragraph if a Default shall have occurred and be
continuing at the time such Swingline Loan was made and such
Revolving Credit Lender shall have notified the Swingline Lender in
writing, at least one Business Day prior to the time such Swingline
Loan was made, that such Default has occurred and that such
Revolving Credit Lender will not acquire participations in Swingline
Loans made while such Default is continuing.
(b) Foreign Currency Extensions of Credit.
(i) Agreement to Make Foreign Currency Credits. Subject to the
terms and conditions set forth herein, the Foreign Currency Lender
agrees to make Foreign Currency Credits, in minimum amounts to be
agreed upon from time to time between the Foreign Currency Lender
and the relevant Subsidiary Borrower, by means of advances or the
issuance of letters of credit, bank guaranties or similar
instruments, in Foreign Currencies to the relevant Subsidiary
Borrower from time to time during the Revolving Credit Availability
Period, in an aggregate principal amount at any time outstanding
that will not result in (A) the Dollar Equivalent of the aggregate
principal amount of outstanding Foreign Currency Credits exceeding
$10,000,000 or (B) the total Revolving Credit Exposures exceeding
the total Revolving Credit Commitments, provided that (I) except as
provided in sub-clause (II) below, the Foreign Currency Lender will
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determine the Dollar Equivalent of each Foreign Currency Credit as
of the date of the making or issuance of such Foreign Currency
Credit and the last Business Day of each month (and the Foreign
Currency Lender may make such determination at such other time as it
shall determine) and will promptly advise the Administrative Agent
of each such determination and (II) if the total Revolving Credit
Exposure (as most recently determined pursuant to sub-clause (I)
above) is greater than the sum of the total Revolving Credit
Commitments minus $5,000,000, then the Administrative Agent will
notify the Foreign Currency Lender and, so long as such condition
continues, the Foreign Currency Lender will determine the Dollar
Equivalent of the Foreign Currency Credits on each Business Day and
will advise the Administrative Agent thereof. If upon the
calculation of the Dollar Equivalent of the Foreign Currency Credits
pursuant to the immediately preceding sentence the total Revolving
Credit Exposure exceeds the Revolving Credit Commitments the
Borrower will promptly prepay Revolving Credit Loans in an aggregate
principal amount at least equal to such excess (but in any event in
an amount at least equal to $1,000,000). Within the foregoing limits
and subject to the terms and conditions set forth herein, the
Subsidiary Borrowers may borrow, prepay and reborrow Foreign
Currency Credits.
(ii) Notice of Foreign Currency Credits by the Borrower. To
request a Foreign Currency Credit, the relevant Subsidiary Borrower
shall notify the Foreign Currency Lender in accordance with the
notice and other procedures agreed upon between the Foreign Currency
Lender and such Subsidiary Borrower. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a
Business Day), tenor (which shall not be later than the Revolving
Credit Commitment Termination Date), currency, amount of the
requested Foreign Currency Credit and the type of such Foreign
Currency Credit (and, with respect to any letter of credit, bank
guaranty or similar instrument, such notice shall be accompanied by
such additional information and documentation as the Foreign
Currency Lender shall reasonably require). The Foreign Currency
Lender will promptly advise the Administrative Agent of the making
and amount (and Dollar Equivalent as of the date made) of each
Foreign Currency Credit.
(iii) Refunding of Foreign Currency Credit. The Foreign
Currency Lender may, upon at least three Business Days' prior
written notice given to the Administrative Agent require the
Revolving Credit Lenders to acquire participations in all or a
portion of the Foreign Currency Credits outstanding. Such notice to
the Administrative Agent shall specify the date of such acquisition
and the aggregate amount, type and currency of Foreign Currency
Credits in which the Revolving Credit Lenders will participate.
Promptly upon receipt of
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such notice, the Administrative Agent will give notice thereof to
each Revolving Credit Lender, specifying in such notice such
Lender's Applicable Percentage of such Foreign Currency Credit or
Credits. Each Revolving Credit Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above in
this paragraph, to pay to the Administrative Agent, for account of
the Foreign Currency Lender, such Revolving Credit Lender's
Applicable Percentage of such Foreign Currency Credit or Credits in
accordance with the second succeeding sentence. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
participations in Foreign Currency Credits pursuant to this
paragraph is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each
Revolving Credit Lender shall comply with its obligation under this
paragraph by wire transfer to the Administrative Agent of
immediately available funds, in Dollars in an amount equal to such
Revolving Credit Lender's Applicable Percentage of the Dollar
Equivalent of such Foreign Currency Credit or Credits and otherwise
in the manner as provided in Section 2.06 with respect to Loans made
by such Revolving Credit Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Credit
Lenders); provided that after giving effect to the purchase of such
participations such Revolving Credit Lender's Revolving Credit
Exposure will not exceed such Lender's Revolving Credit Commitment.
The Administrative Agent (or any agent as the Administrative Agent
shall designate for this purpose) shall promptly pay to the Foreign
Currency Lender the amounts in Dollars so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Foreign Currency Credit acquired pursuant to
this paragraph, and thereafter such Foreign Currency Credit shall be
deemed for all purposes hereof to be a Revolving Credit Loan
denominated in Dollars (which initially shall be an ABR Loan) and
payments in respect of such Revolving Credit Loan shall be made by
the Borrower in Dollars to the Administrative Agent for account of
the Revolving Credit Lenders and not to the Foreign Currency Lender.
Any amounts received by the Foreign Currency Lender from such
Subsidiary Borrower (or other party on behalf of such Subsidiary
Borrower) in respect of a Foreign Currency Credit after receipt by
the Foreign Currency Lender of the proceeds of a sale of
participations therein shall be promptly remitted in Dollars to the
Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have
made their payments pursuant to this paragraph and to the Foreign
Currency Lender, as their interests may appear. The purchase of
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participations in a Foreign Currency Credit pursuant to this
paragraph shall not relieve any Subsidiary Borrower of any default
in the payment thereof. Notwithstanding the foregoing, a Revolving
Credit Lender shall not have any obligation to acquire a
participation in a Foreign Currency Credit pursuant to this
paragraph if a Default shall have occurred and be continuing at the
time such Foreign Currency Credit was made and such Revolving Credit
Lender shall have notified the Foreign Currency Lender in writing,
at least one Business Day prior to the time such Foreign Currency
Credit was made, that such Default has occurred and that such
Revolving Credit Lender will not acquire participations in Foreign
Currency Credits made while such Default is continuing.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein,
in addition to the Loans provided for in Section 2.01, the Borrower may request
an Issuing Lender to issue, at any time and from time to time during the
Revolving Credit Availability Period, one or more Letters of Credit for its own
account denominated in Dollars and in such form as is acceptable to such Issuing
Lender in its reasonable determination. Letters of Credit issued hereunder shall
constitute utilization of the Revolving Credit Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the relevant Issuing Lender) to the relevant Issuing Lender and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with Section 2.05(d)), the amount of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by such Issuing Lender, the Borrower also shall submit a letter of
credit application on such Issuing Lender's standard form in connection with any
request for a Letter of Credit. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the relevant Issuing Lender relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter
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of Credit the Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the
aggregate LC Exposure of the Issuing Lenders (determined for these purposes
without giving effect to the participations therein of the Revolving Credit
Lenders pursuant to Section 2.05(e)) shall not exceed $25,000,000 and (ii) the
total Revolving Credit Exposures shall not exceed the total Revolving Credit
Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date twelve months after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, twelve months after the then-current expiration date of such
Letter of Credit, so long as such renewal or extension occurs within three
months of such then-current expiration date) and (ii) the date that is five
Business Days prior to the Revolving Credit Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by an Issuing
Lender, and without any further action on the part of such Issuing Lender or the
Lenders, such Issuing Lender hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Lender, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for account of the relevant Issuing Lender, such Lender's Applicable Percentage
of each LC Disbursement made by such Issuing Lender promptly upon the request of
such Issuing Lender at any time from the time of such LC Disbursement until such
LC Disbursement is reimbursed by the Borrower or at any time after any
reimbursement payment is required to be refunded to the Borrower for any reason.
Each such payment shall be made in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the relevant Issuing Lender the amounts so received
by it from the Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to the next following paragraph, the
Administrative Agent shall distribute such payment to the relevant Issuing
Lender or, to the extent that the Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Lender, then to such Lenders and such
Issuing Lender as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse an Issuing Lender for
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any LC Disbursement shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If an Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time, provided that, if such LC Disbursement is not less than
$1,000,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 or 2.04 that such payment be
financed with a Revolving Credit ABR Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced by the resulting Revolving
Credit ABR Borrowing or Swingline Loan. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Revolving Credit
Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) 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 any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by any Issuing Lender under a Letter of Credit issued by
it against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, and (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 the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Lender, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by any Issuing Lender 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 any Issuing
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Lender; provided that the foregoing shall not be construed to excuse any Issuing
Lender from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Lender's gross negligence or willful
misconduct when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that:
(i) any Issuing Lender may accept documents that appear on their
face to be in substantial compliance with the terms of a Letter of Credit
issued by it without responsibility for further investigation, regardless
of any notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
(ii) any Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such payment
if such documents are not in strict compliance with the terms of a Letter
of Credit issued by it; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lenders when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof
(and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. Each Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit issued by it. Such
Issuing Lender shall promptly after such examination notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether such Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such Issuing
Lender and the Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If any Issuing Lender shall make any LC
Disbursement, then, unless the Borrower 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 Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Syndicated ABR Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (f) of this Section, then Section 2.12(c) shall apply.
Interest accrued
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pursuant to this paragraph shall be for account of the relevant Issuing Lender,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (f) of this Section to reimburse such Issuing Lender shall
be for account of such Lender to the extent of such payment.
(j) Replacement of Issuing Lenders. Any Issuing Lender may be
replaced at any time by written agreement between the Borrower, the
Administrative Agent, the replaced Issuing Lender and a successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of any Issuing Lender. At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to include such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing more than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
or (ii) the Borrower shall be required to provide cover for LC Exposure pursuant
to Section 2.10(b), the Borrower shall immediately deposit into the Collateral
Account an amount in cash equal to, in the case of an Event of Default, the LC
Exposure as of such date plus any accrued and unpaid interest thereon and, in
the case of cover pursuant to Section 2.10(b), the amount required under Section
2.10(b), as the case may be; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (h) or (i) of Article VIII. Such deposit shall be held by the
Administrative Agent in the Collateral Account as collateral in the first
instance for the LC Exposure under this Agreement and thereafter for the payment
of the "Secured Obligations" under and as defined in the Security Agreement, and
for these purposes the Borrower hereby grants a security interest to the
Administrative Agent for the benefit of the Lenders in the Collateral Account
and in any financial assets (as defined in the Uniform Commercial Code) or other
property held therein.
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(l) Existing Letters of Credit. Certain letters of credit issued by
National City Bank for account of the Borrower or MVE (or any of their
respective Subsidiaries) and outstanding under the Existing Chart Credit
Agreement or the Existing MVE Credit Agreement, respectively, immediately prior
to the Effective Date, as identified in Schedule IX (collectively, the "Existing
Letters of Credit"), shall be deemed to be a Letter of Credit issued hereunder
and constitute utilization of the Revolving Credit Commitments and, from and
after the Effective Date, shall be governed in all respects by the terms of this
Agreement (including, without limitation, this Section 2.05).
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04(a) and Foreign Currency Credits shall be made as provided in
Section 2.04(b). The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that Revolving Credit ABR Borrowings made to finance the reimbursement
of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the relevant Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
(c) Deposit of Term Loan Proceeds into Collateral Account. The
Administrative Agent will cause to be established at a banking institution to be
selected by the Administrative
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Agent a cash collateral account (the "Bond Tender Offer Collateral Account"),
which may be a "securities account" (as defined in Section 8-501 of the Uniform
Commercial Code), in the name and under the sole dominion and control of the
Administrative Agent (and, in the case of a securities account, in respect of
which the Administrative Agent is the "entitlement holder" (as defined in
Section 8-102(a)(7) of the Uniform Commercial Code)), into which there shall be
deposited as of the Effective Date the proceeds of the Term Loans in an
aggregate amount equal to the sum of $125,000,000 minus the aggregate amount of
the Term Loans (if any) that is applied by the Borrower as of the Effective Date
to consummate the Bond Tender Offer, subject to Section 5.03; provided that if
such sum is equal to or less than $15,000,000, such proceeds may be retained by
the Borrower. The balance in the Bond Tender Offer Collateral Account shall be
subject to withdrawal by the Borrower only (i) to consummate the Bond Tender
Offer and only upon satisfaction of each of the conditions specified in Section
5.03 (unless any such condition shall have been waived in accordance with
Section 10.02) or (ii) to prepay the Term Loans in accordance with Section
2.10(b)(vi); provided that if upon the consummation of the Bond Tender Offer
such balance shall be equal to or less than $15,000,000, such amount shall be
paid directly to the Borrower upon its instructions.
SECTION 2.07. Interest Elections.
(a) Elections by the Borrower for Syndicated Borrowings. Each
Syndicated Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have the
Interest Period specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a Borrowing of a different Type or to
continue such Borrowing as a Borrowing of the same Type and, in the case of a
Eurodollar Borrowing, may elect the Interest Period therefor, all as provided in
this Section. The 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 constituting such
Borrowing, and the Loans constituting each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings or
Foreign Currency Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Borrower.
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(c) Information in Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.02:
(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) of this paragraph shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which shall
be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to
deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to a Syndicated ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Syndicated Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to a Syndicated ABR Borrowing at the end of the Interest Period
therefor.
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(f) Limitations on Lengths of Interest Periods. Notwithstanding any
other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert to or continue as a Eurodollar Borrowing: (i)
any Revolving Credit Borrowing if the Interest Period requested therefor would
end after the Revolving Credit Commitment Termination Date; (ii) any Term
Borrowing if the Interest Period requested therefor would end after the Term
Loan Maturity Date for the relevant Class; or (iii) any Term Borrowing if the
Interest Period requested therefor would commence before and end after any
Principal Payment Date for any Class unless, after giving effect thereto, the
aggregate principal amount of the Term Loan A or Term Loan B, as the case may
be, having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Term Loan A or Term
Loan B, respectively, permitted to be outstanding after giving effect to the
payments of principal required to be made on such Principal Payment Date.
SECTION 2.08. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i) the
Term Loan Commitments of each Class shall terminate at 5:00 p.m., New York City
time, on the Effective Date, and (ii) the Revolving Credit Commitments shall
terminate on the Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower 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 pursuant to this Section
shall be in an amount that is $5,000,000 or a larger multiple of $1,000,000 and
(ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments
if, after giving effect to any concurrent prepayment of the Revolving Credit
Loans in accordance with Section 2.10, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments of any Class under paragraph (b) 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 Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving
Credit Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.
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(d) Effect of Termination or Reduction. Any termination or reduction
of the Commitments of any Class shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay
the Loans as follows:
(i) to the Administrative Agent for account of the Revolving Credit
Lenders the outstanding principal amount of the Revolving Credit Loans on
the Revolving Credit Commitment Termination Date;
(ii) to the Administrative Agent for account of the Term A Lenders
the outstanding principal amount of the Term Loan A on each Principal
Payment Date set forth below in the aggregate principal amount set forth
opposite such Principal Payment Date (subject to adjustment pursuant to
paragraph (b) of this Section):
Principal Payment Date Amount ($)
---------------------- ----------
December 31, 1999 2,500,000
March 31, 2000 2,500,000
June 30, 2000 2,500,000
September 30, 2000 2,500,000
December 31, 2000 2,500,000
March 31, 2001 2,500,000
June 30, 2001 5,000,000
September 30, 2001 5,000,000
December 31, 2001 5,000,000
March 31, 2002 5,000,000
June 30, 2002 6,250,000
September 30, 2002 6,250,000
December 31, 2002 6,250,000
March 31, 2003 6,250,000
June 30, 2003 7,500,000
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September 30, 2003 7,500,000
December 31, 2003 7,500,000
March 31, 2004 7,500,000
June 30, 2004 8,750,000
September 30, 2004 8,750,000
December 31, 2004 8,750,000
Term Loan A Maturity Date 8,750,000;
(iii) to the Administrative Agent for account of the Term Loan B
Lenders the outstanding principal amount of the Term Loan B on each
Principal Payment Date set forth below in the aggregate principal amount
set forth opposite such Principal Payment Date (subject to adjustment
pursuant to paragraph (b) of this Section):
Principal Payment Date Amount ($)
---------------------- ----------
December 31, 1999 312,500
March 31, 2000 312,500
June 30, 2000 312,500
September 30, 2000 312,500
December 31, 2000 312,500
March 31, 2001 312,500
June 30, 2001 312,500
September 30, 2001 312,500
December 31, 2001 312,500
March 31, 2002 312,500
June 30, 2002 312,500
September 30, 2002 312,500
December 31, 2002 312,500
March 31, 2003 312,500
June 30, 2003 312,500
September 30, 2003 312,500
December 31, 2003 312,500
March 31, 2004 312,500
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June 30, 2004 312,500
September 30, 2004 312,500
December 31, 2004 312,500
March 31, 2005 312,500
June 30, 2005 29,531,250
September 30, 2005 29,531,250
December 31, 2005 29,531,250
Term Loan B Maturity Date 29,531,250;
(iv) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of the Revolving Credit Commitment
Termination Date and the first date after such Swingline Loan is made that
is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; provided that on each date that a
Revolving Credit Borrowing is made, the Borrower shall repay all Swingline
Loans then outstanding; and
(v) to the Foreign Currency Lender the unpaid principal amount of
each Foreign Currency Credit on the date(s) agreed upon in writing between
the relevant Subsidiary Borrower and the Foreign Currency Lender (which
date(s) shall not be later than the Revolving Credit Commitment
Termination Date).
(b) Adjustment of Amortization Schedule. Any prepayment of a Term
Loan of either Class shall be applied to reduce ratably the remaining scheduled
installments of such Term Loan. To the extent not previously paid, all Term
Loans of each Class shall be due and payable on the Term Loan Maturity Date for
such Class.
(c) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings of any Class hereunder, the Borrower shall select the Borrowing or
Borrowings of the applicable Class to be paid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment; provided that each repayment of Borrowings of
any Class shall be applied to repay any outstanding ABR Borrowings of such Class
before any other Borrowings of such Class. If the Borrower fails to make a
timely selection of the Borrowing or Borrowings to be repaid or prepaid, such
payment shall be applied, first, to pay any outstanding ABR Borrowings of the
applicable Class and, second, to other Borrowings of such Class in the order of
the remaining duration of their respective Interest Periods (the Borrowing with
the shortest remaining Interest Period to be repaid first). Each
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payment of a Syndicated Borrowing shall be applied ratably to the Loans included
in such Borrowing.
(d) Maintenance of Loan Accounts by the Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(e) Maintenance of Loan Accounts by the Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and each Interest
Period therefor, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(f) Effect of Entries. The entries made in the accounts maintained
pursuant to paragraph (d) or (e) of this Section shall be prima facie evidence
of the existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans of any Class
made by it be evidenced by a promissory note. In such event, the Borrower (or in
the case of the Foreign Currency Credits, the relevant Subsidiary 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 (or
in the case of the Foreign Currency Credits, the Foreign Currency Lender).
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject
to the requirements of this Section. Any prepayment of the Term Loans of either
Class pursuant to this paragraph shall be applied ratably (i) among the Classes
of Term Loans in accordance with the aggregate amount of the outstanding Term
Loans of such Class (if any) and (ii) with respect to each class of Term Loans,
to the remaining scheduled installments thereof.
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(b) Mandatory Prepayments
(i) Casualty Events. Following the receipt by the Borrower of the
proceeds of insurance, condemnation award or other compensation in respect
of any Casualty Event affecting any property of the Borrower or any of its
Subsidiaries, the Borrower shall prepay the Loans (and/or provide cover
for LC Exposure as specified in Section 2.05(k)), and/or the Commitments
shall be subject to automatic reduction, in an aggregate amount, if any,
equal to 100% of the Net Available Proceeds of such Casualty Event to the
extent required by the next paragraph of this clause (i), such prepayment
and/or reduction to be effected in each case in the manner and to the
extent specified in clause (vii) of this paragraph.
Notwithstanding anything herein or in any Security Document to the
contrary, the Borrower shall be required to make a prepayment in respect
of any Casualty Event pursuant to this clause (i) as follows:
(x) The first $50,000,000 in the aggregate of Net Available
Proceeds of Casualty Events may be used by the Borrower or any of
its Subsidiaries to repair or replace the property affected by the
relevant Casualty Event, provided that all such amounts in excess of
$10,000,000 in the aggregate shall be deposited by the Borrower or
the relevant Subsidiary into the relevant cash collateral account
(in the case of property covered by the Security Agreement) or the
Restoration Account (as defined in the relevant Mortgage) or similar
account (in the case of property covered by a Mortgage) and shall be
disbursed by the Administrative Agent (or mortgagee, as the case may
be) upon request and certification by the Borrower that such amounts
are to be used to repair or replace the property affected by the
relevant Casualty Event, and provided further, if at any time the
Borrower determines that it shall not repair or replace such
property, the Borrower shall promptly notify the Administrative
Agent thereof and, within 30 days thereof, prepay the Loans (and/or
provide cover for LC Exposure) and/or the Commitments shall be
reduced as provided in the first paragraph of this clause (i) in an
amount equal to that portion of the Net Available Proceeds so
determined not to be used for such repair or replacement (but in
amounts not less than $1,000,000 and in $1,000,000 increments); and
(y) All Net Available Proceeds of Casualty Events in excess of
$50,000,000 in the aggregate shall, unless the Required Lenders
shall approve the use thereof for the purpose of repairing or
replacing the property affected by the relevant Casualty Event,
within 30 days after the Borrower's receipt of such Net
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Available Proceeds, prepay the Loans (and/or provide cover for LC
Exposure) and/or the Commitments shall be reduced as provided in the
first paragraph of this clause (i) in an amount equal to such excess
(but in amounts not less than $1,000,000 and in $1,000,000
increments).
Nothing in this paragraph shall be deemed to limit any obligation of
the Borrower or any of its Subsidiaries pursuant to any of the Security
Documents to remit to a collateral or similar account maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds of
insurance, condemnation award or other compensation received in respect of any
Casualty Event.
(ii) Debt Incurrence. Upon any Debt Incurrence after the Effective
Date, the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(k)), and/or the Revolving Credit
Commitments shall be subject to automatic reduction, in an aggregate
amount equal to 100% of the Net Available Proceeds thereof, such
prepayment and/or reduction to be effected in each case in the manner and
to the extent specified in clause (vii) of this paragraph.
(iii) Equity Issuance. Upon any Equity Issuance after the Effective
Date, the Borrower shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.05(k)), and/or the Commitments shall be
subject to automatic reduction, in an aggregate amount equal to 100% of
the Net Available Proceeds thereof, such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in clause
(vii) of this paragraph.
(iv) Excess Cash Flow. Not later than the date 90 days after the end
of each fiscal year of the Borrower ending after the date hereof, the
Borrower shall prepay the Loans (and/or provide cover for LC Exposure as
specified in Section 2.05(k)), and/or the Revolving Credit Commitments
shall be subject to automatic reduction, in an aggregate amount equal to
(A) 75% of Excess Cash Flow for such fiscal year minus (B) the aggregate
amount of optional prepayments of Term Loans (if any) made during such
fiscal year pursuant to paragraph (a) of this Section and, after the
payment in full of the Term Loans, the aggregate amount of voluntary
reductions of the Revolving Credit Commitments made during such fiscal
year pursuant to Section 2.08(b), such prepayment and/or reduction to be
effected in each case in the manner and to the extent specified in clause
(vii) of this paragraph; provided that no such prepayment under this
clause (iv) shall be required with respect to any such fiscal year if the
Leverage Ratio determined as of the last day of such fiscal year is less
than 3.0:1.0 (as set forth in the certificate with respect to such fiscal
year delivered pursuant to Section 6.01(c)).
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(v) Sale of Assets. Without limiting the obligation of the Borrower
to obtain the consent of the Required Lenders pursuant to Section 7.03(b)
to any Disposition not otherwise permitted hereunder, in the event that
the Net Available Proceeds of any Disposition (herein, the "Current
Disposition"), and of all prior Dispositions as to which a prepayment has
not yet been made under this paragraph, shall exceed $5,000,000 in the
aggregate (and thereafter in increments of $1,000,000) then, no later than
five Business Days prior to the occurrence of the Current Disposition, the
Borrower will deliver to the Lenders a statement, certified by a Financial
Officer of the Borrower, in form and detail satisfactory to the
Administrative Agent, of the amount of the Net Available Proceeds of the
Current Disposition and of all such prior Dispositions and will prepay the
Loans (and/or provide cover for LC Exposure as specified in Section
2.05(k)), and/or the Revolving Credit Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% of the Net
Available Proceeds of the Current Disposition and such prior Dispositions
in excess of either $5,000,000 in the aggregate for any fiscal year or
$10,000,000 in the aggregate from the Effective Date, such prepayment
and/or reduction to be effected in each case in the manner and to the
extent specified in clause (vii) of this paragraph.
(vi) Consummation of Bond Tender Offer. Upon the earlier of (A) the
Bond Tender Offer Closing Date (but only if the aggregate amount of the
Term Loans not applied to consummate the Bond Tender Offer shall exceed
$15,000,000) or (B) the date 40 days after the Effective Date (but only if
the Bond Tender Offer Closing Date shall not have occurred by such date),
the Borrower will prepay the Term Loans in an aggregate amount equal to
100% of (i) the amount (if any) then held in the Bond Tender Offer
Collateral Account or (ii) if the Bond Tender Offer Closing Date shall
occur on the Effective Date, that portion of the proceeds (if any) of the
Term Loans that are not applied by the Borrower to consummate the Bond
Tender Offer but only if such unapplied amount exceeds $15,000,000,
ratably among the Classes of Term Loans and ratably over the remaining
scheduled installments thereof and the aggregate amount of such
prepayments may not be reborrowed.
(vii) Application. Prepayments and/or reductions of Commitments
pursuant to this paragraph (except with respect to prepayments made
pursuant to clause (vi) of this paragraph) shall be applied as follows:
first, ratably among the Classes of Term Loans in accordance
with the respective sums at such time of the aggregate outstanding
principal amount of Term Loans of such Class (if any), to prepay the
Term Loans of such Class (and, with respect to each Class of Term
Loans, ratably over the remaining scheduled installments thereof),
and
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second, after the payment in full of the Term Loans and the
termination of the Term Loan Commitments, to reduce the aggregate
amount of the Revolving Credit Commitments (and to the extent that,
after giving effect to such reduction, the total Revolving Credit
Exposures would exceed the Revolving Credit Commitments, the
Borrower shall, first, prepay ratably Swingline Loans and Foreign
Currency Credits, second, prepay Revolving Credit Loans and third,
provide cover for LC Exposure as specified in Section 2.05(k) in an
aggregate amount equal to such excess).
(c) Rights of Term Loan B Lenders. Notwithstanding anything to the
contrary in this Section, in connection with any optional or mandatory
prepayment under this Section at any time when the Term Loan A is outstanding,
any Term Loan B Lender may elect, by notice to the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) at least one Business Day prior to
the prepayment date, to decline all or any portion of any such prepayment of its
B Term Loan, in which case the aggregate amount of the prepayment that would
have been applied to prepay such Lender's B Term Loan but that is so declined
shall be applied to prepay ratably over the remaining scheduled installments of
the Term Loan A (and, in that connection, to enable the election by any Term
Loan B Lender under this paragraph, the Borrower agrees to provide the
Administrative Agent (which shall promptly notify each Lender) at least five
Business Days' prior written notice of any prepayment under this Section to be
made at a time when any B Term Loan is outstanding).
(d) Notices, Etc. The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any optional prepayment hereunder (i) in
the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of a Syndicated ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Revolving Credit Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice relating to a Syndicated Borrowing, the Administrative Agent shall advise
the relevant Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to
apply fully the
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required amount of a mandatory prepayment. Each prepayment of a Syndicated
Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12 and shall be made in the manner specified in Section
2.09(c). The notice requirement applicable to the prepayment of Foreign Currency
Credits shall be as agreed upon between the Foreign Currency Lender and the
relevant Subsidiary Borrower.
SECTION 2.11. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for account of each Revolving Credit Lender a commitment fee, which shall
accrue at a rate per annum equal to 0.50% on the average daily unused amount of
the Revolving Credit Commitment of such Lender during the period from and
including the Effective Date hereof to but excluding the earlier of the date
such Revolving Credit Commitment terminates and the Revolving Credit Commitment
Termination Date. Accrued commitment fees shall be payable in arrears on each
Quarterly Date and on the earlier of the date the Revolving Credit Commitment
terminates and the Revolving Credit Commitment Termination Date, commencing on
the first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day). For
purposes of computing commitment fees with respect to the Revolving Credit
Commitments, the Revolving Credit Commitment of a Lender shall be deemed to be
used to the extent of the outstanding Revolving Credit Loans and LC Exposure of
such Lender (and the Swingline Exposure and Foreign Currency Exposure of such
Lender shall be disregarded for such purpose).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Revolving Credit Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at a rate per annum equal to the Applicable Margin applicable to interest on
Eurodollar Revolving Credit Loans on the average daily amount of such Lender's
LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Revolving Credit
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to each Issuing Lender a fronting fee in respect of each
Letter of Credit issued by it, which shall accrue at the rate per annum, as
mutually agreed between the Borrower and such Issuing Lender, on the average
daily amount of the aggregate undrawn amount of such Letter of Credit plus the
aggregate amount of all LC Disbursements in respect thereof that have not yet
been reimbursed by or on behalf of the Borrower during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Credit Commitments and the date on which there
ceases to be any exposure with respect to such Letter of Credit, as well as such
Issuing Lender's
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standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including each Quarterly Date shall be
payable in arrears on the third Business Day following such Quarterly Date,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving Credit
Commitments terminate and any such fees accruing after the date on which the
Revolving Credit Commitments terminate shall be payable on demand. Any other
fees payable to any Issuing Lender pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. Other than under paragraph (e) below, all fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to any Issuing Lender, in the case of
fees payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances.
(e) Foreign Currency Credit Fees. The relevant Subsidiary Borrower
agrees to pay directly to the Foreign Currency Lender for its account such fees
in respect of the Foreign Currency Credits in such currency and on such date(s)
as may be agreed upon between such Subsidiary Borrower and the Foreign Currency
Lender.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (including
each Swingline Loan) shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin.
(b) Eurodollar Loans. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Applicable Margin.
(c) Default Interest. Notwithstanding the foregoing, upon and during
the continuation of any Event of Default, the aggregate principal amount of all
Loans shall bear interest, after as well as before judgment, at a rate per annum
equal to 2% plus the rate otherwise
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applicable to the respective Loans. In addition (but without duplication of the
amounts payable under the immediately preceding sentence), if any principal of
or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment 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 above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, in the case
of Revolving Credit Loans, upon termination of the Revolving Credit Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of a Revolving Credit ABR Loan prior to the
Revolving Credit Commitment Termination Date), 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 Eurodollar Borrowing
prior to the end of the Interest Period therefor, accrued interest on such
Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the
basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the Prime
Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
(f) Foreign Currency Credits. Each Foreign Currency Credit shall
bear interest at a rate per annum as agreed upon between the Foreign Currency
Lender and the relevant Subsidiary Borrower at or prior to the time of the
making or issuance, as the case may be, of such Foreign Currency Credit and
shall be computed on the basis as so agreed. Accrued interest on each Foreign
Currency Credit shall be payable on the date(s) as agreed upon between the
Foreign Currency Lender and the relevant Subsidiary Borrower (which date(s)
shall not be later than the Revolving Credit Commitment Termination Date).
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of the Interest Period for a Eurodollar Borrowing:
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(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Lenders of such Class 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 Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Syndicated Borrowing to, or
continuation of any Syndicated Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as a Syndicated ABR Borrowing.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. 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 account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Lender; or
(ii) impose on any Lender or any Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
relevant Issuing Lender 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 such Issuing Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or such Issuing Lender, as
the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
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(b) Capital Requirements. If any Lender or any Issuing Lender
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 such Issuing
Lender's capital or on the capital of such Lender's or such Issuing Lender'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 such Issuing Lender, to a level below that which such Lender
or such Issuing Lender or such Lender's or such Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Lender's policies and the policies of such Lender's or
such Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or such Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender or such Lender's or such Issuing Lender's holding
company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or an
Issuing Lender setting forth the amount or amounts necessary to compensate such
Lender or such Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or such Issuing Lender, as the case may be, the amount shown as due
on any such certificate within 30 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or
any Issuing Lender to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or such Issuing Lender's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or such Issuing Lender, 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 such Issuing Lender'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 six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any
Syndicated Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.10(d) and is revoked in accordance herewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of an Interest Period therefor as a
result of a request by the Borrower pursuant to
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Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount determined by such Lender to be equal to the excess,
if any, of (i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. 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 Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 30 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Credit Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, each Lender and each Issuing Lender, within 30 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or such Issuing Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
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respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or an Issuing Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment
of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Obligors. Each Obligor shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or
otherwise) or under any other Credit Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off, counterclaim or other
deduction; provided that if a new Loan is to be made by any Lender on a date the
Borrower is to repay any principal of an outstanding Loan of such Lender, such
Lender shall apply the proceeds of such new Loan to the payment of the principal
to be repaid and only an amount equal to the difference between the principal to
be borrowed and the principal to be repaid shall be made available by such
Lender to the Administrative Agent as provided in Section 2.06 or paid by the
Borrower to the Administrative Agent pursuant to this paragraph, as the case may
be. Any amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except as otherwise expressly provided in the relevant Credit
Document, and except payments to be made directly to the relevant Issuing
Lender, the Swingline Lender or the Foreign Currency Lender as expressly
provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16
and 10.03 shall be made directly to
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the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for 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 or under any other Credit Document (except to the extent
otherwise provided herein or therein) shall be made in Dollars.
(b) Application of Insufficient Payments. 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, to pay 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, to pay 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) Pro Rata Treatment. Except to the extent otherwise provided
herein: (i) each Syndicated Borrowing of a particular Class shall be made from
the relevant Lenders, each payment of commitment fee under Section 2.11 in
respect of Commitments of a particular Class shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class under Section 2.08 shall be applied to the
respective Commitments of such Class of the relevant Lenders, pro rata according
to the amounts of their respective Commitments of such Class; (ii) each
Syndicated Borrowing of any Class shall be allocated pro rata among the relevant
Lenders according to the amounts of their respective Commitments of such Class
(in the case of the making of Syndicated Loans) or their respective Loans of
such Class (in the case of conversions and continuations of Loans); (iii) each
payment or prepayment of principal of Revolving Credit Loans, the Term Loan A
and the Term Loan B by the Borrower shall be made for account of the relevant
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Syndicated Loans of such Class held by them; and (iv) each payment of
interest on Revolving Credit Loans, the Term Loan A and the Term Loan B by the
Borrower shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Syndicated Loans or
participations in LC Disbursements, Swingline Loans or Foreign Currency Credits
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Syndicated Loans and participations in LC Disbursements,
Swingline
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Loans and Foreign Currency Credits and accrued interest thereon then due 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
Syndicated Loans and participations in LC Disbursements, Swingline Loans and
Foreign Currency Credits of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Syndicated Loans and participations in LC Disbursements,
Swingline Loans and Foreign Currency Credits; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Obligor pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Obligor 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 Obligor rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Obligor
in the amount of such participation. The Dollar Equivalent of the principal or
face amount of each Foreign Currency Credit shall be determined by the
Administrative Agent in the case of receipt by any Lender of any payment or
other recovery which may be subject to this paragraph (d).
(e) Presumptions of Payment. Unless the Administrative Agent shall
have received notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for account of the Lenders or any Issuing Lender
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
such Issuing Lender, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or such
Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender
shall fail to make any payment required to be made by it pursuant to Section
2.04(a)(iii), 2.04(b)(iii), 2.05(e) or (f), 2.06(b) or 2.17(e), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
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Agent for account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.16, 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 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation
under Section 2.14, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for account of any Lender pursuant
to Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 10.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, the Issuing
Lenders, the Swingline Lender and the Foreign Currency Lender), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, Swingline Loans and Foreign Currency Credits, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.14 or payments required to be made pursuant to Section 2.16, such
assignment will result in a 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 Borrower to require such assignment and delegation cease to apply.
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ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee
(a) The Borrower hereby guarantees to each Lender and the
Administrative Agent and their respective successors and assigns, in each case
as primary obligor and not merely as surety, the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest on the Foreign Currency Credits made by the Foreign Currency Lender
to the Subsidiary Borrowers and all other amounts from time to time owing to the
Lenders or the Administrative Agent by the Subsidiary Borrowers under this
Agreement, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "Foreign Currency Guaranteed
Obligations"). The Borrower hereby further agrees that if the Subsidiary
Borrowers shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Foreign Currency Guaranteed Obligations,
the Borrower will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Foreign Currency Guaranteed Obligations, the same will be promptly
paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
(b) The Subsidiary Guarantors hereby jointly and severally guarantee
to each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to the Borrower and all other amounts from time to time owing to the
Lenders or the Administrative Agent by the Borrower under this Agreement and by
any Obligor under any of the other Credit Documents, and all obligations of the
Borrower or any of its Subsidiaries to any Lender (or any affiliate of any
Lender) in respect of any Hedging Agreement, in each case strictly in accordance
with the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). The Subsidiary Guarantors hereby further jointly and
severally agree that if the Borrower shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Subsidiary Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
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SECTION 3.02. Obligations Unconditional. The obligations of the
Guarantors under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Borrower under this Agreement or any other agreement
or instrument referred to herein, or any substitution, release or exchange of
any other guarantee of or security for any of the Foreign Currency Guaranteed
Obligations or the Guaranteed Obligations, and, to the fullest extent permitted
by applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder, which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Foreign Currency Guaranteed Obligations or the Guaranteed Obligations
shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein shall be
done or omitted;
(iii) the maturity of any of the Foreign Currency Guaranteed
Obligations or the Guaranteed Obligations shall be accelerated, or any of
the Foreign Currency Guaranteed Obligations or the Guaranteed Obligations
shall be modified, supplemented or amended in any respect, or any right
under this Agreement or any other agreement or instrument referred to
herein shall be waived or any other guarantee of any of the Foreign
Currency Guaranteed Obligations or the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Foreign Currency Guaranteed Obligations or the Guaranteed Obligations
shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of the Foreign Currency Guaranteed Obligations or the Guaranteed
Obligations.
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SECTION 3.03. Reinstatement. The obligations of the Guarantors under
this Article shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of an Obligor in respect of the Foreign
Currency Guaranteed Obligations or the Guaranteed Obligations is rescinded or
must be otherwise restored by any holder of any of the Foreign Currency
Guaranteed Obligations or the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Guarantors
jointly and severally agree that they will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law, but excluding any such costs and expenses
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of the
Administrative Agent or such Lender, as the case may be.
SECTION 3.04. Subrogation. The Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all Foreign
Currency Guaranteed Obligations and Guaranteed Obligations and the expiration
and termination of the Commitments of the Lenders under this Agreement they
shall not exercise any right or remedy arising by reason of any performance by
them of their guarantee in Section 3.01, whether by subrogation or otherwise,
against any Obligor or any other guarantor of any of the Foreign Currency
Guaranteed Obligations or the Guaranteed Obligations or any security for any of
the Foreign Currency Guaranteed Obligations or the Guaranteed Obligations.
SECTION 3.05. Remedies. The Guarantors jointly and severally agree
that, as between the Guarantors and the Lenders, the obligations of the Obligors
under this Agreement may be declared to be forthwith due and payable as provided
in Article VIII (and shall be deemed to have become automatically due and
payable in the circumstances provided in Article VIII) for purposes of Section
3.01 notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Obligor and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by such Obligor) shall forthwith
become due and payable by the Guarantors for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Guarantor
hereby acknowledges that the guarantee in this Article constitutes an instrument
for the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option,
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in the event of a dispute by such Guarantor in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is
a continuing guarantee, and shall apply to all Foreign Currency Guaranteed
Obligations and Guaranteed Obligations whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an Excess Funding Guarantor (as defined below) by reason of the payment
by such Subsidiary Guarantor of any Guaranteed Obligations (including without
duplication, for purposes of this Section only, any Guaranteed Obligations as
defined in the MVE Guarantee Agreement), each other Subsidiary Guarantor shall,
on demand of such Excess Funding Guarantor (but subject to the next sentence),
pay to such Excess Funding Guarantor an amount equal to such Subsidiary
Guarantor's Pro Rata Share (as defined below and determined, for this purpose,
without reference to the properties, debts and liabilities of such Excess
Funding Guarantor) of the Excess Payment (as defined below) in respect of such
Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Guarantor under this Section shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Subsidiary Guarantor under the other provisions of this Article and such Excess
Funding Guarantor shall not exercise any right or remedy with respect to such
excess until payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "Excess Funding Guarantor" means,
in respect of any Guaranteed Obligations, a Subsidiary Guarantor that has paid
an amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Foreign Currency Guaranteed Obligations or Guaranteed Obligations and (iii) "Pro
Rata Share" means, for any Subsidiary Guarantor, the ratio (expressed as a
percentage) of (x) the amount by which the aggregate present fair saleable value
of all properties of such Subsidiary Guarantor (excluding any shares of stock of
any other Subsidiary Guarantor) exceeds the amount of all the debts and
liabilities of such Subsidiary Guarantor (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of such
Subsidiary Guarantor hereunder and any obligations of any other Subsidiary
Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of all of
the Subsidiary Guarantors exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors hereunder and under the
other Credit Documents) of all of the Subsidiary Guarantors, determined (A) with
respect to any Subsidiary Guarantor that is a party hereto on the Effective
Date, as of the Effective Date, and (B) with
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respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01(b) would otherwise, taking into account the provisions of Section
3.08, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 3.01(b), then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Subsidiary Guarantor, any Lender, the Administrative Agent or any
other Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and its
Subsidiaries 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 4.02. Authorization; Enforceability. The Transactions are
within each Obligor's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by each Obligor party hereto and
constitutes, and each of the other Basic Documents to which it is a party when
executed and delivered by such Obligor will constitute, a legal, valid and
binding obligation of such Obligor, enforceable against each Obligor in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
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SECTION 4.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance of the Credit Documents (a) do not require any consent
or approval of, registration or filing with, or any other action by, any
Governmental Authority, except for (i) such as have been obtained or made and
are in full force and effect and (ii) filings and recordings in respect of the
Liens created pursuant to the Security Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person in excess of $5,000,000 in the aggregate,
and (d) except for the Liens created pursuant to the Security Documents, will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change; Year
2000 Issues.
(a) Financial Condition of the Borrower. The Borrower has heretofore
furnished to the Lenders its audited consolidated balance sheet and statements
of income, stockholders' equity and cash flows as of and for each of the fiscal
years ended December 31, 1998 and December 31, 1997 reported on by Ernst & Young
LLP. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its Subsidiaries as of such dates and for such periods in accordance with GAAP.
Neither the Borrower nor any of its Subsidiaries has, on the date hereof, any
material contingent liabilities, material liabilities for taxes, long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchanged transactions, or any unrealized or
anticipated losses from any unfavorable commitments, which are not reflected in
such financial statements.
(b) Financial Condition of MVE Holdings. The Borrower has heretofore
furnished to the Lenders the consolidated balance sheet and statements of
income, stockholders' equity and cash flows of MVE Holdings and its Subsidiaries
as of and for each of the fiscal years ended December 31, 1998 and December 31,
1997. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of MVE Holdings and
its Subsidiaries as of such dates and for such periods in accordance with GAAP.
Neither MVE Holdings nor any of its Subsidiaries has, on the date hereof, any
material contingent liabilities, material liabilities for taxes, long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchanged transactions, or any unrealized or
anticipated losses from any unfavorable commitments, which are not reflected in
such financial statements.
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(c) Pro Forma Financial Statements. The Borrower has heretofore
furnished to the Lenders an unaudited pro forma consolidated balance sheet of
the Borrower and its Subsidiaries as at December 31, 1998 after giving effect to
the consummation of the Acquisition, the incurrence of the Indebtedness
hereunder and the use of the proceeds thereof and the consummation of the other
Transactions (including, without limitation, the Bond Tender Offer), which
presents fairly the consolidated pro forma financial condition of the Borrower
and its Subsidiaries, taken as a whole, and are based on assumptions that the
Borrower deems reasonable and appropriate in light of current circumstances.
(d) No Material Adverse Change. Since December 31, 1998, there has
been no material adverse change in the business, assets, operations, prospects
or condition, financial or otherwise, of the Borrower and its Subsidiaries,
taken as a whole (other than any such change resulting solely from the
consummation of the Acquisition as of the Effective Date).
(e) Year 2000 Issues. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the Borrower's and
its Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
Borrower's and its Subsidiaries' systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by June 30, 1999.
The cost to the Borrower and its Subsidiaries of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Borrower and
its Subsidiaries (including reprogramming errors and the failure of others'
systems or equipment) 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
Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without a Material Adverse Effect.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, subject only to Liens permitted by Section
7.02 and except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower 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
Borrower and its Subsidiaries does not
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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 4.06. Litigation. There are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority now pending against or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
any of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the matters disclosed in Schedule IV) or (ii) that involve
this Agreement or the Transactions. Since the date of this Agreement, there has
been no change in the status of the matters disclosed in Schedule IV that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 4.07. Environmental Matters. Each of the Borrower and its
Subsidiaries has obtained all environmental, health and safety permits,
licenses, registrations and other authorizations required under all
Environmental Laws to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such permit, license,
registration or authorization would not (either individually or in the
aggregate) have a Material Adverse Effect. Each of such permits, licenses,
registrations and authorizations is in full force and effect and each of the
Borrower and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Law or in any regulation,
code, plan, order, decree, judgment, injunction issued, entered, promulgated or
approved thereunder, except to the extent failure to comply therewith would not
(either individually or in the aggregate) have a Material Adverse Effect.
In addition, except as set forth in Schedule V:
(a) No Pending Environmental Matters. No written notice,
notification, demand, request for information, citation, summons or order
has been issued, no complaint has been filed, no penalty has been assessed
and no investigation or review is pending or, to the best knowledge of the
Borrower or any of its Subsidiaries, threatened by any governmental or
other entity with respect to any alleged failure by the Borrower or any of
its Subsidiaries to have any environmental, health or safety permit,
license, registration or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Borrower or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Borrower or any of
its Subsidiaries.
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(b) No Permits Required; Certain Specific Representations. Neither
the Borrower nor any of its Subsidiaries owns, operates or leases a
treatment, storage or disposal facility requiring a permit under the
Resource Conservation and Recovery Act of 1976, as amended, or under any
comparable state or local statute; and
(i) no polychlorinated biphenyls (PCB's) are or have been
present at or above regulated levels at any site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries;
(ii) no regulated asbestos or asbestos-containing materials is
or has been present at any site or facility now or previously owned,
operated or leased by the Borrower or any of its Subsidiaries;
(iii) there are no underground storage tanks or surface
impoundments for Hazardous Materials, active or abandoned, at any
site or facility now or, to the best knowledge of the Borrower or
any of its Subsidiaries, previously owned, operated or leased by the
Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Borrower or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(v) no Hazardous Materials have been otherwise Released at, on
or under any site or facility now or previously owned, operated or
leased by the Borrower or any of its Subsidiaries that would (either
individually or in the aggregate) have a Material Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites. Neither the
Borrower nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Material in amounts or quantities other
than those not reasonably likely to result in a Material Adverse Effect to
any location that is listed on the National Priorities List ("NPL") under
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended ("CERCLA"), listed for possible inclusion on the NPL
by the Environmental Protection Agency in the Comprehensive Environmental
Response and Liability Information System, as provided for by 40 C.F.R.
ss. 300.5 ("CERCLIS"), or on any similar state or local list or that is
the subject of Federal, state or local enforcement actions or other
investigations that may lead to Environmental Claims against the Borrower
or any of its Subsidiaries.
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(d) No Notifications or Listings. No oral or written notification of
a Release of a Hazardous Material has been filed by or on behalf of the
Borrower or any of its Subsidiaries and no site or facility now or
previously owned, operated or leased by the Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL, CERCLIS or any
similar state list of sites requiring investigation or clean-up.
(e) No Liens or Restrictions. No Liens have arisen under or pursuant
to any Environmental Laws on any site or facility owned, operated or
leased by the Borrower or any of its Subsidiaries, and no government
action has been taken or is in process that could subject any such site or
facility to such Liens and neither the Borrower nor any of its
Subsidiaries would be required to place any notice or restriction relating
to the presence of Hazardous Materials at any site or facility owned by it
in any deed to the real property on which such site or facility is
located.
(f) Full Disclosure. All environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in the
possession of the Borrower or any of its Subsidiaries in relation to
facts, circumstances or conditions at or affecting any site or facility
now or previously owned, operated or leased by the Borrower or any of its
Subsidiaries and that could result in a Material Adverse Effect have been
made available to the Lenders.
SECTION 4.08. Compliance with Laws and Agreements. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.09. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person 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.
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SECTION 4.11. 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 $2,500,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $4,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 4.12. Disclosure. The Borrower has disclosed 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 information (including, without limitation, the Information Memorandum)
furnished by or on behalf of the Obligors to the Lenders in connection with the
negotiation of this Agreement and the other Credit 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 Borrower represents only that
such projected financial information was prepared in good faith based upon
assumptions believed to be reasonable at the time, it being recognized by the
Lenders that such projected financial information include forward-looking
statements that by their very nature are subject to significant risks,
uncertainties and contingencies, many of which are beyond the control of the
Borrower and its Subsidiaries and that actual results may differ, perhaps
materially, from those expressed or implied in such forward-looking statements.
There is no fact known to the Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect that has not been
disclosed herein, in the other Credit Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the Transactions.
SECTION 4.13. Use of Credit. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin Stock.
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SECTION 4.14. Debt Agreements and Liens.
(a) Debt Agreements. Part A of Schedule II is a complete and correct
list of each credit agreement, loan agreement, indenture, purchase agreement,
guarantee, letter of credit or other arrangement providing for or otherwise
relating to any Indebtedness or any extension of credit (or commitment for any
extension of credit) to, or guarantee by, the Borrower or any of its
Subsidiaries outstanding on the date hereof, or that (after giving effect to the
transactions contemplated to occur on or before the Effective Date) will be
outstanding on the Effective Date, and the aggregate principal or face amount
outstanding or that may become outstanding under each such arrangement is
correctly described in Part A of Schedule II.
(b) Liens. Part B of Schedule II is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof
(other than intercompany debt among the Borrower and the Subsidiary Guarantors),
or that (after giving effect to the transactions contemplated to occur on or
before the Effective Date) will be outstanding on the Effective Date and
covering any property of the Borrower or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the property covered by each such Lien is correctly described in Part B of
Schedule II.
SECTION 4.15. Capitalization. As of March 17, 1999 the authorized
capital stock of the Borrower consists, of an aggregate of 31,000,000 shares
consisting of (i) 30,000,000 shares of common stock, par value $0.01 per share,
of which, 23,764,572 shares are duly and validly issued and outstanding (and
659,355 shares of which will be held in treasury), each of which shares will be
fully paid and nonassessable and (ii) 1,000,000 shares of preferred stock, none
of which is issued, outstanding or held in treasury.
SECTION 4.16. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule VI is a complete
and correct list of all of the Subsidiaries of the Borrower as of the date
hereof, and as of the Effective Date (after giving effect to the Acquisition),
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
(except that, in the case of non-Wholly Owned Subsidiaries, the identity of the
owners other than the Borrower and its Subsidiaries need not be specified) and
(iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of Schedule VI, (x) each of the
Borrower and its Subsidiaries owns, or will own on the Effective Date (after
giving effect to the transactions contemplated to occur on or before the
Effective Date), free and clear of Liens (other than Liens created pursuant to
the Security Documents), and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Part A of
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Schedule VI, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
(b) Investments. Set forth in Part B of Schedule VI is a complete
and correct list of all Investments (other than Investments disclosed in Part A
of Schedule VI and other than Investments of the types referred to in clauses
(b), (c), (d), (e) and (f) of Section 7.04) held by the Borrower or any of its
`Subsidiaries in any Person on the date hereof or that will be held on the
Effective Date (after giving effect to the transactions contemplated to occur on
or before the Effective Date) and, for each such Investment, (x) the identity of
the Person or Persons holding such Investment and (y) the nature of such
Investment. Except as disclosed in Part B of Schedule VI, each of the Borrower
and its Subsidiaries owns (or will own, after giving effect to the transactions
contemplated to occur on or before the Effective Date), free and clear of all
Liens (other than Liens created pursuant to the Security Documents), all such
Investments.
(c) Restrictions on Subsidiaries. None of the Subsidiaries of the
Borrower is, on the date hereof, subject to any indenture, agreement, instrument
or other arrangement of the type described in Section 7.07.
SECTION 4.17. Real Property. Set forth on Schedule VII is a list, as
of the date hereof, and as of the Effective Date (after giving effect to the
transactions contemplated to occur on or before the Effective Date), of all of
the real property interests held by the Borrower and its Subsidiaries,
indicating in each case whether the respective property is owned or leased, the
identity of the owner or lessee and the location of the respective property. No
Mortgage encumbers (or will encumber) real property which is located in an area
that has been identified as an area having special flood hazards and in which
flood insurance has been made available under the National Flood Insurance Act
of 1968 (other than as identified in Schedule VII).
SECTION 4.18. Solvency. As of the Effective Date and after giving
effect to the initial extensions of credit hereunder and to the other
Transactions contemplated hereby (including, without limitation, the
consummation of the Acquisition), (a) the aggregate value of all properties of
the Borrower and its Subsidiaries at their present fair saleable value (i.e.,
the amount that may be realized within a reasonable time, considered to be six
months to one year, either through collection or sale at the regular market
value, conceiving the latter as the amount that could be obtained for the
property in question within such period by a capable and diligent businessman
from an interested buyer who is willing to purchase under ordinary selling
conditions, and determined on a going concern basis), exceeds the amount of all
the debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries, (b) the Borrower
and its Subsidiaries will not, on a consolidated basis, have an unreasonably
small capital with which to conduct their business operations as
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heretofore conducted and (c) the Borrower and its Subsidiaries will have, on a
consolidated basis, sufficient cash flow to enable them to pay their debts as
they mature.
SECTION 4.19. Labor Matters. Except as set forth in Schedule VIII,
(a) on the date hereof neither the Borrower nor any of its Subsidiaries nor any
of their respective employees is subject to any collective bargaining agreement,
(b) on the date hereof, no petition for certification or union election is
pending with respect to the employees of the Borrower or any of its Subsidiaries
and no union or collective bargaining unit has sought certification or
recognition with respect to the employees of any such Person within the
three-year period ending on the Effective Date and (c) there are no strikes or
other labor disputes against the Borrower or any of its Subsidiaries pending or,
to the knowledge of the Borrower, threatened, other than any thereof that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. Hours worked by and payment made to employees of the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable law, regulation or order of any
Governmental Authority dealing with such matters that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. All
payments due from the Borrower or any of its Subsidiaries on account of employee
health and welfare insurance that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect if not paid have been
paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
SECTION 4.20. No Burdensome Restrictions. Neither the Borrower nor
any of its Subsidiaries is a party to any agreement or other contractual
arrangement imposing burdensome requirements upon the Borrower or any of its
Subsidiaries that, taking into account the benefits of such agreement or other
arrangement to the Borrower or such Subsidiary, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.21. Acquisition. As of the Effective Date (a) each of the
representations and warranties of each of the Borrower and/or its Subsidiaries,
MVE Holdings and MVE Investors in the respective Merger Agreement to which it is
a party are true and accurate as though made on or as of the Effective Date
(except for those representations and warranties that address matters only as of
a particular date or only with respect to a specific period of time which need
only be true and accurate as of such date or with respect to such period and
except for the representation of MVE Holdings set forth in Section 3.6 of the
MVE Holdings Merger Agreement which only needs to be true and correct as of the
date of the MVE Holdings Merger Agreement, except where the failure of any such
representation or warranty of MVE Holdings or MVE Investors to be true and
accurate (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) does not have a Material Adverse
Effect (as such term is defined in the respective Merger Agreement) on the
Company or a materially adverse effect on MVE Holdings' or MVE Investors' (as
the case may be) ability to
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consummate the merger contemplated by the respective Merger Agreement or the
other transactions contemplated thereby and (b) there has been no Material
Adverse Change (as such term is defined in the MVE Holdings Merger Agreement).
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Lenders to issue (or, in the case of the Existing
Letters of Credit, continue) Letters of Credit hereunder shall not become
effective until the date on which the Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to each Lender) in form
and substance (or such condition shall have been waived in accordance with
Section 10.02):
(a) Executed Counterparts. 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 to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Obligors. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Calfee, Halter & Griswold LLP, counsel for the
Obligors, and (ii) such other counsel to one or more of the Obligors, in
each case in form and substance satisfactory to the Administrative Agent
covering such matters relating to the Obligors, this Agreement and/or the
Transactions (and each Obligor hereby instructs such counsel to deliver
such opinion to the Lenders and the Administrative Agent).
(c) Opinion of Special New York Counsel to Chase. An opinion, dated
the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to Chase, substantially in form and substance satisfactory to
the Administrative Agent (and Chase hereby instructs such counsel to
deliver such opinion to the Lenders).
(d) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the
authorization of the Transactions and any other legal matters relating to
the Obligors, this Agreement or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
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(e) Officer's Certificate. A certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 5.02.
(f) Security Documents. (i) The Security Agreement substantially in
the form of Exhibit B hereto, duly executed and delivered by the Borrower,
the Subsidiary Guarantors in existence as of the Effective Date and the
Administrative Agent and (ii) a Foreign Subsidiary Pledge Agreement, in
form and substance satisfactory to the Administrative Agent, between each
Obligor that holds the equity interests of a Foreign Subsidiary (other
than Chart UK Investments Limited Partnership and the Administrative Agent
(or a sub-agent acting for the Administrative Agent), duly executed and
delivered by the parties thereto, together with (to the extent required by
the terms of any Security Document) the certificates (if any) held by the
respective Obligor and identified therein and undated stock powers
executed in blank. In addition, the respective Obligors shall have taken
such other action (including delivering to the Administrative Agent
pursuant to each such Security Document for filing, appropriately
completed and duly executed copies of Uniform Commercial Code financing
statements) as the Administrative Agent shall have requested in order to
perfect the security interests created pursuant to each such Security
Document.
(g) Mortgage and Title Insurance. The following documents, each of
which shall be executed (and, where appropriate, acknowledged) by Persons
satisfactory to the Administrative Agent:
(i) one or more Mortgages covering certain real property of
the Borrower and/or the Subsidiary Guarantors in existence as of the
Effective Date identified in Schedule VII, in each case duly
executed and delivered by the respective owner or lessee of such
property in recordable form (in such number of copies as the
Administrative Agent shall have requested) and, to the extent
necessary with respect to any leasehold property to be subjected to
a Mortgage, consents of the respective landlords with respect to
such property;
(ii) one or more mortgagee policies of title insurance on
forms of and issued by First American Title Insurance Company and/or
any other title company satisfactory to the Administrative Agent
(the "Title Companies"), insuring the validity and priority of the
Liens created under each such Mortgage for and in amounts
satisfactory to the Administrative Agent, subject only to such
exceptions as are satisfactory to the Administrative Agent and, to
the extent necessary under applicable law, for filing in the
appropriate county land office(s), Uniform
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Commercial Code financing statements covering fixtures, in each case
appropriately completed and duly executed;
(iii) as-built surveys of recent date of each of the
facilities to be covered by each such Mortgage, showing such matters
as may be required by the Administrative Agent, which surveys shall
be in form and content acceptable to the Administrative Agent, and
certified to the Administrative Agent and to each Lender and the
Title Companies, and shall have been prepared by a registered
surveyor acceptable to the Administrative Agent;
(iv) certified copies of permanent and unconditional
certificates of occupancy (or, if it is not the practice to issue
certificates of occupancy in the jurisdiction in which the
facilities to be covered by each such Mortgage are located, then
such other evidence reasonably satisfactory to the Administrative
Agent) permitting the fully functioning operation and occupancy of
each such facility and of such other permits necessary for the use
and operation of each such facility issued by the respective
governmental authorities having jurisdiction over each such
facility; and
(v) opinions, each dated the Effective Date, of local counsel
in each of the respective states in which the properties covered by
the Mortgages executed and delivered under this clause (g) are
located, in form and substance satisfactory to the Administrative
Agent (and the Borrower hereby instructs such counsel to deliver
such opinion(s) to the Lenders and the Administrative Agent).
In addition, the Borrower shall have paid to the Title Companies all
expenses and premiums of the Title Companies in connection with the
issuance of such policies and in addition shall have paid to the Title
Companies an amount equal to the recording and stamp taxes payable in
connection with recording each such Mortgage in the appropriate county
land office(s).
(h) Insurance. Certificates of insurance evidencing the existence of
all insurance required to be maintained by the Borrower pursuant to
Section 6.05(b) and the designation of the Administrative Agent as the
loss payee or additional named insured, as the case may be, thereunder to
the extent required by Section 6.05(b), such certificates to be in such
form and contain such information as is specified in Section 6.05(b). In
addition, the Borrower shall have delivered a certificate of a Financial
Officer of the Borrower setting forth the insurance obtained by it in
accordance with the requirements of Section 6.05(b) and stating that such
insurance is in full force and effect and that all premiums then due and
payable thereon have been paid.
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(i) Solvency Certificate. A certificate of the chief financial
officer of the Borrower as to the solvency of the Borrower as of the
Effective Date and after giving effect to the initial extension of credit
hereunder, the Acquisition and to the other transactions contemplated
hereby.
(j) Repayment of Existing Indebtedness. Evidence that the principal
of and interest on, and all other amounts owing in respect of, the
Indebtedness (including any contingent or other amounts payable in respect
of letters of credit) indicated on Schedule II (including, without
limitations, all amounts outstanding under the Existing Credit Agreement)
that is to be repaid on the Effective Date shall have been (or shall be
simultaneously) paid in full, that any commitments to extend credit under
the agreements or instruments relating to such Indebtedness shall have
been canceled or terminated and that all Guarantees in respect of, and all
Liens securing, any such Indebtedness shall have been released (or
arrangements for such release satisfactory to the Administrative Agent
shall have been made).
(k) Acquisition. Evidence that:
(i) the Acquisition shall be simultaneously consummated in
accordance with the terms of the Acquisition Documents without
giving effect to any modification, supplement or waiver thereof not
approved by the Required Lenders;
(ii) without limiting the foregoing, each of the conditions
set forth in clauses (a), (b) and (c) of Section 7.2 of the MVE
Holdings Merger Agreement shall have been satisfied without giving
effect to any modification, supplement or waiver thereof not
approved by the Required Lenders;
(iii) all governmental and third party approvals in connection
with the Transactions shall have been obtained and be in full force
and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose
materially adverse conditions on the Transactions or the financing
thereof;
(iv) there shall be no action, suit or proceeding at law or in
equity or by or before any Governmental Authority pending or, to the
knowledge of the Borrower, threatened against the Borrower or any
other party to the Acquisition Documents or relating to the
Transactions that could reasonably be expected to have a material
adverse effect on the ability of the Borrower or any of the other
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parties to the Acquisition Documents to consummate the Transactions
or that could reasonably be expected to restrain, prevent or impose
materially burdensome conditions on any of the Transactions;
(v) the aggregate consideration and other amounts payable by
the Borrower and its Subsidiaries in connection with the
consummation of the Acquisition shall not exceed $254,300,000
(including the aggregate amount of the Indebtedness assumed in
connection therewith); and
(vi) the sources and uses of the funds for the consummation of
the Acquisition and the other transactions contemplated to occur in
connection therewith shall be as set forth in the Information
Memorandum;
and the Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower to such effect and to the effect that
attached thereto are true and complete copies of each of the documents
delivered in connection with the closing of the Acquisition pursuant to
the Merger Agreements. In addition, the Administrative Agent shall have
received copies of the legal opinions (if any) delivered to the Borrower
pursuant to the Merger Agreements in connection with the Acquisition,
together with a letter from each Person delivering such opinion (or
authorization within such opinion) authorizing reliance thereon by the
Administrative Agent and the Lenders, it being understood that the
Borrower shall request counsel for MVE Holdings and MVE Investors to
deliver such a reliance letter.
(l) Offer to Purchase. A true and complete copy of the Offer to
Purchase prepared by the Borrower and in the final form mailed to the
holders of the Senior Secured Notes.
(m) Lien Searches. The results of a recent search, by a Person
satisfactory to the Administrative Agent, of Uniform Commercial Code,
judgment and tax lien filings in each relevant jurisdiction where property
of the Obligors is located, and the results of such search shall reveal no
Liens on any of the property of the Obligors except for those permitted
under Section 7.02 or Liens to be discharged on or prior to the Effective
Date pursuant to documentation satisfactory to the Administrative Agent.
(n) Approvals. All material governmental and third party approvals
(including landlords' and other consents) necessary or, in the discretion
of the Administrative Agent, advisable in connection with the Acquisition,
the financing contemplated hereby and the continuing operations of the
Borrower and its Subsidiaries (including, without limitation, the
ownership of the Property to be acquired pursuant to the Acquisition)
shall have been
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obtained and be in full force and effect, and all applicable waiting
periods shall have expired without any action being taken or threatened by
any competent authority which would restrain, prevent or otherwise impose
adverse conditions on the Acquisition or the financing thereof.
(o) Other Documents. Such other documents as the Administrative
Agent or any Lender or special New York counsel to Chase may reasonably
request.
The obligation of any Lender to make its initial extension of credit
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to Chase, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Credit Documents and the extensions of credit hereunder (to the extent
that statements for such fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower 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 Lenders 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) on or prior to 3:00 p.m., New York City time, on
April 22, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of each Issuing Lender to
issue, continue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement, and of each Obligor in each of the Credit Documents to
which it is a party, 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; and
(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 the preceding
sentence.
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SECTION 5.03. Conditions to Application of Term Loan Proceeds. The
proceeds of the Term Loans (including any proceeds that have been deposited into
the Bond Tender Offer Collateral Account pursuant to Section 2.06(c)) shall not
be applied to pay any amounts payable in respect of the consummation of the Bond
Tender Offer unless and until (a) each of the conditions to the Offer to
Purchase shall have been satisfied (or waived with the concurrence of the
Required Lenders) and (b) each of the following conditions shall be satisfied
(to the satisfaction of the Administrative Agent (and, in the case of each
document required to be delivered below, such document shall be satisfactory to
the Administrative Agent in form and substance), unless such condition shall
have been waived in accordance with Section 10.02:
(i) evidence of the tendering and acceptance for purchase of at
least $75,000,000 of the Senior Secured Notes at an average price not
exceeding 111.6% of the par value of such Senior Secured Notes pursuant to
the Bond Tender Offer;
(ii) a Supplemental Indenture (as defined in the Offer to Purchase)
duly executed by the trustee party thereto as consented to by the holders
of at least 66-2/3rds in principal amount of the Senior Secured Notes
providing for the effectiveness of the "Proposed Amendments" (as defined
in the Offer to Purchase) to the Senior Secured Notes Indenture;
(iii) a Guarantee Assumption Agreement, duly completed and executed
by each of MVE Holdings and its Subsidiaries (other than any Foreign
Subsidiaries of MVE Holdings) and the Administrative Agent;
(iv) the MVE Guarantee Agreement in form and substance satisfactory
to the Administrative Agent, duly executed and delivered by MVE and the
Administrative Agent in connection with the Mortgage(s) to be entered into
by MVE hereunder in respect of certain of its real property interests
located in the State of Minnesota;
(v) such documents (including shares of stock, Uniform Commercial
Code financing statements and mortgages or deeds of trust covering the
real property identified on Schedule VII and fixtures owned or leased by
MVE and its Subsidiaries, other than any Foreign Subsidiaries of MVE
Holdings) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the property of
MVE and its Subsidiaries as collateral security for the obligations of MVE
and its Subsidiaries hereunder;
(vi) such documents and certificates as the Administrative Agent or
its counsel may reasonably request relating to the organization, existence
and good standing of MVE
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and its Subsidiaries, opinions of counsel and other documents as is
consistent with those delivered by each Obligor pursuant to Section 5.01
on the Effective Date or as the Administrative Agent shall have requested;
(vii) a certificate dated the Bond Tender Offer Closing Date and
signed by a Financial Officer of the Borrower certifying (i) as to
satisfaction of the conditions under clause (a) of this Section, (ii) the
representations and warranties of the Borrower set forth in this
Agreement, and of each Obligor (including MVE Holdings and its
Subsidiaries) in each of the Credit Documents to which it is a party
(including, without limitation, the Credit Documents executed and
delivered pursuant to this Section), shall be true and correct on and as
of the Bond Tender Offer Closing Date; and (iii) as of the Bond Tender
Offer Closing Date, no Default shall have occurred and be continuing; and
(viii) such other documents as the Administrative Agent or any
Lender or special New York counsel to Chase may reasonably request.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, (i) the audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows of the
Borrower and its Subsidiaries 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 Ernst & Young 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 Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied and
(ii) the unaudited consolidating balance sheets and related statements of
operations of each of the Borrower and its
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Subsidiaries 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
certified by a Financial Officer of the Borrower as presenting fairly in
all material respects the respective consolidating financial condition and
results of operation of each of the Borrower and its Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(b) within 45 days after the end of each fiscal quarter of the
Borrower, the unaudited consolidated and consolidating balance sheets and
related statements of operations (and in the case of consolidated
statements, related statements of stockholders equity and cash flows) of
the Borrower and its Subsidiaries 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 (or, in the case of the
balance sheet, as of the end of) the corresponding period or periods of
the previous fiscal year, all certified by a Financial Officer of the
Borrower as presenting fairly in all material respects the consolidated or
respective consolidating, as the case may be, financial condition and
results of operations of the Borrower and/or its Subsidiaries, as the case
may be, 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) of this Section, a certificate of a Financial Officer of
the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
7.01, 7.05, 7.08 and 7.09, (iii) with respect to such financial statements
delivered under such clause (a), setting forth reasonably detailed
calculations of Excess Cash Flow as of the end of the relevant fiscal
year, and (iv) 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 4.04 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) of this Section, 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 upon receipt thereof, copies of all significant reports
submitted to the Borrower or any of its Subsidiaries by independent public
accountants in connection
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with each annual, interim or special audit of the financial statements of
the Borrower and its Subsidiaries made by such accountants, including the
comment letter submitted by such accountants to management in connection
with their annual audit;
(f) as soon as available but in any event no later than 60 days
after the commencement of each fiscal year of the Borrower, an annual
budget for such fiscal year of the Borrower and its Subsidiaries, setting
forth in comparative form the corresponding figures for the corresponding
periods in the immediately preceding fiscal year;
(g) promptly upon the mailing thereof to the holders of the Senior
Secured Notes, copies of all notices, requests, offers, demands, reports
or other information furnished to such holders;
(h) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any of its Subsidiaries 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 Borrower to its shareholders generally, as the case may
be; and
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Credit Documents, as the Administrative Agent or
any Lender may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of (i) any Default or (ii) any Default under and
as defined in the Senior Secured Notes Indenture;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Borrower or any of its Affiliates that, if adversely determined, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $5,000,000;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
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(d) the assertion of any Environmental Claim by any Person against,
or with respect to the activities of, the Borrower or any of its
Subsidiaries and any alleged violation of or non-compliance with any
Environmental Laws or any permits, licenses or authorizations, other than
any Environmental Claim or alleged violation that, if adversely
determined, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;
and
(e) 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 Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03(a).
SECTION 6.04. Payment of Obligations. The Borrower 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 Borrower 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 6.05. Maintenance of Properties; Insurance. The Borrower
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, 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.
SECTION 6.06. Books and Records; Inspection. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives
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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, employees and independent accountants, all at such reasonable
times and as often as reasonably requested (which visits and inspections shall
be at the Borrower's sole expense after the occurrence and during the
continuance of any Default or in the case of any visit or inspection by the
Administrative Agent and at the Lenders' sole expense at any other time).
SECTION 6.07. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable laws (including,
without limitation, Environmental Laws), rules, regulations, orders, permits or
other authorization of or from any Governmental Authority, 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 6.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only to finance the Acquisition, to refinance, in part,
certain existing Indebtedness of the Borrower and its Subsidiaries and for
working capital and other general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business. Upon satisfaction of each of
the conditions in Section 5.03, a portion of the proceeds of the Term Loans will
be used to pay the purchase price and related amounts in respect of the
consummation of the Bond Tender Offer. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and
X.
SECTION 6.09. Hedging Agreements. The Borrower will within 90 days
of the Effective Date enter into, and thereafter maintain in full force and
effect, one or more Hedging Agreements with one or more of the Lenders or any of
their respective Affiliates (and/or with a bank or other financial institution
having capital, surplus and undivided profits of at least $500,000,000), that
effectively enables the Borrower (in a manner satisfactory to the Administrative
Agent) to protect itself against interest rate exposure as to a notional
principal amount at least equal to 50% of the aggregate outstanding principal
amount of the Term Loans for a period of at least three years measured from the
Effective Date.
SECTION 6.10. Certain Obligations Respecting Subsidiaries and
Collateral.
(a) Subsidiary Guarantors. The Borrower will take such action, and
will cause each of its Subsidiaries to take such action, from time to time as
shall be necessary to ensure that all Subsidiaries of the Borrower are
"Subsidiary Guarantors" hereunder; provided that, notwithstanding anything
herein to the contrary, the following Subsidiaries shall not be, or be required
to become, Subsidiary Guarantors: (i) CHD and any of its Subsidiaries; (ii) any
Foreign
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Subsidiary and any of its Subsidiaries; and (iii) prior to the Bond Tender Offer
Closing Date, MVE and its Subsidiaries. Without limiting the generality of the
foregoing, in the event that the Borrower or any of its Subsidiaries shall form
or acquire any new Subsidiary (other than a Foreign Subsidiary) that shall
constitute a Subsidiary hereunder, the Borrower and its Subsidiaries will cause
such new Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder and an "Obligor" and
an "Issuer" under the Security Agreement pursuant to a Guarantee
Assumption Agreement;
(ii) cause such Subsidiary to take such action (including delivering
such shares of stock, executing and delivering such Uniform Commercial
Code financing statements and executing and delivering mortgages or deeds
of trust covering the real property and fixtures owned or leased by such
Subsidiary) as shall be necessary to create and perfect valid and
enforceable first priority Liens on substantially all of the property of
such new Subsidiary as collateral security for the obligations of such new
Subsidiary hereunder; and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by each Obligor pursuant to Section 5.01 on the Effective
Date or as the Administrative Agent shall have requested.
Notwithstanding the foregoing, if such new Subsidiary is a Foreign
Subsidiary such new Subsidiary shall not be required to become a Subsidiary
Guarantor hereunder or an Obligor under the Security Agreement, but the Borrower
will, and will cause each of its Subsidiaries, to pledge the shares of capital
stock of each Foreign Subsidiary that is directly owned by a Subsidiary which is
not a Foreign Subsidiary to the Administrative Agent (for the benefit of the
Lenders) under the Security Agreement (or, at the request of the Administrative
Agent, under a Foreign Subsidiary Pledge Agreement in form and substance
satisfactory to the Administrative Agent), provided that such pledge shall not
cover more than (x) 65% of the voting capital stock of such Foreign Subsidiary
having ordinary voting power for the election of the board of directors of such
Subsidiary and (y) 100% of all other capital stock of such Foreign Subsidiary.
(b) Ownership of Subsidiaries. The Borrower will, and will cause
each of its Subsidiaries to, take such action from time to time as shall be
necessary to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary,
provided that, in the case of any Subsidiary that as of the Effective Date is
not a Wholly Owned Subsidiary as identified on Schedule VI, the Borrower will,
and will cause of its Subsidiaries to, own not less than the percentage of such
ownership interests of such Subsidiaries owned as of the Effective Date. In the
event that any
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shares of stock or other equity interests shall be issued by any Subsidiary
(including, without limitation, any Subsidiary formed or acquired after the date
hereof), subject (in the case of any Foreign Subsidiary) to the last paragraph
of paragraph (a) of this Section, the respective Obligor agrees forthwith to
deliver to the Administrative Agent pursuant to the relevant Security Document
the certificates (if any) evidencing such shares of stock or other equity
interests, accompanied by undated stock powers executed in blank and to take
such other action as the Administrative Agent shall request to perfect the
security interest created therein pursuant to the relevant Security Document.
(c) Real Property. Promptly upon (but in any event within 30 days
following) the acquisition of any real property interests (including leasehold
interests) after the Effective Date, the Borrower will, and will cause each of
the Subsidiary Guarantors to, execute and deliver from time to time a Mortgage
covering such real property as collateral security for the obligations of the
Obligors under this Agreement and the other Credit Documents, together with the
other instruments and documents with respect thereto consistent with the
requirements under Section 5.01(g), each in form and substance satisfactory to
the Administrative Agent.
SECTION 6.11. Senior Secured Notes.
(a) Upon the consummation of the Acquisition, the Borrower will
cause MVE to make a Change of Control Offer (as defined in the Senior Secured
Notes Indenture) in accordance with Section 4.14 of the Senior Secured Notes
Indenture.
(b) In the event that the Bond Tender Offer Closing Date shall not
have occurred prior to the date 40 days after the Effective Date, the Borrower
will, promptly after February 15, 2000 (but not later than April 15, 2000),
cause MVE to redeem in full all of the outstanding Senior Secured Notes in
accordance with Section 5 of the Senior Secured Notes.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
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(a) Indebtedness created hereunder and under the other Credit
Documents;
(b) Indebtedness (including the Senior Secured Notes) existing on
the date hereof and set forth in Part A of Schedule II (excluding,
however, following the making of the initial Loans hereunder, the
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
Schedule II), and any extensions, renewals or replacements of any such
Indebtedness (other than the Senior Secured Notes);
(c) (i) unsecured Indebtedness of the Borrower owing to any
Subsidiary (including Guarantees by the Borrower of Indebtedness of any
Subsidiary), provided that, in case of any such Indebtedness owing to, or
any such Guarantee of Indebtedness of, any Subsidiary which is not a
Subsidiary Guarantor, the payment of such Indebtedness (or such Guarantee,
as the case may be) shall be subordinated to the prior payment in full of
all obligations of the Borrower under the Credit Documents; or (ii)
Indebtedness of any Subsidiary owing to the Borrower or any other
Subsidiary (including Guarantees by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary), provided that, in the case of any such
Indebtedness owing by any Subsidiary Guarantor to, or any such Guarantee
by any Subsidiary Guarantor of Indebtedness of, any Subsidiary which is
not a Subsidiary Guarantor, the payment of such Indebtedness (or such
Guarantee, as the case may be) shall be subordinated to the prior payment
in full of all obligations of such Subsidiary Guarantor under the Credit
Documents; provided further that the aggregate amount of all such
Guarantees by the Obligors of Indebtedness of Subsidiaries that are not
Subsidiary Guarantors shall not exceed $30,000,000 at any time outstanding
(which shall include any such Guarantees outstanding as of the Effective
Date so long as the same remain outstanding);
(d) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations, and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof; provided that (i) the amount of
such Indebtedness does not exceed the purchase or acquisition price or
such asset (or any such improvement) and (ii) the aggregate principal
amount of Indebtedness permitted by this clause (d) shall not exceed
$10,000,000 at any time outstanding; and
(e) other unsecured Indebtedness in an aggregate principal amount
not exceeding $20,000,000 at any time outstanding.
SECTION 7.02. Liens. The Borrower will not, nor will it permit any
of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now
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owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any of its
Subsidiaries existing on the date hereof and set forth in Part B of
Schedule II (excluding, however, following the making of the initial Loans
hereunder, Liens securing Indebtedness to be repaid with the proceeds of
such Loans, as indicated on Schedule II); provided that (i) no such Lien
shall extend to any other property or asset of the Borrower or any of its
Subsidiaries and (ii) any such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof; and
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, securing Indebtedness
permitted by clause (d) of Section 7.01.
SECTION 7.03. Fundamental Changes.
(a) Mergers, Consolidations, Etc. The Borrower will not, nor will it
permit any of its Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with
it, or liquidate or dissolve (other than the mergers contemplated by the
Merger Agreements that shall be effected as of the Effective Date), except
that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing:
(i) any Subsidiary of the Borrower may merge into the Borrower
in a transaction in which the Borrower is the surviving corporation;
(ii) any Subsidiary of the Borrower may merge into any other
Subsidiary of the Borrower in a transaction in which the surviving
entity is a Subsidiary Guarantor;
(iii) any Foreign Subsidiary of the Borrower may merge into
any other Foreign Subsidiary of the Borrower; and
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(iv) any Subsidiary of the Borrower may liquidate or dissolve
if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders (and the Borrower shall
give prompt written notice of such liquidation or dissolution to the
Administrative Agent).
(b) Dispositions. The Borrower will not, nor will it permit any of
its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of
any part of its business or property, whether now owned or hereafter
acquired including receivables and leasehold interests, except:
(i) the disposition of any inventory or other property in the
ordinary course of business and on ordinary business terms;
(ii) the disposition of obsolete or worn-out property, tools
or equipment no longer used or useful in its business so long as the
amount thereof sold in any fiscal year by the Borrower and its
Subsidiaries shall not have an aggregate fair market value in excess
of $1,000,000;
(iii) any Subsidiary of the Borrower may sell, transfer, lease
or otherwise dispose of its assets to the Borrower or to another
Subsidiary, provided that the aggregate fair market value of assets
that may be so sold, transferred, leased or disposed of to
Subsidiaries that are not Subsidiary Guarantors shall not exceed
$5,000,000; and
(iv) the conveyance, sale, lease, transfer of other
disposition of assets by the Borrower or any of its Subsidiaries
(other than to any Subsidiaries that are not Subsidiary Guarantors)
not exceeding an aggregate fair market value of $15,000,000 in the
fiscal year ending December 31, 1999 and $5,000,000 in any fiscal
year thereafter; provided that the proceeds from any such
conveyance, sale, lease, transfer or other disposition are used to
prepay the Loans to the extent required by Section 2.10(b)(v).
(c) Acquisitions. The Borrower will not, nor will it permit any of
its Subsidiaries to, acquire any business or property from, or capital
stock of, or be a party to any acquisition of, any Person, or acquire any
option to make any such acquisition, except:
(i) purchases of inventory and other property to be sold or
used in the ordinary course of business;
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(ii) Investments permitted under Section 7.04;
(iii) Capital Expenditures;
(iv) acquisitions by the Borrower or any Subsidiary Guarantor
of assets from any other Subsidiary, or acquisitions by any Foreign
Subsidiary of assets from any other Foreign Subsidiary;
(v) the consummation of the Acquisition and the other
transaction contemplated by the Acquisition Documents;
(vi) acquisitions by the Borrower or any Subsidiary Guarantor
of assets from any Person (other than the Borrower or any
Subsidiary) not exceeding $10,000,000 in the aggregate (excluding
any assets purchased with any Indebtedness permitted under Section
7.01(d)); and
(vii) (in addition any acquisition permitted under the
foregoing clauses) other acquisitions by the Borrower or any of its
Subsidiaries not exceeding $1,000,000 in the aggregate.
(d) Lines of Business. The Borrower will not, nor will it permit any
of its Subsidiaries to, engage to any material extent in any business
other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
SECTION 7.04. Investments. The Borrower will not, nor will it permit
any of its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) Investments outstanding on the date hereof and identified in
Part B of Schedule VI;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) (i) Investments by the Borrower or any of its Subsidiaries in
the Borrower and its Subsidiaries on the date hereof, and (ii) additional
Investments in the Subsidiaries after the date hereof, provided that the
aggregate amount of such additional Investments in Subsidiaries that are
not Subsidiary Guarantors shall not exceed (A) $5,000,000 in any fiscal
year or (B) $30,000,000 in the aggregate, and provided further that if the
aggregate
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amount of such Investments for any fiscal year shall be less than
$5,000,000 the unused amount may be carried forward and invested in such
Investments in any succeeding fiscal year (subject to the limitations in
subclause (B) above);
(e) Hedging Agreements (including, without limitation, the Hedging
Agreements required by Section 6.09) entered into in the ordinary course
of the Borrower's financial planning and not for speculative purposes;
(f) Investments consisting of security deposits with utilities and
other like Persons made in the ordinary course of business;
(g) the consummation of the Acquisition and the other transactions
contemplated by the Acquisition Documents;
(h) Indebtedness permitted under Section 7.01; and
(i) additional Investments up to but not exceeding $5,000,000 in the
aggregate.
For purposes of clause (i) of this Section, the aggregate amount of an
Investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair market value of property, loaned,
advanced, contributed, transferred or otherwise invested that gives rise to such
Investment minus (B) the aggregate amount of dividends, distributions or other
payments received in cash in respect of such Investment; the amount of an
Investment shall not in any event be reduced by reason of any write-off of such
Investment nor increased by any increase in the amount of earnings retained in
the Person in which such Investment is made that have not been dividended,
distributed or otherwise paid out.
SECTION 7.05. Restricted Payments. The Borrower will not, nor will
it permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that:
(a) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock;
(b) the Borrower or any of its Subsidiaries may make the Restricted
Payments contemplated by the Acquisition Documents;
(c) the Borrower may purchase shares of its common stock for
purposes of making contributions to the Borrower's employee benefits plan
or in connection with its
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employee stock option plans, provided that the aggregate amount of such
purchases shall not exceed $5,000,000 in any fiscal year; and
(d) if at the time thereof and immediately after giving effect
thereto no Event of Default shall have occurred and be continuing, the
Borrower may declare and pay cash dividends with respect to its capital
stock not exceeding $7,200,000 in any fiscal year.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrower.
SECTION 7.06. Transactions with Affiliates. The Borrower will not,
nor will it 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) transactions in the ordinary course of business at prices and on
terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third
parties;
(b) transactions between or among the Borrower and its Subsidiaries
that are Subsidiary Guarantors not involving any other Affiliate;
(c) any Restricted Payment permitted by Section 7.05; and
(d) the transactions contemplated by the Acquisition Documents.
SECTION 7.07. Restrictive Agreements. The Borrower will not, nor
will it 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 Borrower 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 Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that:
(i) the foregoing shall not apply to (w) restrictions and
conditions imposed by law or by this Agreement, (x) restrictions and
conditions existing on the date hereof under the Senior Secured Notes
Indenture as then in effect, (y) other restrictions and conditions
existing on the date hereof identified on Schedule III (but shall apply to
any extension or renewal of, or any amendment or modification expanding
the scope of,
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any such restriction or condition) and (z) 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;
and
(ii) clause (a) of the foregoing shall not apply to (x)
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 (y) customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 7.08. Operating Leases. The Borrower will not nor will it
permit any of its Subsidiaries to, become or remain liable in any way, whether
directly or indirectly or by assignment or as a guarantor or other surety, for
the obligations of the lessee under any operating leases (other than
intercompany leases between the Borrower and its Subsidiaries), if the aggregate
amount of all rents paid by the Borrower and its Subsidiaries under all such
operating leases would exceed $7,500,000 in any fiscal year.
SECTION 7.09. Certain Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Leverage Ratio
to exceed the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From June 30, 1999 through 4.25:1.0
December 31, 1999
From January 1, 2000 through 3.75:1.0
December 31, 2000
From January 1, 2001 through 3.25:1.0
December 31, 2001
From January 1, 2002 through 2.75:1.0
December 31, 2002
From January 1, 2003 and 2.50:1.0
thereafter
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(b) Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio to be less than the following respective ratios as at
the last day of any fiscal quarter ending during the following respective
periods:
Period Ratio
------ -----
From June 30, 1999 through 2.25:1.0
December 31, 1999
From January 1, 2000 through 2.75:1.0
December 31, 2000
From January 1, 2001 through 3.00:1.0
December 31, 2001
From January 1, 2002 through 3.25:1.0
December 31, 2002
From January 1, 2003 through 3.50:1.0
December 31, 2003
From January 1, 2004 through 3.75:1.0
December 31, 2005
From January 1, 2006 and 4.00:1.0
thereafter
(c) Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio to be less than 1.25:1.0.
(d) Net Worth. The Borrower will not permit its Net Worth to be less
than the sum of (a) $60,000,000 plus (b) 50% of net income (if positive) of the
Borrower and its Subsidiaries (determined on a consolidated basis in accordance
with GAAP) for each fiscal quarter commencing with the fiscal quarter ending
June 30, 1999.
SECTION 7.10. Modifications of Certain Documents; Payment of Senior
Secured Notes.
(a) The Borrower will not consent to any modification, supplement or
waiver of any of the provisions of any agreement, instrument or other document
evidencing or relating to
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(i) the charter or by-laws of the Borrower or any of its Subsidiaries, (ii) the
Senior Secured Notes or the Senior Secured Notes Indenture (other than the
amendments contemplated in the Offer to Purchase), (iii) the Acquisition
Documents, (iv) the Offer to Purchase or (v) any material lease, in each case
without the prior consent of the Administrative Agent (with the approval of the
Required Lenders).
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set
apart any money for a sinking, defeasance or analogous fund for the purchase,
redemption, retirement or other acquisition of, or make any payment or
prepayment of the principal of or interest on, or any other amount owing in
respect of, the Senior Secured Notes, except for: (i) regularly scheduled
payments of principal of or interest on the Senior Secured Notes in accordance
with the terms thereof and of the Senior Secured Notes Indenture, each as in
effect on the Effective Date; (ii) the payments in respect of the consummation
of the Bond Tender Offer; and (iii) the redemption of the Senior Secured Notes
required by Section 6.11(b).
SECTION 7.11. Sale and Leaseback. The Borrower will not, nor will
it permit any of its Subsidiaries to, enter into any arrangement with any other
Person providing for the leasing by the Borrower or any of its Subsidiaries of
real or personal property that has been or is to be sold or transferred by the
Borrower or any of its Subsidiaries to such other Person or to any other Person
to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of the Borrower or any of its Subsidiaries,
other than such transactions not exceeding an aggregate sale price of
$5,000,000.
SECTION 7.12. Fiscal Year. The Borrower will not, nor will it permit
any of its Subsidiaries to, change its fiscal year from a calendar year ending
December 31.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the 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;
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(b) the 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 under any other Credit
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three or more Business
Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries in or in connection with
this Agreement or any other Credit Document or any amendment or
modification hereof or thereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
this Agreement or any other Credit Document or any amendment or
modification hereof or thereof, shall prove to have been incorrect when
made or deemed made in any material respect; or any representation or
warranty made by the Borrower, any of its Subsidiaries, MVE Holdings or
MVE Investors under the respective Merger Agreements shall prove to have
been incorrect when made in any material respect;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.02(a), 6.03 (with respect to
the Borrower's existence), 6.08 or 6.10 or in Article VII or any Obligor
shall default in the performance of any of its obligations contained in
Section 4.02 or 5.02 of the Security Agreement or any provisions of the
Mortgages;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) or any other Credit
Document and such failure shall continue unremedied for a period of 30 or
more days after notice thereof from the Administrative Agent (given at the
request of any Lender) to the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Indebtedness (other than Indebtedness hereunder and under
the other Credit Documents) aggregating $5,000,000 or more, or any payment
of any amount under Hedging Agreements for an aggregate notional principal
amount exceeding $5,000,000, in each case when and as the same shall
become due and payable;
(g) any event or condition occurs that results in any Indebtedness
(other than Indebtedness hereunder and under the other Credit Documents)
aggregating $5,000,000 or more becoming due prior to its scheduled
maturity or that enables or permits (with or without the giving of notice,
the lapse of time or both) the holder or holders of any such Indebtedness
or any trustee or agent on its or their behalf to cause any such
Indebtedness
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to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Subsidiaries or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any of its Subsidiaries or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for a period of 60 or more days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any of its Subsidiaries or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any 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 Borrower or any of its Subsidiaries shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower or
any of its Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any of its Subsidiaries 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
Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000;
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(m) there shall have been asserted against the Borrower or any of
its Subsidiaries an Environmental Claim that, in the judgment of the
Required Lenders, is reasonably likely to be determined adversely to the
Borrower or any of its Subsidiaries, and the amount thereof (either
individually or in the aggregate) is reasonably likely to result in
liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000 (insofar as such amount is payable by the Borrower
or any of its Subsidiaries but after deducting any portion thereof that is
reasonably expected to be paid by other creditworthy Persons jointly and
severally liable therefor);
(n) a Change in Control shall occur;
(o) any Subsidiary of the Borrower shall cease to be a Wholly Owned
Subsidiary (except as (i) a result of any transactions expressly permitted
under Article VII or (ii) otherwise permitted under Section 6.10(b)); or
(p) other than in connection with any termination of any Lien
permitted hereunder or any of the Security Documents, the Liens created by
the Security Documents shall at any time not constitute a valid and
perfected Lien on the collateral intended to be covered thereby (to the
extent perfection by filing, registration, recordation or possession is
required herein or therein) in favor of the Administrative Agent, free and
clear of all other Liens (other than Liens permitted under Section 7.02 or
under the respective Security Documents), or, except for expiration or
termination in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and
effect, or the enforceability thereof shall be contested in writing by any
Obligor;
then, and in every such event (other than an event with respect to any Obligor
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may (in the case
of an event described in clause (a) or (b) of this Article) and shall at the
request of, or with the consent of the Required Lenders, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable 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 Obligors
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 Obligor; provided that in case of any event with respect
to any Obligor described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
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together with accrued interest thereon and all fees and other obligations of the
Obligors 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 Obligor.
Anything herein to the contrary notwithstanding, it is understood
that (i) no Lender has the right to individually terminate its Commitments (such
right of termination residing with the Administrative Agent as provided above),
(ii) no Lender has the right to declare its Loans due and payable (such right to
declare the Loans due and payable residing with the Administrative Agent as
provided above, subject to the proviso set forth above in the case of an Event
of Default under clause (h) or (i) of this Article), and (iii) no Lender has the
right to exercise any remedies under the Security Agreement (such right to
exercise remedies residing with the Administrative Agent as provided therein).
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Credit Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Credit Documents.
Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders, and (c) except
as expressly set forth herein and in the other Credit Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that
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is communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Credit 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 this
Agreement, any other Credit Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for an Obligor), 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.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent (including, without limitation, under any
Security Document). The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent. Each Lender by its
execution and delivery of this Agreement agrees, as contemplated by Section 4.04
of the Security Agreement, that, in the event it shall hold any Permitted
Investments referred to therein, such Permitted Investments shall be held in the
name and under the control of such Lender, and such Lender shall hold such
Permitted Investments as a collateral sub-agent for the Administrative Agent
thereunder. Each Obligor by its execution and delivery of this Agreement hereby
consents to the foregoing.
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The Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent's resignation shall nonetheless become effective
and (i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (ii) the Required Lenders shall perform the duties
of the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Notwithstanding anything herein to the contrary, the Lead Arranger
and Book Manager named on the cover page of this Agreement and the Documentation
Agent shall not have any duties or liabilities under this Agreement or the other
Credit Documents.
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ARTICLE X
MISCELLANEOUS
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 the Borrower or any Subsidiary Guarantor, to the Borrower
at Chart Industries, Inc., 5885 Landerbrook Drive, Suite 150, Mayfield
Heights, Ohio 44124, Attention of Don A. Baines (Telecopy No. (440)
753-1491; Telephone No. (440) 753-1490);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, 1
Chase Manhattan Plaza, 8th Floor, New York, New York 10081, Attention of
Mo-Lin Sum, Loan and Agency Services Group (Telecopy No. (212) 552-5650;
Telephone No. (212) 552-7312), with a copy to The Chase Manhattan Bank,
2300 Main Place Tower, Buffalo, New York 14202, Attention of Jennifer Pegg
(Telecopy No. (716) 843-4938; Telephone No. (716) 858-1435);
(c) if to the Swingline Lender, to The Chase Manhattan Bank, 1 Chase
Manhattan Plaza, 8th Floor, New York, New York 10081, Attention of Mo-Lin
Sum, Loan and Agency Services Group (Telecopy No. (212) 552-5650;
Telephone No. (212) 552-7312);
(d) if to an Issuing Lender, to it at its address specified in
writing to the Borrower and the Administrative Agent;
(e) if to the Foreign Currency Lender, to it at its address
specified in writing to the Borrower and the Administrative Agent; and
(f) if to a 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 (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). 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.
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SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by
the Administrative Agent, any Issuing Lender or any Lender in exercising any
right or power hereunder 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 Lenders and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Obligor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which 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 any Issuing Lender may have had notice or knowledge of such
Default at the time.
(b) Amendments to this Agreement. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent 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 or forgive the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce or forgive
any fees payable hereunder, without the written consent of each Lender
affected thereby;
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby;
(iv) alter the manner in which payments or prepayments of principal,
interest or other amounts hereunder shall be applied as among the Lenders
or Types or Classes of Loans, without the written consent of each Lender
affected thereby;
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(v) change any of the provisions of this Section or the definition
of the term "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or
(vi) release any Guarantor from any of its guarantee obligations
under Article III or any Security Document, without the written consent of
each Lender (except that no such consent shall be required, and the
Administrative Agent is hereby authorized, to release any Guarantor from
such obligations that is the subject of a disposition or other transaction
which is permitted hereunder or to which the Required Lenders have
consented).
and provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Lender, the
Swingline Lender or the Foreign Currency Lender hereunder without the prior
written consent of the Administrative Agent, the affected Issuing Lender, the
Swingline Lender or the Foreign Currency Lender, as the case may be, and (y)
that any modification or supplement of Article III shall require the consent of
each Guarantor.
Anything in this Agreement to the contrary, no waiver or
modification of any provision of this Agreement that has the effect (either
immediately or at a later time) of (i) enabling the Borrower to satisfy a
condition precedent to the making of a Loan of any Class shall be effective
against the Lenders of such Class, unless the Required Lenders of such Class
(whichever Class is so affected) shall have concurred with such waiver on
modification or (ii) waiving or modifying any of the requirements of Section
5.03, or altering the conditions to the application of the proceeds of the Term
Loans to the consummation of the Bond Tender Offer, unless the Required Lenders
of each Class of Term Loans shall have concurred with such waiver or
modification.
(c) Amendments to Other Credit Documents. Except as otherwise
provided in Section 10.02(b) with respect to this Agreement, the Administrative
Agent may, with the prior consent of the Required Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Credit
Documents, provided that, without the prior consent of each Lender, the
Administrative Agent shall not (except as provided herein or in the Security
Documents) (i) release all or substantially all of the collateral under the
Security Documents or otherwise terminate the Liens with respect to such
collateral, (ii) agree to additional obligations (other than obligations of the
type secured under the Security Documents) being secured by such collateral
security (unless the Lien for such additional obligations shall be junior to the
Lien securing the obligations secured by such Security Document, in which event
the Administrative
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Agent may consent to such junior Lien and enter into appropriate intercreditor
arrangements provided that it obtains the consent of the Required Lenders
thereto) or (iii) alter the relative priorities of the obligations entitled to
the benefits of the Liens created under the Security Documents, except that no
such consent shall be required, and the Administrative Agent is hereby
authorized, to release any Lien covering property that is the subject of either
a disposition of property permitted hereunder or a disposition to which the
Required Lenders have consented; provided that no such agreement shall amend,
modify or otherwise affect the rights and duties of the Administrative Agent
thereunder without the prior written consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Credit 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 out-of-pocket
expenses incurred by each Issuing Lender in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Lender or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Credit Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof and (iv) and all costs,
expenses, taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent, each Issuing Lender and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan
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or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the relevant Issuing Lender 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) or any payments that the
Administrative Agent is required to make under any indemnity issued to any bank
referred to in Section 4.02(b) of the Security Agreement to which remittances in
respect of Accounts, as defined therein, are to be made, (iii) any actual or
alleged presence, release or threatened release of Hazardous Materials relating
to any property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be 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 willful misconduct of
such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails
to pay any amount required to be paid by it to the Administrative Agent, any
Issuing Lender, the Swingline Lender or the Foreign Currency Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, such Issuing Lender, the Swingline Lender or the Foreign
Currency Lender, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, such
Issuing Lender, the Swingline Lender or the Foreign Currency Lender in its
capacity as such, and provided further that such indemnity shall not be
available to the Administrative Agent, such Issuing Lender, the Swingline Lender
or the Foreign Currency Lender 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 willful misconduct of the Administrative Agent, such Issuing
Lender, the Swingline Lender or the Foreign Currency Lender, as the case may be.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
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(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Obligor may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by any
Obligor 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
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Lenders and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. 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 at the time owing
to it); provided that (i) except in the case of an assignment by a Lender to
another Lender, an Affiliate of a Lender or an Approved Fund with respect to a
Lender or an Affiliate of a Lender, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a Commitment or
any Lender's obligations in respect of its LC Exposure, Swingline Exposure or
Foreign Currency Exposure, the Issuing Lenders, the Swingline Lender and the
Foreign Currency Lender) must give their prior written consent to such
assignment (which consent in each case shall not be unreasonably withheld), (ii)
except in the case of an assignment by a Lender to another Lender, an Affiliate
of a Lender or with respect to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's
Commitment(s), the amount of the Commitment(s) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment of any Class of
Commitment or Loans shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations of such Class of Commitment
and Loans under this Agreement, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VIII has occurred and is continuing.
Upon acceptance and recording pursuant to paragraph (d) of this Section, from
and
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after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 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) Maintenance of Register by the Administrative Agent. The
Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York City 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 Commitments 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 Borrower, the Administrative Agent, the Issuing Lenders and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Lender and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. 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) Participations. Any Lender may, without the consent of the
Borrower, the Administrative Agent, the Issuing Lenders, the Swingline Lender or
the Foreign Currency 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 and the other Credit Documents (including all
or a portion of its Commitments and the Loans owing to it); provided that (i)
such Lender's obligations under this Agreement and the other Credit Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for
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the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Lenders 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 and the other Credit Documents. 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 the other Credit Documents and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Credit Document; 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) or described in the first
proviso to Section 10.02(c) that affects such Participant. Subject to paragraph
(f) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section.
(f) Limitations on Rights of Participants. A Participant shall not
be entitled to receive any greater payment under Section 2.14 or 2.16 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 Borrower'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 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.16(e) as though it were a
Lender.
(g) Certain Pledges. 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 such pledge or assignment to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Obligors or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any
interest in any Loan or LC Exposure held by it hereunder to the Borrower or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made
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by any such other party or on its behalf and notwithstanding that the
Administrative Agent, any Issuing Lender or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03 and 10.03 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 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 and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and 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 5.01, 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 to 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 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 indebtedness at any time owing by such Lender to or
for the credit or the account of any Obligor against any of and all the
obligations of any Obligor 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.
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SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor 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 this Agreement, 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 court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, any Issuing Lender or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against any Obligor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor 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 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) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
10.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 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 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
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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. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that
from time to time financial advisory, investment banking and other services may
be offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
(b) Confidentiality. Each of the Administrative Agent, the Issuing
Lenders and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority, (iii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iv) to any other party to this Agreement, (v) to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section 10.12), (vi) in connection with the
exercise of any remedies hereunder or under any other Credit Document or any
suit, action or proceeding relating to this Agreement or any other Credit
Document or the enforcement of rights hereunder or thereunder, (vii) subject to
an agreement containing provisions substantially the same as those of this
paragraph, to any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement, (viii)
with the consent of the Borrower or (ix) to the extent such Information
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(A) becomes publicly available other than as a result of a breach of this
paragraph or (B) becomes available to the Administrative Agent, any Issuing
Lender or any Lender on a nonconfidential basis (and not as a result of a breach
of any applicable confidentiality agreement known to the Administrative Agent,
any Issuing Lender and/or any Lender) from a source other than an Obligor. For
the purposes of this paragraph, "Information" means all information received
from any Obligor relating to any Obligor or its business, other than any such
information that is available to the Administrative Agent, any Issuing Lender or
any Lender on a nonconfidential basis prior to disclosure by an Obligor;
provided that, in the case of information received from an Obligor 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. European Monetary Union.
(a) Definitions. In this Section and in each other provision of this
Agreement to which reference is made in this Section (whether expressly or
impliedly), the following terms have the meanings given to them in this Section:
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU Legislation" means legislative measures of the European Council
(including European Council regulations) for the introduction of,
changeover to or operation of a single or unified European currency
(whether known as the euro or otherwise), being in part the implementation
of the third stage of EMU.
"Euro" means the single currency of Participating Member States of
the European Union, which shall be a Foreign Currency under this
Agreement.
"Euro Unit" means a currency unit of the Euro.
"National Currency Unit" means a unit of any Foreign Currency (other
than a Euro Unit) of a Participating Member State.
"Participating Member State" means each state so described in any
EMU Legislation.
"TARGET Operating Day" means any day that is not (i) a Saturday or
Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day on
which the Trans-European
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Automated Real-time Gross Settlement Express Transfer system (or any
successor settlement system) is not operating (as determined by the
Administrative Agent).
"Treaty on European Union" shall mean the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came into
force on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs (c)
through (h) of this Section shall be effective from and after January 1, 1999,
provided that if and to the extent that any such provision relates to any state
(or the currency of such state) that is not a Participating Member State on the
date hereof, such provision shall become effective in relation to such state
(and the currency of such state) at and from the date on which such state
becomes a Participating Member State.
(c) Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
National Currency Unit of a Participating Member State shall be denominated, or
redenominated into, the Euro Unit in accordance with EMU Legislation, provided
that if and to the extent that any EMU Legislation provides that an amount
denominated either in the Euro or in the National Currency Unit of a
Participating Member State and payable within the Participating Member State by
crediting an account of the creditor can be paid by the debtor either in the
Euro Unit or in that National Currency Unit, any party to this Agreement shall
be entitled to pay or repay any such amount either in the Euro Unit or in such
National Currency Unit.
(d) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the Euro or in a National Currency
Unit, neither the Foreign Currency Lender nor the Administrative Agent shall be
liable to any Subsidiary Borrower or any of the Lenders in any way whatsoever
for any delay, or the consequences of any delay, in the crediting to any account
of any amount required by this Agreement to be paid by the Administrative Agent
or the Foreign Currency Lender if the Administrative Agent or the Foreign
Currency Lender, as the case may be, shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds (in the Euro Unit or,
as the case may be, in a National Currency Unit) to the account of such
Subsidiary Borrower or any Lender, as the case may be, in the principal
financial center in the Participating Member State which such Subsidiary
Borrower or, as the case may be, such Lender shall have specified for such
purpose. In this paragraph (d), "all relevant steps" shall mean all such steps
as may be prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as the Administrative
Credit Agreement
-117-
Agent or the Foreign Currency Lender, as the case may be, may from time to time
determine for the purpose of clearing or settling payments of the Euro.
(e) Determination of Foreign Currency Interest Rate. For the
purposes of determining the date on which the applicable rate for Foreign
Currency Borrowings is determined under this Agreement for any Foreign Currency
Credit denominated in the Euro (or any National Currency Unit) for any interest
period therefor (if relevant), references in this Agreement to Business Days
shall be deemed to be references to TARGET Operating Days.
(f) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the Foreign Currency of any state
that becomes a Participating Member State shall be inconsistent with any
convention or practice in the applicable interbank market for the basis of
accrual of interest or fees in respect of the Euro, such convention or practice
shall replace such expressed basis effective as of and from the date on which
such state becomes a Participating Member State, provided that if any Foreign
Currency Credit in the Foreign Currency of such state, outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Loan, at the end of the then current interest period (if any) for such Foreign
Currency Credit.
(g) Rounding. Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU Legislation, each reference in this
Agreement to a minimum amount (or a multiple thereof) in a National Currency
Unit to be paid to or by the Foreign Currency Lender or the Administrative Agent
shall be replaced by a reference to such reasonably comparable and convenient
amount (or a multiple thereof) in the Euro Unit as the Foreign Currency Lender
or the Administrative Agent, as the case may be, may from time to time specify.
(h) Other Consequential Changes. Without prejudice to the respective
liabilities of the Subsidiary Borrowers to the Foreign Currency Lender and of
the Foreign Currency Lender to the Subsidiary Borrowers under or pursuant to
this Agreement, except as expressly provided in this Section (but subject, in
any event, to Sections 10.02(b) and 10.02(c)), each provision of this Agreement
shall be subject to such reasonable changes of construction as the Foreign
Currency Lender or the Administrative Agent, as the case may be, may from time
to time specify to be necessary or appropriate to reflect the introduction of or
changeover to the Euro in Participating Member States.
Credit Agreement
-118-
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.
CHART INDUSTRIES, INC.
By /s/ Don A. Baines
---------------------------
Name: Don A. Baines
Title: Treasurer and Chief
Financial Officer
SUBSIDIARY BORROWERS
CHART MARSTON LIMITED
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Director
Credit Agreement
-119-
SUBSIDIARY GUARANTORS
ALTEC, INC.
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Assistant Secretary
ALTEC INTERNATIONAL LIMITED
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC.,
as its sole general partner
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Chief Financial Officer,
Treasurer and Secretary
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Secretary and Treasurer
CHART INTERNATIONAL INC.
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Treasurer and Chief
Financial Officer
Credit Agreement
-120-
CHART MANAGEMENT COMPANY, INC.
By /s/ Don A. Baines
----------------------------
Name: Don A. Baines
Title: Secretary and Treasurer
CRYENCO, INC.
By /s/ Don A. Baines
-----------------------------
Name: Don A. Baines
Title: Secretary, Treasurer and
Chief Financial Officer
CRYENCO SCIENCES, INC.
By /s/ Don A. Baines
-----------------------------
Name: Don A. Baines
Title: Secretary, Treasurer and
Chief Financial Officer
GREENVILLE TUBE CORPORATION
By /s/ Don A. Baines
-----------------------------
Name: Don A. Baines
Title: Assistant Secretary
PROCESS SYSTEMS INTERNATIONAL, INC.
By /s/ Don A. Baines
------------------------------
Name: Don A. Baines
Title: Assistant Clerk, Treasurer
Credit Agreement
-121-
NCI SALES AND LEASING, INC.
By /s/ Don A. Baines
--------------------------------
Name: Don A. Baines
Title: Secretary and Treasurer
NORTHCOAST ACQUISITION CORP.
By /s/ Don A. Baines
--------------------------------
Name: Don A. Baines
Title: Vice President, Secretary
and Treasurer
NORTHCOAST OF AMERICA CRYOGENIC INC.
By /s/ Don A. Baines
--------------------------------
Name: Don A. Baines
Title: Secretary and Treasurer
MVE HOLDINGS, INC.
By /s/ Don A. Baines
---------------------------------
Name: Don A. Baines
Title: Assistant Secretary
Credit Agreement
-122-
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent
By /s/ William D. Rindfuss
-------------------------------
Name: William D. Rindfuss
Title: Vice President
NATIONAL CITY BANK
By /s/ Anthony J. Dimare
-------------------------------
Name: Anthony J. Dimare
Title: Senior Vice President
NBD BANK
By /s/ Patrick F. Dunphy
-------------------------------
Name: Patrick F. Dunphy
Title: Vice President
VAN KAMPEN PRIME RATE INCOME TRUST
By /s/ Jeffrey W. Maillet
-------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President and
Director
Credit Agreement
-123-
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By_________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By /s/ Megan G. Mourning
--------------------------------
Name: Megan G. Mourning
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ J. Scott Jessup
--------------------------------
Name: J. Scott Jessup
Title: Vice President
FLEET NATIONAL BANK
By /s/ Thomas J. Mahoney
--------------------------------
Name: Thomas J. Mahoney
Title: Vice President
Credit Agreement
-124-
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ William E. Magee
---------------------------------
Name: William E. Magee
Title: Duly Authorized Signatory
HARRIS TRUST AND SAVINGS BANK
By /s/ Kwang S. Son
---------------------------------
Name: Kwang S. Son
Title: Assistant Vice President
THE HUNTINGTON NATIONAL BANK
By /s/ Robert G. Zellar
---------------------------------
Name: Robert G. Zellar
Title: Senior Vice President
NATIONSBANK, N.A.
By /s/ Lisa S. Donoghue
---------------------------------
Name: Lisa S. Donoghue
Title: Sr. Vice President
Credit Agreement
-125-
STATE STREET BANK AND TRUST COMPANY
By /s/ Christopher DelSignore
----------------------------------
Name: Christopher DelSignore
Title: Vice President
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By /s/ Douglas B. Warren
----------------------------------
Name: Douglas B. Warren
Title: Vice President
FIRST MERIT BANK N.A.
By /s/ John F. Newmann
----------------------------------
Name: John F. Newmann
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Brendan A. Lawlor
----------------------------------
Name: Brendan A. Lawlor
Title: Assistant Vice President
Credit Agreement
-126-
KZH RIVERSIDE LLC
By /s/ Virginia Conway
----------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH STERLING 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
Credit Agreement
SCHEDULE I
Commitments
- -------------------------------------------------------------------------------------------------------------------
LENDER A Term Loan B Term Loan Revolving Loan Total Commitment
- -------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $ 15,000,000.00 $ 23,000,000.00 $ 6,000,000.00 $ 44,000,000.00
- -------------------------------------------------------------------------------------------------------------------
National City Bank $ 17,142,857.14 $ 6,857,142.86 $ 24,000,000.00
- -------------------------------------------------------------------------------------------------------------------
NBD Bank $ 10,714,285.72 $ 5,000,000.00 $ 4,285,714.28 $ 20,000,000.00
- -------------------------------------------------------------------------------------------------------------------
Van Kampen Prime Rate Income Trust $ 30,000,000.00 $ 30,000,000.00
- -------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association $ 10,714,285.72 $ 5,000,000.00 $ 4,285,714.28 $ 20,000,000.00
- -------------------------------------------------------------------------------------------------------------------
Union Bank of California, N.A $ 7,142,857.14 $ 7,000,000.00 $ 2,857,142.86 $ 17,000,000.00
- -------------------------------------------------------------------------------------------------------------------
Fleet National Bank $ 7,142,857.14 $ 5,000,000.00 $ 2,857,142.86 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
General Electric Capital Corporation $ 15,000,000.00 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
Harris Trust and Savings Bank $ 10,714,285.72 $ 4,285,714.28 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
The Huntington National Bank $ 7,142,857.14 $ 5,000,000.00 $ 2,857,142.86 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
NationsBank, N.A $ 10,714,285.72 $ 4,285,714.28 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
State Street Bank and Trust Company $ 7,142,857.14 $ 5,000,000.00 $ 2,857,142.86 $ 15,000,000.00
- -------------------------------------------------------------------------------------------------------------------
Bank Austria Creditanstalt
Corporate Finance, Inc. $ 7,142,857.14 $ 2,857,142.86 $ 10,000,000.00
- -------------------------------------------------------------------------------------------------------------------
First Merit Bank N.A $ 7,142,857.14 $ 2,857,142.86 $ 10,000,000.00
- -------------------------------------------------------------------------------------------------------------------
KeyBank National Association $ 7,142,857.14 $ 2,857,142.86 $ 10,000,000.00
- -------------------------------------------------------------------------------------------------------------------
KZH Riverside LLC $ 10,000,000.00 $ 10,000,000.00
- -------------------------------------------------------------------------------------------------------------------
KZH Sterling LLC $ 10,000,000.00 $ 10,000,000.00
- -------------------------------------------------------------------------------------------------------------------
KZH Cypress Tree - 1 LLC $ 5,000,000.00 $ 5,000,000.00
- -------------------------------------------------------------------------------------------------------------------
TOTAL $125,000,000.00 $125,000,000.00 $50,000,000.00 $300,000,000.00
- -------------------------------------------------------------------------------------------------------------------
SCHEDULE II
Debt Agreements and Liens
[See Section 4.14, Section 5.01(m), Section 7.01(b) and Section 7.02(c)]
Part A - Material Agreements
Part B - Liens
Schedule II to Credit Agreement
SCHEDULE III
Restrictive Agreements
[See Section 7.07]
Schedule III to Credit Agreement
SCHEDULE IV
Litigation
[See Section 4.06]
Schedule IV to Credit Agreement
SCHEDULE V
Environmental Matters
[See Section 4.07]
Schedule V to Credit Agreement
SCHEDULE VI
Subsidiaries and Investments
[See Section 4.16]
Part A - Subsidiaries
Part B - Investments
Schedule VI to Credit Agreement
SCHEDULE VII
Real Property
[See Section 4.17]
Schedule VII to Credit Agreement
SCHEDULE VIII
Labor Matters
[See Section 4.19]
Schedule VIII to Credit Agreement
SCHEDULE IX
Existing Letters of Credit
Schedule IX to Credit Agreement
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of April 12, 1999
(as amended and in effect on the date hereof, the "Credit Agreement"), between
Chart Industries, Inc., the Subsidiary Borrowers party thereto, the Subsidiary
Guarantors party thereto, the Lenders party thereto, The Chase Manhattan Bank,
as Administrative Agent for the Lenders and National City Bank, as Documentation
Agent. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named below hereby sells and assigns, without recourse,
to the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including the
interests set forth below in the Commitment of the Assignor on the Assignment
Date and Syndicated Loans owing to the Assignor which are outstanding on the
Assignment Date, together with unpaid interest accrued on the assigned Loans to
the Assignment Date, the participations in Letters of Credit, LC Disbursements
and Swingline Loans held by the Assignor on the Assignment Date, and the amount,
if any, set forth below of the fees accrued to the Assignment Date for account
of the Assignor. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.16(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 10.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Assignment and Acceptance
-2-
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Percentage Assigned
of Facility/
Commitment (set
forth, to at least 8
decimals, as a
percentage of the
Facility and the
aggregate
Commitments
Principal Amount of all Lenders
Facility Assigned thereunder)
- -------- -------- -----------
Commitment Assigned: $ %
Revolving Credit Commitment
Term Loan A Commitment
Term Loan B Commitment
Syndicated Loans:
Revolving Credit Loans
Term Loan A
Term Loan B
Fees Assigned (if any):
Assignment and Acceptance
-3-
The terms set forth above are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By:_________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(1)
CHART INDUSTRIES, INC.
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
as Swingline Lender
and as Issuing Lender
By:_________________________
Name:
Title:
- --------
1 Consents to be included to the extent required by Section 10.04(b) of the
Credit Agreement.
Assignment and Acceptance
-4-
NBD BANK, as Foreign Currency Lender
By:_________________________
Name:
Title:
Assignment and Acceptance
EXHIBIT B
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of April 12, 1999, between CHART
INDUSTRIES, INC., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Borrower"); each of the Subsidiaries of the
Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the signature
pages hereto (individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with the Borrower, the "Obligors"); and
THE CHASE MANHATTAN BANK, as administrative agent for the lenders or other
financial institutions or entities party, as lenders, to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Borrower, the Subsidiary Borrowers, the Subsidiary Guarantors,
the Lenders party thereto, the Administrative Agent and National City Bank, as
Documentation Agent are parties to a Credit Agreement dated as of April 12, 1999
(as modified and supplemented and in effect from time to time, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by making of loans and issuing letters of credit) to be
made by the Lenders to the Borrower and/or the Subsidiary Borrowers in an
aggregate principal or face amount not exceeding $300,000,000. In addition, the
Borrower may from time to time be obligated to various of said lenders (or their
affiliates) in respect of one or more Hedging Agreements under and as defined in
the Credit Agreement.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder and to extend credit under Hedging Agreements, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Obligor has agreed to pledge and grant a security
interest in the Collateral (as hereinafter defined) as security for the Secured
Obligations (as so defined). Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Accounts" has the meaning assigned to such term in Section 3(e).
"Collateral" has the meaning assigned to such term in Section 3.
"Collateral Account" has the meaning assigned to such term in
Section 4.01.
Security Agreement
-2-
"Copyright Collateral" means all Copyrights, whether now owned or
hereafter acquired by any Obligor, including each Copyright identified in
Annex 2.
"Copyrights" means all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation,
all renewals and extensions thereof, the right to recover for all past,
present and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
"Documents" has the meaning assigned to such term in Section 3(k).
"Equipment" has the meaning assigned to such term in Section 3(i).
"Instruments" has the meaning assigned to such term in Section 3(f).
"Intellectual Property" means, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Obligor with respect to any of the foregoing, in
each case whether now or hereafter owned or used including, without
limitation, the licenses or other agreements with respect to the Copyright
Collateral, the Patent Collateral or the Trademark Collateral, listed in
Annex 5; (c) all information, customer lists, identification of suppliers,
data, plans, blueprints, specifications, designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals, materials
standards, processing standards, performance standards, catalogs, computer
and automatic machinery software and programs; (d) all field repair data,
sales data and other information relating to sales or service of products
now or hereafter manufactured; (e) all accounting information and all
media in which or on which any information or knowledge or data or records
may be recorded or stored and all computer programs used for the
compilation or printout of such information, knowledge, records or data;
(f) all licenses, consents, permits, variances, certifications and
approvals of governmental agencies now or hereafter held by any Obligor;
and (g) all causes of action, claims and warranties now or hereafter owned
or acquired by any Obligor in respect of any of the items listed above.
"Inventory" has the meaning assigned to such term in Section 3(g).
"Issuers" means, collectively, the respective corporations
identified on Annex 1 under the caption "Issuer", and each other
Subsidiary of the Borrower formed or acquired after the date hereof and
required by Section 6.10(a) of the Credit Agreement to be added as an
"Issuer" under this Agreement (but excluding any Foreign Subsidiary to the
extent covered by a separate Foreign Subsidiary Pledge Agreement).
Security Agreement
-3-
"Motor Vehicles" means motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Other Issuer" means an Issuer organized other than as a
corporation.
"Patent Collateral" means all Patents, whether now owned or
hereafter acquired by any Obligor, including each Patent identified in
Annex 3.
"Patents" means all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties,
damages and payments now or hereafter due and/or payable under and with
respect thereto, including, without limitation, damages and payments for
past or future infringements thereof, the right to sue for past, present
and future infringements thereof, and all rights corresponding thereto
throughout the world.
"Pledged Interests" has the meaning assigned to such term in Section
3(d).
"Pledged Stock" has the meaning assigned to such term in Section
3(a).
"Secured Obligations" means, collectively, (a) in the case of the
Borrower, the principal and interest on the Loans made by the Lenders to
the Borrower and all other amounts from time to time owing to the Lenders
or the Administrative Agent by the Borrower under the Credit Documents
(including, without limitation, all LC Disbursements and interest thereon
and all obligations of the Borrower to the Lenders or any of their
affiliates in respect of Hedging Agreements), (b) in the case of the
Subsidiary Guarantors, all obligations of the Subsidiary Guarantors under
the Credit Agreement and the other Credit Documents (including, without
limitation, in respect of their respective Guarantee under Article III of
the Credit Agreement), (c) in the case of the Subsidiary Borrowers, the
principal of and interest on the Foreign Currency Credits made by the
Foreign Currency Lender to the Subsidiary Borrowers and all other amounts
from time to time owing to the Foreign Currency Lender or the
Administrative Agent by the Subsidiary Borrowers under the Credit
Documents, (d) all obligations of Chart Marston Limited ("Chart Marston")
to NBD Bank or any of its affiliates in respect of a line of credit
provided to Chart Marston in Pounds Sterling not exceeding 5,000,000 and
(e) all obligations of the Obligors to the Lenders and the Administrative
Agent hereunder.
"Stock Collateral" has the meaning assigned to such term in Section
3(c) and shall include the proceeds of and to the Stock Collateral and, to
the extent related thereto or such proceeds, all books, correspondence,
credit files, records, invoices and other papers.
Security Agreement
-4-
"Trademark Collateral" means all Trademarks, whether now owned or
hereafter acquired by any Obligor, including each Trademark identified in
Annex 4. Notwithstanding the foregoing, the Trademark Collateral does not
and shall not include any Trademark that would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part
of the Trademark Collateral.
"Trademarks" means all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for
trademark and service mark registrations, including, without limitation,
all renewals of trademark and service mark registrations, all rights
corresponding thereto throughout the world, the right to recover for all
past, present and future infringements thereof, all other rights of any
kind whatsoever accruing thereunder or pertaining thereto, together, in
each case, with the product lines and goodwill of the business connected
with the use of, and symbolized by, each such trade name, trademark and
service mark.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. Representations and Warranties. Each Obligor represents
and warrants to the Lenders and the Administrative Agent that:
(a) Ownership and Liens. Such Obligor is the sole beneficial owner
of the Collateral in which it purports to grant a security interest
pursuant to Section 3 and no Lien exists or will exist upon such
Collateral at any time, except for liens permitted under Section 7.02 of
the Credit Agreement and except for the pledge and security interest in
favor of the Administrative Agent for the benefit of the Lenders created
or provided for herein, which pledge and security interest constitute a
first priority perfected pledge and security interest in and to all of
such Collateral.
(b) Pledged Stock. The Pledged Stock evidenced by the certificates
identified opposite the name of such Obligor in Part A of Annex 1 (to the
extent such Pledged Stock is certificated) is, and all other Pledged Stock
in which such Obligor shall hereafter grant a security interest pursuant
to Section 3 will be, duly authorized, validly existing, fully paid and
non-assessable and none of such Pledged Stock is or will be subject to any
contractual restriction, or any restriction under the charter or by-laws
of the respective Issuer of such Pledged Stock, upon the transfer of such
Pledged Stock (except for any such restriction contained herein or in the
Credit Agreement). Except as otherwise disclosed in Part A of Annex 1, the
Pledged Stock evidenced by the certificates identified opposite the name
of such Obligor in Part A of Annex 1 constitutes all of the issued and
Security Agreement
-5-
outstanding shares of capital stock of any class of the Issuers
beneficially owned by such Obligor on the date hereof (whether or not
registered in the name of such Obligor) and Part A of Annex 1 correctly
identifies, as at the date hereof, the respective Issuers of such Pledged
Stock, the respective class and par value of the shares constituting such
Pledged Stock and the respective number of shares (and registered owners
thereof) represented by each such certificate.
(c) Pledged Interests. The Pledged Interests (if any) identified
opposite the name of such Obligor in Part B of Annex 1 are, and all other
Pledged Interests in which such Obligor shall hereafter grant a security
interest pursuant to Section 3, will (to the extent applicable) be, duly
authorized, validly existing, fully paid and non-assessable and none of
such Pledged Interests is or will be subject to any contractual
restriction, upon the transfer of such Pledged Interests (except for any
such restriction contained herein or as permitted under the Credit
Agreement) and the Pledged Interests constitute all of the ownership
interests in the Other Issuers held by such Obligor (whether or not
registered in the name of such Obligor), and such Obligor is the
registered owner of all such ownership interests.
(d) Copyrights, Patents and Trademarks. Annexes 2, 3 and 4,
respectively, set forth under the name of such Obligor a complete and
correct list of all Copyrights, Patents and Trademarks owned by such
Obligor on the date hereof; except pursuant to licenses and other user
agreements entered into by such Obligor in the ordinary course of business
that are listed in Annex 5, such Obligor owns and possesses the right to
use, and has done nothing to authorize or enable any other Person to use,
any Copyright, Patent or Trademark listed in Annexes 2, 3 and 4, and all
registrations listed in Annexes 2, 3 and 4 are valid and in full force and
effect; except as may be set forth in Annex 5, such Obligor owns and
possesses the right to use all Copyrights, Patents and Trademarks.
(e) Licenses. Annex 5 sets forth a complete and correct list of all
licenses and other user agreements included in the Intellectual Property
on the date hereof.
(f) No Violations in Respect of Copyrights, Patents and Trademarks.
To such Obligor's knowledge, (i) except as set forth in Annex 5, there is
no violation by others of any right of such Obligor with respect to any
Copyright, Patent or Trademark listed in Annexes 2, 3 and 4, respectively,
under the name of such Obligor and (ii) such Obligor is not infringing in
any respect upon any Copyright, Patent or Trademark of any other Person;
and no proceedings have been instituted or are pending against such
Obligor or, to such Obligor's knowledge, threatened, and no claim against
such Obligor has been received by such Obligor, alleging any such
violation, except as may be set forth in Annex 5.
Security Agreement
-6-
(g) Trademark Collateral. Except as disclosed in Annex 4, such
Obligor does not own any Trademarks registered in the United States of
America to which the last sentence of the definition of Trademark
Collateral applies.
(h) Fair Labor Standards Act. Any goods now or hereafter produced by
such Obligor or any of its Subsidiaries included in the Collateral have
been and will be produced in compliance with the requirements of the Fair
Labor Standards Act, as amended.
Section 3. Collateral. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations, each Obligor hereby pledges and grants to the
Administrative Agent, for the benefit of the Lenders as hereinafter provided, a
security interest in all of such Obligor's right, title and interest in the
following property, whether now owned by such Obligor or hereafter acquired and
whether now existing or hereafter coming into existence (all being collectively
referred to herein as "Collateral"):
(a) the shares of common stock of the Issuers represented by the
certificates identified in Annex 1 under the name of such Obligor and all
other shares of capital stock of whatever class of the Issuers, now or
hereafter owned by such Obligor, in each case together with the
certificates evidencing the same, provided that if any Issuer hereunder
shall be a Foreign Subsidiary the shares of capital stock of such Foreign
Subsidiary that constitute Collateral shall be limited to (i) 65% of the
voting capital stock of such Foreign Subsidiary having ordinary voting
power for the election of the board of directors (or similar body) of such
Foreign Subsidiary and (ii) 100% of all other capital stock of such
Foreign Subsidiary (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Obligor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of each class of the capital stock of
the successor corporation (unless such successor corporation is such
Obligor itself) formed by or resulting from such consolidation or merger
(the Pledged Stock, together with all other certificates, shares,
securities,
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properties or moneys as may from time to time be pledged hereunder
pursuant to clause (a) or (b) above and this clause (c) being herein
collectively called the "Stock Collateral");
(d) all limited liability company, partnership or other ownership
interests of such Obligor in any Other Issuer, including, without
limitation, the respective ownership interests of the Other Issuers
identified in Part B of Annex 1 opposite the name of such Obligor, all
certificates (if any) representing or evidencing such ownership interests,
all right, title and interest in, to and under the limited liability
company, partnership or other ownership agreements (the "Other
Agreements") of any Other Issuers (including, without limitation, all of
the right, title and interest as a member or partner to participate in the
operation or management of any Other Issuer and all of its ownership
interests under the Other Agreements), and all present and future rights
of such Obligor to (i) receive payment of money, any other property or
assets in connection with its ownership interests and its rights under the
Other Agreements, (ii) any claim which such Obligor now has or may in the
future acquire against any Other Issuer and its property or arising out of
or for breach of or default under any operating, partnership or other
ownership agreement or otherwise relating to the property of any Other
Issuer and (iii) terminate, amend, supplement, modify or waive performance
under any operating, partnership or other ownership agreement, to perform
thereunder and to compel performance and to otherwise exercise all
remedies thereunder, in each case together with any certificates
evidencing the same (all of such interests being pledged pursuant to this
clause (d) herein collectively called the "Pledged Interests");
(e) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Obligor constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to such Obligor in respect of any loans or advances or for
Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to such Obligor under any
guarantee (including a letter of credit) of the purchase price of
Inventory or Equipment sold by such Obligor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being
herein called collectively "Accounts");
(f) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Obligor evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "Instruments");
(g) all inventory (as defined in the Uniform Commercial Code) of
such Obligor, all goods obtained by such Obligor in exchange for such
inventory, and any products
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made or processed from such inventory including all substances, if any,
commingled therewith or added thereto (herein collectively called
"Inventory");
(h) all Intellectual Property and all other accounts or general
intangibles of such Obligor not constituting Intellectual Property or
Accounts;
(i) all equipment (as defined in the Uniform Commercial Code) of
such Obligor, including all Motor Vehicles (herein collectively called
"Equipment");
(j) each contract and other agreement of such Obligor relating to
the sale or other disposition of Inventory or Equipment;
(k) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Obligor covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(l) all rights, claims and benefits of such Obligor against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Obligor, including, without limitation, any
such rights, claims or benefits against any Person storing or transporting
such Inventory or Equipment;
(m) the balance from time to time in the Collateral Account;
(n) the Bond Tender Offer Collateral Account; and
(o) all other tangible and intangible personal property and fixtures
of such Obligor, including, without limitation, all proceeds, products,
offspring, accessions, rents, profits, income, benefits, substitutions and
replacements of and to any of the property of such Obligor described in
the preceding clauses of this Section 3 (including, without limitation,
any proceeds of insurance thereon and all causes of action, claims and
warranties now or hereafter held by any Obligor in respect of any of the
items listed above) and, to the extent related to any property described
in said clauses or such proceeds, products and accessions, all books,
correspondence, credit files, records, invoices and other papers,
including without limitation all tapes, cards, computer runs and other
papers and documents in the possession or under the control of such
Obligor or any computer bureau or service company from time to time acting
for such Obligor;
provided, however, that the Collateral shall not include any rights, title or
interest arising under, and any property acquired under, any agreement that
validly prohibits the creation by any Obligor of a secured interest in such
agreement or property.
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Section 4. Cash Proceeds of Collateral; Collateral Accounts.
4.01 Collateral Account. The Administrative Agent will cause to be
established at a banking institution to be selected by the Administrative Agent
a cash collateral account (the "Collateral Account"), which may be a "securities
account" (as defined in Section 8-501 of the Uniform Commercial Code), in the
name and under the sole dominion and control of the Administrative Agent (and,
in the case of a securities account, in respect of which the Administrative
Agent is the "entitlement holder" (as defined in Section 8-102(a)(7) of the
Uniform Commercial Code)), into which there shall be deposited from time to time
the cash proceeds of any of the Collateral (including proceeds of insurance
thereon) required to be delivered to the Administrative Agent pursuant hereto
and into which the Obligors may from time to time deposit any additional amounts
that any of them wishes to pledge to the Administrative Agent for the benefit of
the Lenders as additional collateral security hereunder or that, as provided in
the Credit Agreement, they are required to pledge as additional collateral
security hereunder. The balance from time to time in the Collateral Account
shall constitute part of the Collateral hereunder and shall not constitute
payment of the Secured Obligations until applied as hereinafter provided. Except
as expressly provided in the next sentence, the Administrative Agent shall remit
the collected balance standing to the credit of the Collateral Account to or
upon the order of the respective Obligor as such Obligor through the Borrower
shall from time to time instruct. However, at any time following the occurrence
and during the continuance of an Event of Default, the Administrative Agent may
(and, if instructed by the Lenders as specified in Section 10.02(c) of the
Credit Agreement, shall) in its (or their) discretion apply or cause to be
applied (subject to collection) the balance from time to time standing to the
credit of the Collateral Account to the payment of the Secured Obligations in
the manner specified in Section 5.09.
4.02 Concentration Account; Proceeds of Accounts.
(a) The Obligors agree to establish and maintain a single deposit
account (the "Concentration Account") with a Lender selected by the Borrower
with the approval of the Administrative Agent (such approval not to be
unreasonably withheld) into which (subject to paragraph (b) of this Section
4.02) the Obligors shall cause all account debtors and other Persons obligated
in respect of the Accounts to make all payments, either directly or indirectly,
in respect of the Accounts. The Concentration Account as of the date hereof is
identified on Annex 7. The Borrower shall promptly notify the Administrative
Agent of any change in the location or account number of, or matters relating
to, the Concentration Account; provided that (i) the Concentration Account shall
not be held at any time at a depository institution other than a Lender which is
approved by the Administrative Agent (such approval not to be unreasonably
withheld) and (ii) upon the occurrence or during the continuation of an Event of
Default no such changes may be made without the prior written approval of the
Administrative Agent.
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(b) Upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent may (i) by written notice to the Borrower
require each Obligor to instruct all account debtors and other Persons obligated
in respect of all Accounts to make all payments, in respect of the Accounts,
instead of making such payments to the Concentration Account as provided in
paragraph (a) of this Section 4.02, either (x) directly to the Administrative
Agent (by instructing that such payments be remitted to a post office box which
shall be in the name and under the control of the Administrative Agent) or (y)
to one or more other banks in the United States of America (by instructing that
such payments be remitted to a post office box which shall be in the name and
under the control of the Administrative Agent) under arrangements, in form and
substance satisfactory to the Administrative Agent, pursuant to which such
Obligor shall have irrevocably instructed such other bank (and such other bank
shall have agreed) to remit all proceeds of such payments directly to the
Administrative Agent for deposit into the Collateral Account and/or (ii)
instruct the Lender which is the depositary institution in respect of the
Concentration Account to remit the entire balance then held in the Concentration
Account directly to the Administrative Agent for deposit into the Collateral
Account (and to this end the Obligors hereby irrevocably instruct whichever
Lender shall hold the Concentration Account at such time upon receipt of such
instructions to pay such balance to the Administrative Agent). All payments made
to the Administrative Agent, as provided in the preceding sentence, shall be
immediately deposited in the Collateral Account. In addition to the foregoing
(but subject to paragraph (a) of this Section 4.02), each Obligor agrees that if
the proceeds of any Collateral hereunder (including the payments made in respect
of Accounts) shall be received by it, such Obligor shall as promptly as possible
deposit such proceeds into the Collateral Account. Until so deposited, all such
proceeds shall be held in trust by such Obligor for and as the property of the
Administrative Agent and shall not be commingled with any other funds or
property of such Obligor.
4.03 Bond Tender Offer Collateral Account. The Administrative Agent
will cause to be established at a banking institution to be selected by the
Administrative Agent a cash collateral account (the "Bond Tender Offer
Collateral Account"), which may be a "securities account" (as defined in Section
8-501 of the Uniform Commercial Code), in the name and under the sole dominion
and control of the Administrative Agent (and, in the case of a securities
account, in respect of which the Administrative Agent is the "entitlement
holder" (as defined in Section 8-102(a)(7) of the Uniform Commercial Code)),
into which there shall be deposited as of the Effective Date the proceeds of the
Term Loans in an aggregate amount at least equal to the sum of $125,000,000
minus the aggregate amount of the Term Loans (if any) that is applied by the
Borrower as of the Effective Date to consummate the Bond Tender Offer, subject
to Section 5.03 of the Credit Agreement; provided that if such sum is equal to
or less than $15,000,000, such proceeds may be returned to the Borrower. The
balance in the Bond Tender Offer Collateral Account shall be subject to
withdrawal by the Borrower only (i) to consummate the Bond Tender Offer and only
upon satisfaction of each of the conditions specified in Section 5.03
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of the Credit Agreement (unless any such condition shall have been waived in
accordance with Section 10.02 thereof) or (ii) to prepay the Term Loans in
accordance with Section 2.10(b)(vi) thereof; provided that if upon the
consummation of the Bond Tender Offer such balance shall be equal to or less
than $15,000,000, such amount shall be paid directly to the Borrower upon its
instructions.
4.04 Investment of Balance in Collateral Accounts. The cash balance
standing to the credit of the Collateral Account and the Bond Tender Offer
Collateral Account shall be invested from time to time in such Permitted
Investments as the respective Obligor through the Borrower (or, after the
occurrence and during the continuance of a Default, the Administrative Agent)
shall determine, which Permitted Investments shall be held in the name and be
under the control of the Administrative Agent (and, if the Collateral Account or
the Bond Offer Collateral Account, as the case may be, is a securities account,
credited to such account), provided that at any time after the occurrence and
during the continuance of an Event of Default, the Administrative Agent shall,
but only, if instructed by the Lenders as specified in Article VIII of the
Credit Agreement) in its (or their) discretion at any time and from time to time
elect to liquidate any such Permitted Investments and to apply or cause to be
applied the proceeds thereof to the payment of the Secured Obligations in the
manner specified in Section 5.09 (except that the funds held to the credit of
the Bond Tender Offer Collateral Account shall be applied first ratably to the
payment of the Term Loans before application to any other Secured Obligations).
4.05 Cover for LC Exposure. Amounts deposited into the Collateral
Account as cover for LC Exposure under the Credit Agreement pursuant to Section
2.05(k) thereof shall be held by the Administrative Agent in a separate
sub-account (designated "LC Exposure Sub-Account") and all amounts held in such
sub-account shall constitute collateral security first for the LC Exposure
outstanding from time to time and second as collateral security for the other
Secured Obligations hereunder.
Section 5. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3, the Obligors hereby
jointly and severally agree with each Lender and the Administrative Agent as
follows:
5.01 Delivery and Other Perfection. Each Obligor shall:
(a) if any of the shares, securities, moneys or property required to
be pledged by such Obligor under clauses (a), (b) and (c) of Section 3 are
received by such Obligor, forthwith either (x) transfer and deliver to the
Administrative Agent such shares or securities so received by such Obligor
(together with the certificates for any such shares and securities duly
endorsed in blank or accompanied by undated stock powers duly
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executed in blank), all of which thereafter shall be held by the
Administrative Agent, pursuant to the terms of this Agreement, as part of
the Collateral or (y) take such other action as the Administrative Agent
shall deem reasonably necessary or appropriate to duly record the Lien
created hereunder in such shares, securities, moneys or property in said
clauses (a), (b) and (c);
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Administrative Agent may
reasonably request; provided that so long as no Default shall have
occurred and be continuing, such Obligor may retain for collection in the
ordinary course any Instruments received by such Obligor in the ordinary
course of business and the Administrative Agent shall, promptly upon
request of such Obligor through the Borrower, make appropriate
arrangements for making any Instrument pledged by such Obligor available
to such Obligor for purposes of presentation, collection or renewal (any
such arrangement to be effected, to the extent deemed appropriate by the
Administrative Agent, against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be reasonably necessary or desirable (in the judgment of the
Administrative Agent) to create, preserve, perfect or validate the
security interest granted pursuant hereto or to enable the Administrative
Agent to exercise and enforce its rights hereunder with respect to such
pledge and security interest, including, without limitation, causing any
or all of the Stock Collateral to be transferred of record into the name
of the Administrative Agent or its nominee (and the Administrative Agent
agrees that if any Stock Collateral is transferred into its name or the
name of its nominee, the Administrative Agent will thereafter promptly
give to the respective Obligor copies of any notices and communications
received by it with respect to the Stock Collateral pledged by such
Obligor hereunder), provided that notices to account debtors in respect of
any Accounts or Instruments shall be subject to the provisions of clause
(i) below;
(d) without limiting the obligations of such Obligor under Section
5.04(c), upon the acquisition after the date hereof by such Obligor of any
Equipment covered by a certificate of title or ownership, cause the
Administrative Agent to be listed as the lienholder on such certificate of
title and within 120 days of the acquisition thereof deliver evidence of
the same to the Administrative Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
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(f) furnish to the Administrative Agent from time to time (but,
unless a Default shall have occurred and be continuing, no more frequently
than annually) statements and schedules further identifying and describing
the Copyright Collateral, the Patent Collateral and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the Trademark Collateral
as the Administrative Agent may reasonably request, all in reasonable
detail;
(g) promptly upon reasonable request of the Administrative Agent,
following receipt by the Administrative Agent of any statements, schedules
or reports pursuant to clause (f) above, modify this Agreement by amending
Annexes 2, 3 and/or 4, as the case may be, to include any Copyright,
Patent or Trademark that becomes part of the Collateral under this
Agreement;
(h) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Collateral,
and permit representatives of the Administrative Agent to be present at
such Obligor's place of business to receive copies of all communications
and remittances relating to the Collateral, and forward copies of any
notices or communications received by such Obligor with respect to the
Collateral, all in such manner as the Administrative Agent may require;
and
(i) upon the occurrence and during the continuance of any Default,
upon request of the Administrative Agent, promptly notify (and such
Obligor hereby authorizes the Administrative Agent so to notify) each
account debtor in respect of any Accounts or Instruments that such
Collateral has been assigned to the Administrative Agent hereunder, and
that any payments due or to become due in respect of such Collateral are
to be made directly to the Administrative Agent.
5.02 Other Financing Statements and Liens. Except as otherwise
permitted under Section 7.02 of the Credit Agreement, without the prior written
consent of the Administrative Agent (granted with the authorization of the
Lenders as specified in Section 10.02(c) of the Credit Agreement), no Obligor
shall file or suffer to be on file, or authorize or permit to be filed or to be
on file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Administrative Agent is not named as the
sole secured party for the benefit of the Lenders.
5.03 Preservation of Rights. The Administrative Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
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5.04 Special Provisions Relating to Certain Collateral.
(a) Stock Collateral.
(1) The Obligors will cause (A) the Stock Collateral to constitute
at all times (i) except as provided in clause (ii) below, 100% of the total
number of shares of each class of capital stock of each Issuer then outstanding
and owned by the Obligors and (ii) in the case of any Foreign Subsidiary which
is an Issuer hereunder, 65% of the total number of shares of voting capital
stock of such Foreign Subsidiary having ordinary voting power for the election
of the board of directors (or similar body) and 100% of each class of all other
capital stock of such Foreign Subsidiary and (B) the Pledged Interests to
constitute 100% of the aggregate ownership interests of each Other Issuer then
outstanding and owned by the Obligors.
(2) So long as no Event of Default shall have occurred and be
continuing, the Obligors shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Stock Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit Agreement
or any other instrument or agreement referred to herein, provided that the
Obligors jointly and severally agree that they will not vote the Stock
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement or any such other instrument or agreement; and the
Administrative Agent shall execute and deliver to the Obligors or cause to be
executed and delivered to the Obligors all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse, as the
Obligors may reasonably request for the purpose of enabling the Obligors to
exercise the rights and powers that they are entitled to exercise pursuant to
this Section 5.04(a)(2).
(3) Unless and until an Event of Default has occurred and is
continuing, the Obligors shall be entitled to receive and retain any dividends
on the Stock Collateral paid in cash out of earned surplus.
(4) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Administrative
Agent or any Lender exercises any available right to declare any Secured
Obligation due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit
Agreement or any other agreement relating to such Secured Obligation, all
dividends and other distributions on the Stock Collateral shall be paid directly
to the Administrative Agent and retained by it in the Collateral Account as part
of the Stock Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, the Obligors jointly and
severally agree to execute and deliver to the Administrative Agent appropriate
additional dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured or waived, any such dividend or
distribution theretofore paid to the
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Administrative Agent shall, upon request of the Obligors (except to the extent
theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to the Obligors.
(b) Intellectual Property.
(1) For the purpose of enabling the Administrative Agent to exercise
rights and remedies under Section 5.05 at such time as the Administrative Agent
shall be lawfully entitled to exercise such rights and remedies, and for no
other purpose, each Obligor hereby grants to the Administrative Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to such Obligor) to use, assign,
license or sublicense any of the Intellectual Property now owned or hereafter
acquired by such Obligor, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 7.03 of the Credit Agreement that limit the
rights of the Obligors to dispose of their property, so long as no Event of
Default shall have occurred and be continuing, the Obligors will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of or
take other actions with respect to the Intellectual Property in the ordinary
course of the business of the Obligors. In furtherance of the foregoing, unless
an Event of Default shall have occurred and be continuing the Administrative
Agent shall from time to time, upon the request of the respective Obligor,
execute and deliver any instruments, certificates or other documents, in the
form so requested, that such Obligor through the Borrower shall have certified
are appropriate (in its judgment) to allow it to take any action permitted above
(including relinquishment of the license provided pursuant to clause (1)
immediately above as to any specific Intellectual Property). Further, upon the
payment in full of all of the Secured Obligations and cancellation or
termination of the Commitments and LC Exposure or earlier expiration of this
Agreement or release of the Collateral, the Administrative Agent shall grant
back to the Obligors the license granted pursuant to clause (1) immediately
above. The exercise of rights and remedies under Section 5.05 by the
Administrative Agent shall not terminate the rights of the holders of any
licenses or sublicenses theretofore granted by the Obligors in accordance with
the first sentence of this clause (2).
(c) Motor Vehicles. At any time after the occurrence and during the
continuance of an Event of Default, each Obligor shall, upon the request of the
Administrative Agent, deliver to the Administrative Agent originals of the
certificates of title or ownership for the Motor Vehicles owned by it with the
Administrative Agent listed as lienholder and take such other action as the
Administrative Agent shall deem appropriate to perfect the security interest
created hereunder in all such Motor Vehicles.
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5.05 Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) each Obligor shall, at the request of the Administrative Agent,
assemble the Collateral owned by it at such place or places, reasonably
convenient to both the Administrative Agent and such Obligor, designated
in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to
the maximum extent permitted by law, to exercise all voting, consensual
and other powers of ownership pertaining to the Collateral as if the
Administrative Agent were the sole and absolute owner thereof (and each
Obligor agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Administrative Agent in its discretion may, in its name or
in the name of the Obligors or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Administrative Agent may, upon ten Business Days' prior
written notice to the Obligors of the time and place, with respect to the
Collateral or any part thereof that shall then be or shall thereafter come
into the possession, custody or control of the Administrative Agent, the
Lenders or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Collateral, at such place or
places as the Administrative Agent deems best, and for cash or for credit
or for future delivery (without thereby assuming any credit risk), at
public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or by applicable statute and
cannot be waived), and the Administrative Agent or any Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or
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equity of redemption (statutory or otherwise), of the Obligors, any such
demand, notice and right or equity being hereby expressly waived and
released. In the event of any sale, assignment, or other disposition of
any of the Trademark Collateral, the goodwill connected with and
symbolized by the Trademark Collateral subject to such disposition shall
be included, and the Obligors shall supply to the Administrative Agent or
its designee, for inclusion in such sale, assignment or other disposition,
all Intellectual Property relating to such Trademark Collateral. The
Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 5.04(b), shall be applied in accordance with
Section 5.09.
The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Obligors acknowledge that any such private sales may be at prices and on terms
less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Obligors shall remain liable for any deficiency to
the extent the Obligors are obligated under this Agreement.
5.07 Removals, Etc. Without at least 20 days' prior written notice
to the Administrative Agent, no Obligor shall (i) maintain any of its books and
records with respect to the Collateral at any office, or maintain its principal
place of business at any place, or permit any Inventory or Equipment to be
located anywhere, other than at the address indicated beneath the signature of
the Borrower to the Credit Agreement or at one of the locations identified in
Annex 6 under its name or in transit from one of such locations to another or
(ii) change its name, or the name under which it does business, from the name
shown on the signature pages hereto.
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5.08 Private Sale. The Administrative Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 conducted in a
commercially reasonable manner. Each Obligor hereby waives any claims against
the Administrative Agent or any Lender arising by reason of the fact that the
price at which the Collateral may have been sold at such a private sale was less
than the price that might have been obtained at a public sale or was less than
the aggregate amount of the Secured Obligations, even if the Administrative
Agent accepts the first offer received and does not offer the Collateral to more
than one offeree.
5.09 Application of Proceeds. Except as otherwise herein expressly
provided and except as provided below in this Section 5.09, the proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative Agent
under Section 4 or this Section 5, shall be applied by the Administrative Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and the fees and expenses of its
agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to the respective Obligor, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "LC Exposure Sub-Account" of the Collateral Account pursuant to Section 4.05
shall be applied first to the LC Exposure outstanding from time to time and
second to the other Secured Obligations in the manner provided above in this
Section 5.09.
As used in this Section 5, "proceeds" of Collateral means cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Obligors or any issuer of or obligor on
any of the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the
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Administrative Agent is hereby appointed the attorney-in-fact of each Obligor
for the purpose of carrying out the provisions of this Section 5 and taking any
action and executing any instruments that the Administrative Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Administrative Agent shall be
entitled under this Section 5 to make collections in respect of the Collateral,
the Administrative Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of any Obligor representing any
dividend, payment or other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same.
5.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, each Obligor shall (i) file such financing
statements and other documents in such offices as the Administrative Agent may
reasonably request to perfect the security interests granted by Section 3 of
this Agreement, (ii) cause the Administrative Agent to be listed as the
lienholder on all certificates of title or ownership relating to Motor Vehicles
owned by such Obligor and (iii) deliver to the Administrative Agent all
certificates identified in Annex 1, accompanied by undated stock powers duly
executed in blank.
5.12 Termination. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and all LC
Exposure shall have expired or been terminated, this Agreement shall terminate,
and the Administrative Agent shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the respective Obligor and to be released
and canceled all licenses and rights referred to in Section 5.04(b). The
Administrative Agent shall also execute and deliver to the respective Obligor
upon such termination such Uniform Commercial Code termination statements,
certificates for terminating the Liens on the Motor Vehicles and such other
documentation as shall be reasonably requested by the respective Obligor to
effect the termination and release of the Liens on the Collateral.
5.13 Further Assurances. Each Obligor agrees that, from time to time
upon the written request of the Administrative Agent, such Obligor will execute
and deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
5.14 Release of Motor Vehicles. So long as no Default shall have
occurred and be continuing, upon the request of any Obligor, the Administrative
Agent shall execute and deliver to such Obligor such instruments as such Obligor
shall reasonably request to remove the notation of the Administrative Agent as
lienholder on any certificate of title for any Motor Vehicle; provided that any
such instruments shall be delivered, and the release effective only upon receipt
by the Administrative Agent of a certificate from such Obligor stating that the
Security Agreement
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Motor Vehicle the lien on which is to be released is to be sold or has suffered
a casualty loss (with title thereto passing to the casualty insurance company
therefor in settlement of the claim for such loss).
Section 6. Miscellaneous.
6.01 Notices. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 10.01 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 10.01.
6.02 No Waiver. No failure on the part of the Administrative Agent
or any Lender to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Obligor and the Administrative Agent (with the consent of the Lenders as
specified in Section 10.02(c) of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Administrative Agent and each Lender, each
holder of any of the Secured Obligations and each Obligor.
6.04 Expenses. The Obligors jointly and severally agree to reimburse
each of the Lenders and the Administrative Agent for all reasonable costs and
expenses of the Lenders and the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in connection
with (i) any Default and any enforcement or collection proceeding resulting
therefrom, including, without limitation, all manner of participation in or
other involvement with (w) performance by the Administrative Agent of any
obligations of the Obligors in respect of the Collateral that the Obligors have
failed or refused to perform, (x) bankruptcy, insolvency, receivership,
foreclosure, winding up or liquidation proceedings, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and
defending or asserting rights and claims of the Administrative Agent in respect
thereof, by litigation or otherwise, including expenses of insurance, (y)
judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (ii) the enforcement of
this Section 6.04, and all such costs and expenses shall be Secured Obligations
entitled to the benefits of the collateral security provided pursuant to Section
3.
Security Agreement
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6.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Obligor, the Administrative Agent, the Lenders and each holder of any of the
Secured Obligations (provided, however, that no Obligor shall assign or transfer
its rights hereunder without the prior written consent of the Administrative
Agent).
6.06 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.07 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
6.08 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
6.09 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
6.10 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(a) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
6.11 Additional Obligors. As contemplated in Section 6.10 of the
Credit Agreement, a new Subsidiary of the Borrower formed or acquired by the
Borrower after the date hereof may become a "Subsidiary Guarantor" under the
Credit Agreement and an "Obligor" under this Agreement, by executing and
delivering to the Administrative Agent a Guarantee Assumption Agreement in the
form of Exhibit D to the Credit Agreement. Accordingly, upon the execution and
delivery of any such Guarantee Assumption Agreement by any such Subsidiary, such
new Subsidiary shall automatically and immediately, and without any further
action on the part of any Person, become an "Obligor" for all purposes of this
Agreement, and each of the Annexes hereto shall be supplemented in the manner
specified in such Guarantee Assumption Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
CHART INDUSTRIES, INC.
By ________________________
Name:
Title:
Security Agreement
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SUBSIDIARY GUARANTORS
ALTEC, INC.
By ________________________
Name:
Title:
ALTEC INTERNATIONAL LIMITED
PARTNERSHIP
By: CHART MANAGEMENT COMPANY, INC.,
its sole general partner
By ________________________
Name:
Title:
CHART INDUSTRIES FOREIGN SALES
CORPORATION
By ________________________
Name:
Title:
CHART INTERNATIONAL, INC.
By ________________________
Name:
Title:
Security Agreement
-24-
CHART MANAGEMENT COMPANY, INC.
By ________________________
Name:
Title:
CRYENCO, INC.
By ________________________
Name:
Title:
CRYENCO SCIENCES, INC.
By ________________________
Name:
Title:
GREENVILLE TUBE CORPORATION
By ________________________
Name:
Title:
PROCESS SYSTEMS INTERNATIONAL, INC.
By ________________________
Name:
Title:
Security Agreement
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NCI SALES AND LEASING, INC.
By ________________________
Name:
Title:
NORTHCOAST ACQUISITION CORP.
By ________________________
Name:
Title:
NORTHCOAST OF AMERICA CRYOGENIC INC.
By ________________________
Name:
Title:
MVE HOLDINGS, INC.
By ________________________
Name:
Title:
Security Agreement
-26-
THE CHASE MANHATTAN BANK,
as Administrative Agent
By ________________________
Title:
Security Agreement
ANNEX 1
PLEDGED STOCK
[See Section 2(b) and (c).]
Part A
Part B
Annex 1 to Security Agreement
ANNEX 2
LIST OF COPYRIGHTS, COPYRIGHT REGISTRATIONS AND
APPLICATIONS FOR COPYRIGHT REGISTRATIONS
[See Section 2(d).]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Title Date Filed Registration No. Effective Date
- ----- ---------- ---------------- --------------
Annex 2 to Security Agreement
ANNEX 3
LIST OF PATENTS AND PATENT APPLICATIONS
[See Section 2(d).]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
File Patent Country Registration No. Date
- ---- ------ ------- ---------------- ----
Annex 3 to Security Agreement
ANNEX 4
LIST OF TRADE NAMES, TRADEMARKS, SERVICES MARKS,
TRADEMARK AND SERVICE MARK REGISTRATIONS AND
APPLICATIONS FOR TRADEMARK AND SERVICE MARK REGISTRATIONS
[See Section 2(d).]
U.S. Trademarks
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Application (A)
Registration (R) Registration
Mark or Series No. (S) or Filing Date
---- ----------------- --------------
Annex 4 to Security Agreement
-2-
Foreign Trademarks
[Complete for each Obligor]
[NAME OF OBLIGOR]
Application (A) Registration or
Mark Registration (R) Country Filing Date (F)
---- ---------------- ------- ---------------
Annex 4 to Security Agreement
ANNEX 5
LIST OF CONTRACTS, LICENSES AND OTHER AGREEMENTS
[See Section 2(d), (e) and (f).]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Annex 5 to Security Agreement
ANNEX 6
LIST OF LOCATIONS
[See Section 5.07.]
[Complete for each Obligor:]
[NAME OF OBLIGOR]
Annex 6 to Security Agreement
ANNEX 7
CONCENTRATION ACCOUNT
[See Section 4.02]
Annex 7 to Security Agreement
EXHIBIT C
[Form of Mortgage]
Form of Mortgage
EXHIBIT D
[Form of Guarantee Assumption Agreement]
GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT dated as of ________ __, ____ by
[NAME OF ADDITIONAL SUBSIDIARY GUARANTOR], a ________ corporation (the
"Additional Subsidiary Guarantor"), in favor of The Chase Manhattan Bank, as
administrative agent for the lenders or other financial institutions or entities
party as "Lenders" to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
Chart Industries, Inc., a Delaware corporation, the Subsidiary
Borrowers referred to therein, the Subsidiary Guarantors referred to therein,
the Lenders party thereto, the Administrative Agent and National City Bank, as
Documentation Agent, are parties to a Credit Agreement dated as of April 12,
1999 (as modified and supplemented and in effect from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings.
Pursuant to Section 6.10(a) of the Credit Agreement, the Additional
Subsidiary Guarantor hereby agrees to become a "Subsidiary Guarantor" for all
purposes of the Credit Agreement, and an "Obligor" and an "Issuer" for all
purposes of the Security Agreement (and hereby supplements Annexes 1 through 6
to said Security Agreement as specified in Appendix A). Without limiting the
foregoing, the Additional Subsidiary Guarantor hereby, jointly and severally
with the other Subsidiary Guarantors, guarantees to each Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of all Guaranteed Obligations (as defined in Section 3.01(b) of the
Credit Agreement) in the same manner and to the same extent as is provided in
Article III of the Credit Agreement. In addition, the Additional Subsidiary
Guarantor hereby makes the representations and warranties set forth in Sections
4.01, 4.02 and 4.03 of the Credit Agreement, and in Section 2 of the Security
Agreement, with respect to itself and its obligations under this Agreement, as
if each reference in such Sections to the Credit Documents included reference to
this Agreement.
The Additional Subsidiary Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.10(a) of the Credit Agreement to
the Lenders and the Administrative Agent.
Guarantee Assumption Agreement
-2-
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused
this Guarantee Assumption Agreement to be duly executed and delivered as of the
day and year first above written.
[NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR]
By ________________________
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By ________________________
Title:
Guarantee Assumption Agreement
Appendix A
SUPPLEMENTS TO ANNEXES TO SECURITY AGREEMENT
Supplement to Annex 1:
[to be completed]
Supplement to Annex 2:
[to be completed]
Supplement to Annex 3:
[to be completed]
Supplement to Annex 4:
[to be completed]
Supplement to Annex 5:
[to be completed]
Supplement to Annex 6:
[to be completed]
Appendix A to Guarantee Assumption Agreement