Exhibit 10.3
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 16,
1999 among ACCURIDE CORPORATION, a Delaware corporation (the "U.S. BORROWER"),
and ACCURIDE CANADA INC., a corporation organized and existing under the law of
the Province of Ontario (the "CANADIAN BORROWER", and, together with the U.S.
Borrower, the "Borrowers"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "INITIAL LENDERS"), CITIBANK, N.A., a national banking association
("Citibank"), as the initial issuing bank (the "INITIAL ISSUING BANK"), CITICORP
USA, INC., a Delaware corporation ("CITICORP"), as the swing line bank (the
"SWING LINE BANK") and as administrative agent (together with any successor
appointed pursuant to Article VIII, the "ADMINISTRATIVE AGENT") for the Lender
Parties (as hereinafter defined), SALOMON SMITH BARNEY INC., as arranger (the
"ARRANGER") for the Term C Facility (as hereinafter defined), BANKERS TRUST
COMPANY ("BANKERS TRUST "), as syndication agent ("SYNDICATION AGENT") for the
Lender Parties and WELLS FARGO BANK N.A. ("WELLS FARGO"), as documentation agent
("DOCUMENTATION AGENT") for the Lender Parties.
PRELIMINARY STATEMENTS:
(1) The Borrowers entered into a Credit Agreement dated as of
January 21, 1998 (the "ORIGINAL CREDIT AGREEMENT") with the banks, financial
institutions and other institutional lenders party thereto as Lenders (as
defined therein), Citibank as Initial Issuing Bank, Citicorp as Swing Line Bank
and as Administrative Agent, Citicorp Securities, Inc. as arranger for the
Facilities (as defined therein), Bankers Trust Company as Syndication Agent and
Wells Fargo Bank N.A. as Documentation Agent (such Lenders, Initial Issuing Bank
and Swing Line Bank being the "ORIGINAL LENDER PARTIES").
(2) Pursuant to the Purchase Agreement dated as of April 1,
1999 (as amended, supplemented or otherwise modified in accordance with its
terms, to the extent permitted in accordance with the Loan Documents (as
hereinafter defined) the "AKW ACQUISITION AGREEMENT") among Accuride Ventures,
Inc. a Delaware corporation ("ACCURIDE VENTURES"), the U.S. Borrower and Kaiser
Aluminum & Chemical Corporation, a Delaware corporation ("KAC"), the U.S.
Borrower has acquired (i) KAC's 50% membership interest in AKW General Partner
L.L.C., a Delaware limited liability company ("AKW LLC"), and (ii) KAC's 49%
limited partnership interest in AKW L.P., a Delaware limited partnership ("AKW
LP"), for aggregate cash consideration of approximately $70,400,000 (such
acquisitions being, collectively, the "AKW ACQUISITION"). Following the AKW
Acquisition, (i) the U.S. Borrower owns a 50% membership interest in AKW LLC and
a 49% limited partnership interest in AKW LP, and (ii) Accuride Ventures, Inc.,
a Delaware corporation ("ACCURIDE VENTURES") owns a 50% membership interest in
AKW LLC and a 49% limited partnership interest in AKW LP.
(3) The Borrowers have requested that the Original Lender
Parties amend and restate the Original Credit Agreement so that the Term C
Lenders (as defined herein) will lend hereunder $100,000,000 to the U.S.
Borrower to enable the U.S. Borrower to (i) refinance debt incurred by the U.S.
Borrower for the purposes of consummating the AKW Acquisition and paying
transaction fees and expenses in connection therewith and (ii) prepay in part
the Revolving Credit Advances outstanding under the Original Credit Agreement.
(4) The Original Lender Parties have indicated their
willingness to agree to so amend and restate the Original Credit Agreement on
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that the Original Credit Agreement is amended and restated in its entirety
to read as follows:
ARTICLE I ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS.01. CERTAIN DEFINED TERMS.
As used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"ACCURIDE VENTURES" has the meaning specified in the
Preliminary Statements.
"ACQUISITION" means the acquisition by Hubcap of approximately
90% of the U.S. Borrower from Phelps Dodge pursuant to the Stock
Purchase Agreement.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank at its office at 399 Park Avenue, New York, New York 10043,
Account No. 3685-2248, Reference: Accuride.
"ADVANCE" means a Term A Advance, a Term B Advance, a Term C
Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter
of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person (or, in the case of any Lender which is an
investment fund, (i) the investment advisor thereof, and (ii) any other
investment fund having the same investment advisor), or is a director
or officer of such Person. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and
"under common control with") of a Person means the possession, direct
or indirect, of the power to vote 10% or more of the Voting Stock of
such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock,
by contract or otherwise.
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"AKW ACQUISITION" has the meaning specified in the Preliminary
Statements.
"AKW ACQUISITION AGREEMENT" has the meaning specified in the
Preliminary Statements.
"AKW INFORMATION MEMORANDUM" means the information memorandum
dated March 31, 1999, used by the Arranger in connection with the
syndication of the Term C Commitments.
"AKW LLC" has the meaning specified in the Preliminary
Statements
"AKW LLC AGREEMENT" means the Limited Liability Company
Agreement of AKW LLC dated as of May 1, 1997, as modified pursuant to
the AKW Acquisition Agreement, between Accuride Ventures and the U.S.
Borrower which governs the formation and operation of AKW LLC, as
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"AKW LP" has the meaning specified in the Preliminary
Statements.
"AKW LP AGREEMENT" means the Limited Partnership Agreement of
AKW LP dated as of May 1, 1997, as modified pursuant to the AKW
Acquisition Agreement, among AKW LLC, Accuride Ventures and the U.S.
Borrower as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof and thereof.
"APPLICABLE LENDING OFFICE" means, with respect to (a) each
Term A Lender, such Lender Party's Canadian Lending Office in the case
of a Base Rate Advance and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and (b) for each other
Lender Party, such Lender Party's Domestic Lending Office in the case
of a Base Rate Advance and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, for Advances outstanding under each
of the Term A Facility, the Term B Facility, the Term C Facility and
the Revolving Credit Facility, a percentage per annum determined by
reference to the Performance Level as set forth for each such Facility
below:
(a) for Advances outstanding under the Term A Facility:
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
----------------- ------------------ ------------------------
I 0.250% 1.250%
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II 0.250% 1.250%
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III 0.500% 1.500%
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IV 0.750% 1.750%
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V 1.125% 2.125%
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VI 1.375% 2.375%
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(b) for Advances outstanding under the Term B Facility:
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PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
----------------------------------------------------------------------------------------------
I 0.500% 1.500%
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II 0.500% 1.500%
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III 0.750% 1.750%
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IV 1.000% 2.000%
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V 1.250% 2.250%
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VI 1.500% 2.500%
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(c) for Advances outstanding under the Term C Facility:
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PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
----------------------------------------------------------------------------------------------
A 1.250% 2.250%
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B 1.500% 2.500%
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C 1.750% 2.750%
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(d) for Advances outstanding under the Revolving Credit
Facility:
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PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
----------------------------------------------------------------------------------------------
I 0.000% 0.875%
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II 0.125% 1.125%
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III 0.375% 1.375%
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IV 0.625% 1.625%
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V 1.000% 2.000%
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VI 1.250% 2.250%
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For outstanding Advances under each of the Facilities, the Applicable
Margin for each Base Rate Advance and each Eurodollar Rate Advance
shall, (i) in the case of Advances other than Term C Advances, for the
first six months following the Closing Date, be determined by reference
to Performance Level V, (ii) in the case of Term C Advances, for the
first six months following the date of the Term C Advances hereunder,
be determined by reference to Performance Level B, and (iii) in each
case thereafter, the Applicable Margin for each Base Rate Advance shall
be determined by reference to the Performance Level in effect from time
to time and the Applicable Margin for each Eurodollar Rate Advance
shall be determined by reference to the Performance Level in effect on
the first day of each Interest Period for such Advance. Changes in the
Applicable Margin resulting from changes in the Performance Level shall
become effective (for purposes of this definition only, the date of
such effectiveness being the "EFFECTIVE DATE") as of the first day
following the last day of the most recent Fiscal Quarter or Fiscal Year
for which (A) financial statements are delivered to the Administrative
Agent pursuant to Section 5.03(b) or (c) and (B) a certificate of the
chief financial officer of the U.S. Borrower is delivered by the U.S.
Borrower to the Administrative Agent setting forth, with respect to
such financial statements, the then-applicable Performance Level and
the basis of the calculations therefor, and shall remain in effect
until the next change to be effected pursuant to this definition;
PROVIDED that, (i) if either Borrower shall have made any payments in
respect of interest during the period (for purposes of this definition
only, the "INTERIM PERIOD") from and including the Effective Date to
the day on which any change in Performance Level is determined as
provided above, then the amount of the next such payment of interest
due by such Borrower on or after such day shall be increased or
decreased by an amount equal to any underpayment or overpayment so made
by such Borrower during such Interim Period and (ii) each determination
of the Performance Level pursuant to this definition shall be made with
respect to the Measurement Period ending at the end of the fiscal
period covered by the relevant financial statements.
"APPLICABLE PERCENTAGE" means (a) for the six month period
immediately following the Closing Date, a rate per annum equal to
0.425% and (b) thereafter, a rate per annum determined by reference to
the applicable Performance Level as set forth below:
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PERFORMANCE LEVEL COMMITMENT FEE
- --------------------------------------------------------------------------------
I 0.250%
- --------------------------------------------------------------------------------
II 0.300%
- --------------------------------------------------------------------------------
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III 0.350%
- --------------------------------------------------------------------------------
IV 0.375%
- --------------------------------------------------------------------------------
V 0.375%
- --------------------------------------------------------------------------------
VI 0.425%
- --------------------------------------------------------------------------------
The Applicable Percentage determined pursuant to clause (b) above shall
be determined by reference to the Performance Level in effect from time
to time. Changes in the Applicable Percentage resulting from changes in
the Performance Level shall become effective (for purposes of this
definition only, the date of such effectiveness being the "EFFECTIVE
DATE") as of the first day following the last day of the most recent
Fiscal Quarter or Fiscal Year for which (A) financial statements are
delivered to the Administrative Agent pursuant to Section 5.03(b) or
(c) and (B) a certificate of the chief financial officer of the U.S.
Borrower is delivered by the U.S. Borrower to the Administrative Agent
setting forth, with respect to such financial statements, the
then-applicable Performance Level and the basis of the calculations
therefor, and shall remain in effect until the next change to be
effected pursuant to this definition; PROVIDED that, (i) if the U.S.
Borrower shall have made any payments in respect of commitment fees
during the period (for purposes of this definition only, the "INTERIM
PERIOD") from the Effective Date to the day on which any change in
Performance Level is determined as provided above, then the amount of
the next such payment in respect of commitment fees due by such
Borrower on or after such day shall be increased or decreased by an
amount equal to any underpayment or overpayment so made by such
Borrower during such Interim Period and (ii) each determination of the
Performance Level pursuant to this definition shall be made with
respect to the Measurement Period ending at the end of the fiscal
period covered by the relevant financial statements.
"APPLICABLE RATE" has the meaning specified in Section
2.11(d).
"APPROPRIATE BORROWER" means, (a) with respect to the Term A
Facility, the Canadian Borrower and (b) with respect to the Term B
Facility, the Term C Facility, the Revolving Credit Facility, the Swing
Line Facility or the Letter of Credit Facility, the U.S. Borrower.
"APPROPRIATE LENDER" means, at any time, with respect to (a)
any of Term A Facility, the Term B Facility, the Term C Facility or the
Revolving Credit Facility, a Lender that has a Commitment with respect
to such Facility at such time, (b) the Letter of Credit Facility, (i)
the Issuing Bank and (ii) the other Revolving Credit Lenders and (c)
the Swing Line Facility, (i) the Swing Line Bank and (ii) if the other
Revolving Credit Lenders have made Swing Line Advances pursuant to
Section 2.02(b) that are outstanding at such time, each such other
Revolving Credit Lender.
"ARRANGER" has the meaning specified in the recital of parties
to this Agreement.
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"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent and the Appropriate Borrower, in accordance
with Section 9.07 and in substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" means, as of any date of determination, an
amount equal to (a) the sum of (i) the amount of any capital
contributions (other than the capital contributions referred to in
Section 3.01(b)) made in cash to the U.S. Borrower during the period
from the Business Day immediately following the Closing Date to such
date, (ii) the aggregate amount of Net Cash Proceeds which are required
to be used to prepay Advances pursuant to Section 2.06(b)(ii) but are
not so used, and are retained by the U.S. Borrower, pursuant to Section
2.06(c) on or prior to such date, (iii) an amount equal to (x) the
cumulative amount of Excess Cash Flow for all Fiscal Years completed
prior to such date MINUS (y) the portion of such Excess Cash Flow that
has been on or prior to such date (or will be) applied to the
prepayment of Advances in accordance with Section 2.06(b)(i), (iv) the
aggregate amount of all cash dividends and other cash distributions
received by the U.S. Borrower or any Subsidiary Guarantor on or prior
to such date from any Persons which are not Restricted Subsidiaries
(other than the portion of any such dividends and other distributions
that is used by the U.S. Borrower or any Subsidiary Guarantor to pay
taxes), (v) the aggregate amount of all cash repayments of principal
received by the U.S. Borrower or any Subsidiary Guarantor on or prior
to such date from any Persons which are not Restricted Subsidiaries in
respect of loans made by the U.S. Borrower or such Subsidiary Guarantor
to such Persons and (vi) the aggregate amount of all net cash proceeds
received by the U.S. Borrower or any Subsidiary Guarantor on or prior
to such date in connection with the sale, transfer or other disposition
of its ownership interest in any Person which is not a Restricted
Subsidiary LESS (b) any amounts in subclauses (i) through (vi) of
clause (a) above used (i) for Investments pursuant to Section
5.02(e)(ix) or (xii), (ii) for prepayments of Debt pursuant to 5.02(g)
or (iii) for Capital Expenditures pursuant to Section 5.02(j)(i).
"AVAILABLE LC AMOUNT" of any Letter of Credit means, at any
time, the maximum amount available to be drawn under such Letter of
Credit at such time (assuming compliance at such time with all
conditions to drawing).
"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement
permitted under Article V that is entered into by and between the U.S.
Borrower and any Hedge Bank.
"BANKERS TRUST" has the meaning specified in the recital of
parties to this Agreement.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) (i) with respect to Term B Advances, the Term C
Advances and Revolving Credit Advances, the rate of interest
announced publicly by Citibank in New York, New York, from
time to time, as Citibank's base rate and (ii) with respect to
Term A Advances, the variable rate of interest per annum
specified from time to
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time by Citibank as the reference rate of interest established
or quoted from time to time by Citibank Canada and then in
effect for determining interest rates on United States dollar
denominated commercial loans made by Citibank Canada in
Canada;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum, PLus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"BORROWERS" has the meaning specified in the recital of
parties to this Agreement.
"BORROWER'S ACCOUNT" means (i) with respect to the Canadian
Borrower, the account of the Canadian Borrower maintained by the
Canadian Borrower with Citibank Canada at its office at 123 Front
Street West, 10th Floor, Toronto, Ontario, Canada, M5J2M3, Account No.
2/012752/019, Re: Accuride Canada Inc. and (ii) with respect to the
U.S. Borrower, the account of the U.S. Borrower maintained by the U.S.
Borrower with Citibank at its office at 399 Park Avenue, New York, New
York 10043, Account No.
4075-2127, Re: Accuride Corporation.
"BORROWING" means a Term A Borrowing, a Term B Borrowing, a
Term C Borrowing, a Revolving Credit Borrowing or a Swing Line
Borrowing.
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"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and with
respect to notices and determinations in connection with, and payments
of principal and interest on, the Term A Advances, on which banks are
not required or authorized to close in Toronto, Ontario, Canada, and if
the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CANADIAN BORROWER" has the meaning specified in the recital
of parties to this Agreement.
"CANADIAN LENDING OFFICE" means, with respect to any Term A
Lender, the office of a Subsidiary or Affiliate of such Lender Party
specified as its "Canadian Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender Party, as the case may be, or such other office of
such Lender Party as such Lender Party may from time to time specify to
the Canadian Borrower and the Administrative Agent.
"CAPITAL EXPENDITURES" means, for any Person for any period,
the sum, without duplication, of all expenditures made, directly or
indirectly (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under
Capitalized Leases, but excluding any amount representing capitalized
interest), by such Person or any of its Restricted Subsidiaries during
such period for equipment, fixed assets, real property or improvements,
or for replacements or substitutions therefor or additions thereto,
that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance
sheet of such Person, PROVIDED that Capital Expenditures shall not
include (without duplication) (a) any expenditures made in connection
with the replacement, substitution, repair or restoration of any assets
to the extent financed (i) with insurance proceeds received by the U.S.
Borrower or any of its Restricted Subsidiaries on account of the loss
of, or any damage to, the assets being replaced, substituted for,
repaired or restored or (ii) with the proceeds of any compensation
awarded to the U.S. Borrower or any of its Restricted Subsidiaries as a
result of the taking, by eminent domain or condemnation, of the assets
being replaced or substituted for, (b) any expenditures for the
purchase price of any equipment that is purchased simultaneously with
the trade-in of any existing equipment by the U.S. Borrower or any of
its Restricted Subsidiaries to the extent that the gross amount of such
purchase price is reduced by any credit granted by the seller of such
equipment for the equipment being traded in, (c) any expenditures for
the purchase price of any property, plant or equipment purchased within
one year of the consummation of any sale, lease, transfer or other
disposition of any asset of the U.S. Borrower or any of its Restricted
Subsidiaries in accordance with the provisions of Section 5.02(d) to
the extent purchased with Net Cash Proceeds of such sale, lease,
transfer or other disposition, (d) Investments made pursuant to Section
5.02(e)(vii), or (e) any acquisition by the U.S. Borrower or any of its
Restricted Subsidiaries (by purchase or otherwise) of all or
substantially all of the business, property or fixed assets of, or the
stock or other evidence of beneficial ownership of, any Restricted
Subsidiary or any division, business unit or line of business of any
Restricted Subsidiary in accordance with Section 5.02(e).
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
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"CASH COLLATERAL ACCOUNT" has the meaning specified in the
Pledge Agreement.
"CASH EQUIVALENTS" means (i) marketable securities (a) issued
or directly and unconditionally guaranteed as to interest and principal
by the United States government or (b) issued by any agency of the
United States of America the obligations of which are backed by the
full faith and credit of the United States, in each case maturing
within 24 months after the date of acquisition thereof; (ii) marketable
direct obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within 24 months after
the date of acquisition thereof and having, at the time of the
acquisition thereof, an investment grade rating generally obtainable
from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no
more than 12 months from the date of creation thereof and having, at
the time of the acquisition thereof, a rating of a least A-2 from S&P
or at least P-2 from Moody's; (iv) domestic and eurodollar certificates
of deposit or bankers' acceptances maturing within 24 months after the
date of acquisition thereof and issued or accepted by any Lender or by
any other commercial bank that has combined capital and surplus of not
less than $250,000,000; (v) repurchase agreements with a term of not
more than 30 days for underlying securities of the types described in
clauses (i), (ii) and (iv) above entered into with any commercial bank
meeting the requirements specified in clause (iv) above or with any
securities dealer of recognized national standing, (vi) shares of
investment companies that are registered under the Investment Company
Act of 1940 and that invest solely in one or more of the types of
investments referred to in clauses (i) through (v) above, and (vii) in
the case of any Restricted Subsidiary which is not a U.S. Person, high
quality, short-term liquid Investments made by such Restricted
Subsidiary in the ordinary course of managing its surplus cash position
in a manner consistent with past practices.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHANGE OF CONTROL" means, and shall be deemed to have
occurred, if: (i) (a) the Investor Group shall at any time not own, in
the aggregate, directly or indirectly, beneficially and of record, at
least 35% of the outstanding Voting Stock of U.S. Borrower (other than
as the result of one or more widely distributed offerings of common
stock of the U.S. Borrower, in each case whether by the U.S. Borrower
or by the Investor Group) and/or (b) any person, entity or "group"
(within the meaning of Section 13(d) or 14 (d) of the Exchange Act)
shall at any time have acquired direct or indirect beneficial ownership
of a percentage of the outstanding Voting Stock of U.S. Borrower that
exceeds the percentage of such Voting Stock then beneficially owned, in
the aggregate, by the Investor Group, UNLESS, in the case of either
clause (a) or (b) above, the Investor Group shall, at the relevant
time, have the collective right or ability, either by contract or
pursuant to a written proxy or other written evidence of voting power,
to elect or designate for election a majority of the Board of Directors
of the U.S. Borrower; and/or (ii) at any time Continuing Directors
shall not constitute a majority of the
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Board of Directors of the U.S. Borrower. For purposes of this
definition, "Continuing Director" means, as of any date of
determination, an individual (A) who is a member of the Board of
Directors of the U.S. Borrower on the Closing Date, (B) who, as of such
date of determination, has been a member of such Board of Directors for
at least the 12 preceding months (or, if such date of determination
occurs during the period comprising the first 12 months after the
Closing Date, since the Closing Date), or (C) who has been nominated to
be a member of such Board of Directors, directly or indirectly, by KKR
or its Affiliates, or Persons nominated by KKR or its Affiliates, or
who has been nominated to be a member of such Board of Directors by a
majority of the other Continuing Directors then in office.
"CITIBANK" has the meaning specified in the recital of parties
to this Agreement.
"CITICORP" has the meaning specified in the recital of parties
to this Agreement.
"CLOSING DATE" means January 21, 1998, the date on which the
Initial Extension of Credit occurred under the Original Credit
Agreement.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.
"COLLATERAL DOCUMENTS" means the Pledge Agreement and any
other agreement that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a
Term C Commitment, a Revolving Credit Commitment or a Letter of Credit
Commitment.
"CONFIDENTIAL INFORMATION" has the meaning specified in
Section 9.11.
"CONSENT" means the Consent attached hereto, executed by the
Subsidiary Guarantors.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"CSI" means Citicorp Securities, Inc., a Delaware corporation.
"CUMULATIVE AVAILABLE CONSOLIDATED NET INCOME" means, as of
any date of determination, Consolidated Net Income of the U.S. Borrower
and its Restricted Subsidiaries less cash dividends paid with respect
to preferred stock for the period (taken as one accounting period)
commencing on the Closing Date and ending on the last day of the most
recent Fiscal Quarter for which financial statements have been
delivered to the Lender Parties pursuant to Section 5.03(b) or (c).
11
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP, but excluding the current
portion of any deferred income taxes.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date) and (b) all other items
(including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person, but
excluding the current portion of any deferred income taxes.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables and accrued expenses incurred in the
ordinary course of such Person's business) that in accordance with GAAP
would be shown on the liability side of the balance sheet of such
Person, (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale
of such property), it being understood that if such Person has not
assumed or otherwise become liable for such Obligations, the amount of
the Debt of such Person in connection therewith shall be limited to the
lesser of the face amount of the related Obligations or the fair market
value of all property of such Person securing such Obligations, (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities issued for the account of such
Person, (g) all Obligations of such Person in respect of Hedge
Agreements, (h) all Debt of others referred to in clauses (a) through
(g) above or clause (i) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (i) to pay or purchase such Debt or
to advance or supply funds for the payment or purchase of such Debt,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (iii) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (iv) otherwise to assure a creditor against
loss; PROVIDED that any such guaranteed Obligations shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business, and (i) all Debt referred to in clauses (a) through
(h) above of another Person secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt; PROVIDED that
the amount of Debt of such Person under clauses (h) and
12
(i) above shall (subject to any obligation set forth therein) be deemed
to be the principal amount of the Debt guaranteed or secured thereby
and, with respect to any Lien on property of such Person as described
in clause (i) above, if such Person has not assumed or otherwise become
liable for any such Debt, the amount of the Debt of such Person in
connection therewith shall be limited to the lesser of the face amount
of such Debt or the fair market value of all property of such Person
securing such Debt.
"DECLINED AMOUNT" has the meaning specified in Section
2.06(c).
"DECLINING LENDER" has the meaning specified in Section
2.06(c).
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to either Borrower pursuant to Section 2.01 or 2.02 at or prior
to such time which has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid
as of such time, including, without limitation, any amount required to
be paid by such Lender Party to (a) the Swing Line Bank pursuant to
Section 2.02(b) to purchase a portion of a Swing Line Advance made by
the Swing Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c)
to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.02(e) to
reimburse the Administrative Agent for the amount of any Advance made
by the Administrative Agent for the account of such Lender Party, (d)
any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 8.05 to
reimburse the Administrative Agent or the Issuing Bank for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be
deemed paid pursuant to Section 2.15(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the
same date as the Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 7.01(f).
13
"DOCUMENTATION AGENT" has the meaning specified in the recital
of parties to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the U.S. Borrower and the
Administrative Agent.
"DOMESTIC SUBSIDIARY" means any Subsidiary of the U.S.
Borrower which is not a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of the amounts for such period of (a) Net Income
PLUS (b) to the extent included in computing Net Income, the sum
(without duplication) of (i) Interest Expense, (ii) taxes computed on
the basis of income, (iii) depreciation expense, (iv) amortization
expense (including amortization of deferred financing fees), (v) any
expenses or charges incurred in connection with any issuance of debt or
equity securities (including upfront fees payable in respect of bank
facilities), (vi) any fees and expenses related to Investments
permitted pursuant to Section 5.02(e) of this Agreement, (vii) losses
on asset sales, (viii) restructuring charges or reserves, (ix) any
deduction for minority interest expense, (x) fees or expenses incurred
or paid by the U.S. Borrower or any of its Restricted Subsidiaries in
connection with the Acquisition, the financing therefor and the other
transactions contemplated hereby and thereby, (xi) any other non-cash
charges, (xii) any other non-recurring charges, (xiii) currency losses
and (xiv) additional expenses in connection with labor disruptions or
the potential therefor, MINUS (c) to the extent included in computing
Net Income the sum, without duplication, of the amounts for such period
of (i) any non-recurring gains, (ii) all non-cash gains, (iii) gains on
asset sales, and (iv) currency gains, in each case of the U.S. Borrower
and its Restricted Subsidiaries, determined in accordance with GAAP for
such period, PROVIDED that, for purposes of such calculation, in the
case of any Restricted Subsidiary acquired by the U.S. Borrower or any
of its Restricted Subsidiaries following the commencement of any such
period, amounts attributable to such Restricted Subsidiary shall be
calculated as though such Restricted Subsidiary had been acquired on
the first day of such period, and PROVIDED FURTHER that for purposes of
Section 5.02(e)(xi) and 5.04 only, in the case of each Person who
becomes a Restricted Subsidiary of the U.S. Borrower or any of its
Restricted Subsidiaries following the commencement of such period,
EBITDA shall be increased or decreased, as the case may be, by the Pro
Forma EBITDA Adjustment.
"ELIGIBLE ASSIGNEE" means (a) with respect to the Term B
Facility, the Term C Facility or the Revolving Credit Facility, (i) a
Lender; (ii) an Affiliate of a Lender; (iii) a commercial bank
organized under the laws of the United States, or any State thereof,
and having total assets of at least $3,000,000,000; (iv) a savings and
loan association or savings bank organized under the laws of the United
States, or any State thereof, and having total assets of at least
$3,000,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated
with its General Arrangements to Borrow, or a political subdivision of
any such country, and having total assets in excess of $3,000,000,000,
so long as such bank
14
is acting through a branch or agency located in the United States; (vi)
the central bank of any country that is a member of the OECD; and (vii)
a finance company, insurance company or other financial institution or
fund (whether a corporation, partnership, trust or other entity) that
is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in
excess of $250,000,000; and (viii) any other Person approved by the
Administrative Agent and the U.S. Borrower, such approval not to be
unreasonably withheld or delayed, (b) with respect to the Term A
Facility, (i) a bank listed on Schedule I or II to the Bank Act
(Canada), and having a combined capital and surplus of at least
$250,000,000, and, so long as no Event of Default has occurred and is
continuing, approved by the Canadian Borrower, such approval not to be
unreasonably withheld or delayed, (ii) an Affiliate of a Lender or
(iii) any other Person approved by the Administrative Agent and the
Canadian Borrower, such approval not to be unreasonably withheld or
delayed, and (c) with respect to the Letter of Credit Facility, a
Person that is an Eligible Assignee under subclause (ii), (iii) or (v)
of clause (a) of this definition and is approved by the Administrative
Agent and the U.S. Borrower, such approval not to be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that neither any Loan Party nor
any Affiliate of a Loan Party shall qualify as an Eligible Assignee
under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. Section references to ERISA are to
ERISA as in effect at the date of this Agreement and any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.
"ERISA AFFILIATE" means each person (as defined in Section
3(9) of ERISA) that together with any Loan Party would be deemed to be
a "single employer" within the meaning of Section 414(b) or (c) of the
Internal Revenue Code or, solely for purposes of Section 302 of
15
ERISA and Section 412 of the Internal Revenue Code, is treated as a
single employer under Section 414 of the Internal Revenue Code.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Appropriate Borrower and the Administrative
Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple of 1/16
of 1%) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period (or, if any Reference Bank
shall not have such a Eurodollar Rate Advance, $1,000,000) and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to
and received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, SUBJECT,
HOWEVER, to the provisions of Section 2.07.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 7.01.
16
"EXCESS CASH FLOW" means, for any period, an amount equal to
the sum, without duplication, of:
(a) Consolidated Net Income of the U.S. Borrower and
its Restricted Subsidiaries for such period (other than any
portion of Consolidated Net Income attributable to earnings in
respect of joint venture interests in excess of dividends or
distributions actually received by the U.S. Borrower and its
Restricted Subsidiaries), PLUS
(b) the aggregate amount of all non-cash charges
deducted in arriving at such Consolidated Net Income, PLUS
(c) the amount of any net decrease in the excess of
Consolidated Current Assets (excluding cash and Cash
Equivalents) over Consolidated Current Liabilities of the U.S.
Borrower and its Restricted Subsidiaries during such period,
MINUS
(d) the aggregate amount of all non-cash credits
included in arriving at such Consolidated Net Income, PLUS
(e) the aggregate net non-cash loss realized by the
U.S. Borrower and its Restricted Subsidiaries in connection
with the sale, lease, transfer or other disposition of assets
(other than sales of inventory in the ordinary course of
business) by the U.S. Borrower and its Restricted Subsidiaries
during such period, MINUS
(f) the aggregate amount of Capital Expenditures made
by the U.S. Borrower and its Restricted Subsidiaries in cash
(excluding the principal amount of any Debt incurred to
finance such Capital Expenditures, whether incurred in such
period or a subsequent period) pursuant to Section 5.02(j),
MINUS
(g) the amount of any net increase in the excess of
Consolidated Current Assets (less cash and Cash Equivalents)
over Consolidated Current Liabilities of the U.S. Borrower and
its Restricted Subsidiaries during such period, MINUS
(h) the aggregate amount of any premium, make-whole
or penalty payments actually paid in cash during such period
that are required in connection with any prepayment of Debt
and that are accounted for by the U.S. Borrower as
extraordinary items, MINUS
(i) the aggregate amount of all mandatory prepayments
of Revolving Credit Advances, Letter of Credit Advances and
Swing Line Advances made during such period (to the extent the
Revolving Credit Facility is permanently reduced by the amount
of such prepayments), MINUS
(j) the aggregate amount of all scheduled principal
payments of Debt of the U.S. Borrower or its Restricted
Subsidiaries (including, without limitation, Term A Advances,
Term B Advances, and Term C Advances, the principal component
of
17
payments with respect to Obligations under Capitalized Leases
and, so long as the Mexico Subsidiary is a Restricted
Subsidiary, all principal payments on revolving or term loans
of the Mexico Subsidiary (whether or not commitments are
reduced thereby), but excluding Revolving Credit Advances,
Letter of Credit Advances and Swing Line Advances), MINUS
(k) the amount of Investments made during such period
pursuant to Section 5.02(e) to the extent that such
Investments were financed with internally generated cash flow
of the U.S. Borrower and its Restricted Subsidiaries, MINUS
(l) the aggregate amount of expenditures actually
made by the U.S. Borrower and its Restricted Subsidiaries in
cash during such period (including, without limitation, the
payment of financing fees) to the extent that such
expenditures are not expensed during such period, MINUS
(m) payments by the Borrowers and their Restricted
Subsidiaries during such period in respect of long-term
liabilities of the Borrowers and their Restricted Subsidiaries
other than Debt, MINUS
(n) the amount paid during such period by the U.S.
Borrower to repurchase shares of its capital stock (and/or
options or warrants in respect thereof) held by its officers,
directors and employees so long as such repurchase is pursuant
to, and in accordance with the terms of management and/or
employee stock plans, stock subscription agreements or
shareholder agreements, MINUS
(o) the aggregate net non-cash gain realized by the
U.S. Borrower and its Restricted Subsidiaries in connection
with the sale, lease, transfer or other disposition of assets
(other than sales of inventory in the ordinary course of
business) by the U.S. Borrower and its Restricted Subsidiaries
during such period.
"EXISTING DEBT" means Debt of the U.S. Borrower and its
Restricted Subsidiaries outstanding immediately before giving effect to
the AKW Acquisition.
"FACILITY" means the Term A Facility, the Term B Facility, the
Term C Facility, the Revolving Credit Facility, the Swing Line Facility
or the Letter of Credit Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
18
"FISCAL QUARTER" means any fiscal quarter of the U.S. Borrower
and its Consolidated Subsidiaries that occurs within any Fiscal Year.
"FISCAL YEAR" means a fiscal year of the U.S. Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of Consolidated EBITDA of the U.S. Borrower
and its Restricted Subsidiaries to the sum of (i) Consolidated Interest
Expense, PLUS (ii) Capital Expenditures made pursuant to Section
5.02(j)(i) from cash on hand or Borrowings under the Revolving Credit
Facility, PLUS (iii) principal amounts of all Funded Debt payable
(unless paid in a prior period), in each case, by the U.S. Borrower and
its Restricted Subsidiaries for the most recently completed Measurement
Period prior to such date (other than mandatory prepayments pursuant to
Section 2.06(b)(i), (ii) or (iv)).
"FOREIGN GOVERNMENT SCHEME OR ARRANGEMENT" has the meaning
specified in Section 4.01(l)(ii).
"FOREIGN PLAN" has the meaning specified in Section
4.01(l)(ii).
"FOREIGN SUBSIDIARY" means any Subsidiary of the U.S. Borrower
which is a corporation organized under the laws of any jurisdiction
other than the United States or any state thereof.
"FUNDED DEBT" of any Person means Debt in respect of the
Advances, in the case of the Borrowers, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date, including,
without limitation, all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"GUARANTY" has the meaning specified in Section 6.01.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
6.01(a).
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
19
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodities future or
option contracts for materials used in the ordinary course of business
and other similar agreements.
"HEDGE BANK" means any Lender Party or any of its Affiliates
in its capacity as a party to a Bank Hedge Agreement.
"HUBCAP" means Hubcap Acquisition, L.L.C., an affiliate of
KKR.
"INDEMNIFIED PARTY" has the meaning specified in Section
9.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated December 12, 1997 used by CSI, as arranger of the Facilities
other than the Term C Facility in connection with the syndication of
the Commitments other than the Term C Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowings
under the Original Credit Agreement.
"INITIAL ISSUING BANK" has the meaning specified in the
recital of parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of Consolidated EBITDA of the U.S. Borrower
and its Restricted Subsidiaries to Consolidated Interest Expense of the
U.S. Borrower and its Restricted Subsidiaries for the most recently
completed Measurement Period prior to such date.
"INTEREST EXPENSE" means, for any Person for any period, cash
interest expense (including that attributable to Capital Leases in
accordance with GAAP), net of cash interest income, of such Person with
respect to all outstanding Debt of such Person, including, without
limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and
net costs under Hedge Agreements (other than currency swap agreements,
currency future or option contracts and other similar agreements), but
excluding, however, amortization of deferred financing costs and any
other amounts of non-cash interest, all as calculated in accordance
with GAAP; PROVIDED, that for purposes of the four Fiscal Quarters
immediately following the Closing Date, Interest Expense for each
Measurement Period shall be calculated after giving pro forma effect to
Debt incurred in connection with the Acquisition, as though such Debt
had been incurred on the first day of such Measurement Period and
PROVIDED FURTHER that (a) except as provided in clause (b) below, there
shall be excluded from any determination of Consolidated Interest
Expense of the U.S. Borrower and its Restricted Subsidiaries for any
20
period the cash interest expense (or income) of all Unrestricted
Subsidiaries for such period to the extent otherwise included in such
Consolidated Interest Expense and (b) there shall be included in any
determination of Consolidated Interest Expense for the U.S. Borrower
and its Restricted Subsidiaries for any period the cash interest
expense (or income) of any Person which becomes a Restricted Subsidiary
(through an acquisition in accordance with Section 5.02(e) or
designation or otherwise) for such entire period, assuming that any
Debt incurred or prepaid in connection with any such acquisition or
designation had been incurred or prepaid on the first day of such
period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing to either Borrower, the period
commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance, and ending on the last day of the period selected by such
Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or, if available to all of the Appropriate Lenders, nine or
twelve months, as such Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; PROVIDED, HOWEVER, that:
(a) such Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, PROVIDED, HOWEVER, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
21
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (h) or (i) of the definition of
"DEBT" in respect of such Person.
"INVESTOR GROUP" means KKR and Hubcap.
"ISSUING BANK" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.07.
"KAC" has the meaning specified in the Preliminary Statements
to this Agreement.
"KKR" means Kohlberg Kravis Roberts & Co., L.P..
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(e)(ii)(A).
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing
Line Bank.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07.
"LETTERS OF CREDIT" has the meaning specified in Section
2.01(e).
"LETTER OF CREDIT ADVANCE" means an advance made by the
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as the Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the amount of the Issuing Bank's Letter of
Credit Commitment at such time and (b) $20,000,000, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"LEVERAGE RATIO" means, as of any date of determination, the
ratio of (a) total Funded Debt of the U.S. Borrower and its Restricted
Subsidiaries, LESS the amount of cash reflected on the U.S. Borrower's
balance sheet for the most recently ended Fiscal Quarter in excess of
$5,000,000, to (b) (i) for purposes of determining compliance with
Section 5.02(f)(v) and 5.04(a), 50% of Consolidated EBITDA and (ii) for
all other purposes, Consolidated EBITDA,
22
in each case, of the U.S. Borrower and its Restricted Subsidiaries for
the most recently completed Measurement Period prior to such date.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, any agreement to give any of the
foregoing, any lien or retained security title of a conditional vendor
and any easement, right of way or other encumbrance on title to real
property.
"LIGHT WHEELS FACILITY" means the manufacturing facility of
the U.S. Borrower located in Columbia, Tennessee.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Guaranty, the
Subsidiaries Guaranty and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Guaranty, (iv) the Subsidiaries Guaranty, (v)
the Collateral Documents, (vi) each Letter of Credit Agreement and
(vii) the Consent and (b) for purposes of the Guaranty, the
Subsidiaries Guaranty and the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Guaranty, (iv) the Subsidiaries Guaranty, (v)
the Collateral Documents, (vi) each Letter of Credit Agreement and
(vii) each Bank Hedge Agreement, in each case as amended, supplemented
or otherwise modified from time to time.
"LOAN PARTIES" means the Borrowers and the Subsidiary
Guarantors.
"MAJORITY LENDERS" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available LC Amount of all Letters of Credit outstanding at
such time, (c) the aggregate unused Commitments under the Term A
Facility, the Term B Facility and the Term C Facility at such time and
(d) the aggregate Unused Revolving Credit Commitments at such time;
PROVIDED, HOWEVER, that, if any Lender shall be a Defaulting Lender at
such time, there shall be excluded from the determination of Majority
Lenders at such time (A) the aggregate principal amount of the Advances
owing to such Lender (in its capacity as a Lender) and outstanding at
such time, (B) such Lender's Pro Rata Share of the aggregate Available
LC Amount of all Letters of Credit issued by such Lender and
outstanding at such time, (C) the aggregate unused Term A Commitments,
Term B Commitments and Term C Commitments of such Lender at such time
and (D) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount
of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to the Issuing Bank and the Available LC Amount
of each Letter of Credit shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, financial condition, operations, assets or liabilities of
any Loan Party or any of its Subsidiaries.
23
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, financial condition, operations, assets or
liabilities of any Loan Party or any of its Subsidiaries, (b) the
rights and remedies of the Administrative Agent or any Lender Party
under any Loan Document or Related Document or (c) the ability of any
Loan Party to perform its Obligations under any Loan Document or
Related Document to which it is or is to be a party.
"MEASUREMENT PERIOD" means, as of any date of determination,
(i) for purposes of calculating the Leverage Ratio pursuant to Section
5.02(f)(v) or 5.04(a), the most recently completed eight consecutive
Fiscal Quarters ending on or immediately prior to such date and (ii)
for all other purposes (including for purposes of calculating the
Leverage Ratio pursuant to all provisions of this Agreement other than
Section 5.02(f)(v) or 5.04(a)), the most recently completed four
consecutive Fiscal Quarters ending on or immediately prior to such
date.
"MEXICO FACILITY" means the facility of the Mexico Subsidiary
located in Monterrey, Mexico.
"MEXICO SUBSIDIARY" means Accuride de Mexico, S.A. de C.V., a
company organized and existing under the laws of Mexico.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any asset, the aggregate amount of
cash received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration, but only as
and when received) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication):
(a) reasonable and customary fees, commissions, expenses, issuance
costs, discounts and other costs paid by the U.S. Borrower or any of
its Restricted Subsidiaries in connection with such transaction, (b)
the amount of taxes paid or estimated to be payable in connection with
or as a result of such transaction, (c) the amount of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Debt (other than pursuant to the Facilities) that is secured by a Lien
on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of any such transaction, (d) the
amount of any reasonable reserves established in accordance with GAAP
against any liabilities (other than taxes described in clause (b)
above) that are (i) associated with the assets that are the subject of
such transaction and (ii) retained by the U.S. Borrower or any of its
Restricted Subsidiaries and (e) the amount of any proceeds received
from the sale, lease, transfer or other disposition of any assets
pursuant to Section 5.02(d) to the extent that such proceeds are
reinvested in the business within one year following such sale, lease,
transfer or other disposition; PROVIDED, however, that in the event the
amount of any estimated tax payable described in clause (b) above
exceeds the amount actually paid, or upon any subsequent reduction in
the amount of any reserve described in clause (d) above, the U.S.
Borrower or its applicable Restricted Subsidiary shall be deemed to
have received Net Cash Proceeds in an amount equal to such excess or
reduction, at the time of payment of such taxes or on the date of such
reduction, as the case may be; PROVIDED FURTHER that any portion of any
proceeds received from the sale, lease, transfer or other disposition
of any assets pursuant to Section 5.02(d) that has not been reinvested
within such one-year period shall (i) be deemed to be Net Cash Proceeds
of such a sale occurring on the last day of such one-year period and
(ii) be applied to the prepayment of Advances in accordance with
Section 2.06(b)(ii); PROVIDED FURTHER
24
that, for purposes of the preceding proviso, such one-year period shall
be extended by up to six months from the last day of such one-year
period so long as (A) such proceeds are to be reinvested within such
additional six-month period under the U.S. Borrower's or any of its
Restricted Subsidiaries' business plan as most recently adopted in good
faith by its board of directors and (B) such Person believes in good
faith that such proceeds will be so reinvested within such additional
six-month period.
"NET INCOME" means, with respect to any Person for any period,
the net income (or loss) of such Person; PROVIDED that, for purposes of
determining Net Income for any Person and its Restricted Subsidiaries
on a Consolidated basis, there shall be excluded from such
determination (i) any after-tax gains or losses, and any related fees
and expenses, in each case to the extent attributable to the sale of
assets, and (ii) any net extraordinary gains (or losses).
"NOTE" means a Term A Note, a Term B Note, a Term C Note or a
Revolving Credit Note.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement
dated January 15, 1998 between the U.S. Borrower and the purchasers of
the Subordinated Notes, pursuant to which the Subordinated Notes are
issued.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(e).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(e).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 7.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
25
"ORIGINAL LENDER PARTIES" has the meaning specified in the
Preliminary Statements.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERFORMANCE LEVEL" means, in respect of Advances outstanding
under the Term A Facility, the Term B Facility and the Revolving Credit
Facility, Performance Level I, Performance Level II, Performance Level
III, Performance Level IV, Performance Level V or Performance Level VI,
as the context may require, and in respect of Advances outstanding
under the Term C Facility, Performance Level A, Performance Level B or
Performance Level C, as the context may require.
"PERFORMANCE LEVEL I" means, at any date of determination,
that the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 3.25:1.00 for the most
recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL II" means, at any date of determination,
that (a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I and
(b) the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 3.75:1.00 for the most
recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL III" means, at any date of determination,
that (a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I or
Performance Level II and (b) the U.S. Borrower and its Restricted
Subsidiaries shall have maintained a Leverage Ratio of less than
4.25:1.00 for the most recently completed Measurement Period prior to
such date.
"PERFORMANCE LEVEL IV" means, at any date of determination,
that (a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I,
Performance Level II or Performance Level III and (b) the U.S. Borrower
and its Restricted Subsidiaries shall have maintained a Leverage Ratio
of less than 4.75:1.00 for the most recently completed Measurement
Period prior to such date.
"PERFORMANCE LEVEL V" means, at any date of determination,
that (a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I,
Performance Level II, Performance Level III or Performance Level IV and
(b) the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 5.25:1.00 for the most
recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL VI" means, at any date of determination,
that the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level I,
Performance Level II, Performance Level III, Performance Level IV or
Performance Level V.
26
"PERFORMANCE LEVEL A" means, at any date of determination,
that the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 4.25:1.00 for the most
recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL B" means, at any date of determination,
that (a) the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level A,
and (b) the U.S. Borrower and its Restricted Subsidiaries shall have
maintained a Leverage Ratio of less than 5.25:1.00 for the most
recently completed Measurement Period prior to such date.
"PERFORMANCE LEVEL C" means, at any date of determination,
that the Leverage Ratio of the U.S. Borrower and its Restricted
Subsidiaries does not meet the requirements for Performance Level A or
Performance Level B.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
outstanding at any time and securing indebtedness that is not overdue
for a period of more than 30 days; (c) Liens arising from judgments or
decrees in circumstances not constituting an Event of Default under
Section 7.01(g); (d) Liens incurred or deposits made in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business; (e) ground
leases in respect of real property on which facilities owned or leased
by the U.S. Borrower or any of its Subsidiaries are located; (f)
easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar charges or encumbrances not interfering in
any material respect with the business of the U.S. Borrower and its
Subsidiaries taken as a whole; (g) any interest or title of a lessor or
secured by a lessor's interest under any lease permitted by this
Agreement and any Liens arising from any financing statement filed in
connection with such lease; (h) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods; (i) Liens on goods
the purchase price of which is financed by a documentary letter of
credit issued for the account of the U.S. Borrower or any of its
Subsidiaries, PROVIDED that such Lien secures only the obligations of
the U.S. Borrower or such Subsidiaries in respect of such letter of
credit to the extent permitted under Section 5.02(a); and (j) leases or
subleases granted to others not interfering in any material respect
with the business of the U.S. Borrower and its Subsidiaries, taken as a
whole.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
27
"PHELPS DODGE" means Phelps Dodge Corporation.
"PLAN" means any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA and subject to Title IV of ERISA, that
is or was within any of the preceding five plan years maintained or
contributed to by (or to which there is or was an obligation to
contribute or to make payments of) any Loan Party or an ERISA
Affiliate.
"PLEDGE AGREEMENT" has the meaning specified in Section
3.04(b)(viii).
"PLEDGE AGREEMENT SUPPLEMENT" has the meaning specified in the
Pledge Agreement
"PREFERRED STOCK" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"PREPAYMENT DATE" has the meaning specified in Section
2.06(c).
"PRO FORMA EBITDA ADJUSTMENT" means, for any period, an amount
equal to the pro forma increase or decrease in Consolidated EBITDA that
the U.S. Borrower in good faith predicts will occur as a result of
reasonably identifiable and supportable net cost savings or additional
net costs that will be realizable during such period by combining the
operations associated with an acquisition with the operations of the
U.S. Borrower and its Subsidiaries; PROVIDED that, so long as such net
cost savings or additional net costs will be realizable at any time
during such period, it shall be assumed, for purposes of projecting
such pro forma increase or decrease in such Consolidated EBITDA, that
such net cost savings or additional net costs will be realizable during
the entirety of such period; and PROVIDED FURTHER that any such pro
forma increase or decrease in such Consolidated EBITDA shall be without
duplication of any net cost savings or additional net costs actually
realized during such period and already included in such Consolidated
EBITDA.
"PRO RATA SHARE" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount TIMES a
fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time and the denominator of which
is the Revolving Credit Facility at such time.
"PURCHASE PRICE ADJUSTMENT AMOUNT" means the amount,
determined pursuant to Section 1.5 of the Stock Purchase Agreement,
equal to the lesser of zero and the difference between the "Redemption
Price" and the "Adjusted Redemption Price" (as such terms are defined
in the Stock Purchase Agreement).
"REDEEMABLE" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
28
"REDUCTION AMOUNT" has the meaning specified in Section
2.06(b)(v).
"REFERENCE BANKS" means Citibank, Bankers Trust and Wells
Fargo.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Subordinated Debt Documents, the
Stock Purchase Agreement, the AKW LLC Agreement, the AKW LP Agreement
and the AKW Acquisition Agreement.
"REPORTABLE EVENT" means an event described in Section 4043 of
ERISA and the regulations thereunder.
"REQUIREMENTS OF LAW" means, with respect to any Person, all
laws, constitutions, statutes, treaties, ordinances, rules and
regulations, all orders, writs, decrees, injunctions, judgments,
determinations or awards of an arbitrator, a court or any other
governmental authority, and all governmental authorizations, binding
upon or applicable to such Person or to any of its properties, assets
or businesses.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or
any of its Subsidiaries.
"RESTRICTED SUBSIDIARY" means, as of any date of
determination, any Subsidiary of the U.S. Borrower which is not an
Unrestricted Subsidiary.
"REVENUES" means, for any Person for any period, an amount
equal to the revenues of such Person; PROVIDED that, for purposes of
such determination, (i) the revenues of any business acquired by the
U.S. Borrower or any of its Subsidiaries during such period pursuant to
Section 5.02(e)(xi) or (xii) shall be determined on a pro forma basis
as if such acquisition had been consummated on the first day of such
period and (ii) the revenues of any business sold or otherwise disposed
of by the U.S. Borrower or any of its Subsidiaries in accordance with
Section 5.02(d) during such period shall be excluded in their entirety.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(c).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Revolving Credit
29
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"REVOLVING CREDIT LENDER" means any Lender that has a
Revolving Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the U.S.
Borrower payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-3 hereto, evidencing the aggregate
indebtedness of the U.S. Borrower to such Lender resulting from the
Revolving Credit Advances made by such Lender.
"SECURED PARTIES" means the Administrative Agent, the Lender
Parties and the Lenders party to Bank Hedge Agreements.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"STOCK PURCHASE AGREEMENT" means the Stock Subscription and
Redemption Agreement dated November 17, 1997, between Hubcap and Phelps
Dodge.
"SUBORDINATED DEBT" means the Debt evidenced by the
Subordinated Notes and any other Debt of the Borrowers that is
subordinated to the Obligations of the Borrowers under the Loan
Documents on, and that otherwise contains, terms and conditions
satisfactory to the Majority Lenders.
"SUBORDINATED DEBT DOCUMENTS" means the Note Purchase
Agreement and all other agreements, indentures and instruments pursuant
to which Subordinated Debt is issued.
"SUBORDINATED NOTES" means the subordinated notes of the U.S.
Borrower in an aggregate principal amount of $200,000,000 issued
pursuant to the Note Purchase Agreement.
30
"SUBSIDIARIES GUARANTY" has the meaning specified in Section
3.01(k)(vii).
"SUBSIDIARIES GUARANTY SUPPLEMENT" means a Guaranty Supplement
as defined in the Subsidiaries Guaranty.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Restricted Subsidiaries of
the U.S. Borrower that are Domestic Subsidiaries and are listed on
Schedule II hereto, and each other Restricted Subsidiary of the U.S.
Borrower that shall be required to deliver a Subsidiaries Guaranty
Supplement pursuant to this Agreement.
"SURVIVING DEBT" has the meaning specified in Section 3.05(d).
"SWING LINE ADVANCE" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) any Revolving Credit
Lender pursuant to Section 2.02(b).
"SWING LINE BANK" has the meaning specified in the recital of
parties to this Agreement.
"SWING LINE BORROWING" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"SWING LINE FACILITY" has the meaning specified in Section
2.01(d).
"SYNDICATION AGENT" has the meaning specified in the recital
of parties to this Agreement.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM A ADVANCE" has the meaning specified in Section 2.01(a).
"TERM A BORROWING" means a borrowing consisting of
simultaneous Term A Advances of the same Type made by the Term A
Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term A
31
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Term A Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"TERM A FACILITY" means, at any time, the aggregate amount of
the Term A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the Canadian Borrower
payable to the order of any Term A Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the indebtedness of the Canadian
Borrower to such Lender resulting from the Term A Advance made by such
Lender.
"TERM B ADVANCE" has the meaning specified in Section 2.01(b).
"TERM B BORROWING" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term B Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"TERM B FACILITY" means, at any time, the aggregate amount of
the Term B Lenders' Term B Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the U.S. Borrower
payable to the order of any Term B Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the U.S. Borrower to
such Lender resulting from the Term B Advance made by such Lender.
"TERM C ADVANCE" has the meaning specified in Section 2.01(f).
"TERM C BORROWING" means a borrowing consisting of
simultaneous Term C Advances of the same Type made by the Term C
Lenders.
"TERM C COMMITMENT" means, with respect to any Term C Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term C Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to
32
Section 9.07(d) as such Lender's Term C Commitment, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"TERM C FACILITY" means, at any time, the aggregate amount of
the Term C Lenders' Term C Commitments at such time.
"TERM C LENDER" means any Lender that has a Term C Commitment.
"TERM C NOTE" means a promissory note of the U.S. Borrower
payable to the order of any Term C Lender, in substantially the form of
Exhibit A-4 hereto, evidencing the indebtedness of the U.S. Borrower to
such Lender resulting from the Term C Advance made by such Lender.
"TERMINATION DATE" means (a) with respect to the Revolving
Credit Facility, the Letter of Credit Facility and the Swing Line
Facility, the earlier of January 21, 2004 and the date of termination
in whole of the Revolving Credit Commitments, the Letter of Credit
Commitments and the Swing Line Commitments pursuant to Section 2.05 or
7.01, (b) with respect to the Term A Facility, the earlier of January
21, 2005 and the date of termination in whole of the Term A Commitments
pursuant to Section 2.05 or 7.01, (c) with respect to the Term B
Facility, the earlier of January 21, 2006 and the date of termination
in whole of the Term B Commitments pursuant to Section 2.05 or 7.01,
and (d) with respect to the Term C Facility, the earlier of January 21,
2007 and the date of termination in whole of the Term C Commitments
pursuant to Section 2.05 or 7.01.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of inventory or other goods to the U.S. Borrower or any of its
Subsidiaries to effect payment for such inventory or other goods, the
conditions to drawing under which include the presentation to the
Issuing Bank of negotiable bills of lading, invoices and related
documents sufficient, in the judgment of the Issuing Bank, to create a
valid and perfected lien on or security interest in such inventory,
bills of lading, invoices and related documents in favor of the Issuing
Bank.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNFUNDED CURRENT LIABILITY" of any Plan means the amount, if
any, by which the present value of the accumulated benefits under the
Plan as of the close of its most recent plan year, determined in
accordance with Statement of Financial Accounting Standards No. 87 as
in effect on the date hereof, but based upon the actuarial assumptions
that would be used by the Plan's actuary in a termination of the Plan,
exceeds the fair market value of the assets allocable thereto.
"UNITED STATES" and "U.S." each mean the United States of
America.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the U.S.
Borrower that is formed or acquired after the Closing Date, PROVIDED,
that at the time of such formation or
33
acquisition (or promptly thereafter) the U.S. Borrower designates such
Subsidiary as an Unrestricted Subsidiary in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary on the Closing Date
(other than the Canadian Borrower) subsequently re-designated as an
Unrestricted Subsidiary by the U.S. Borrower in a written notice to the
Administrative Agent pursuant to Section 5.03(h), PROVIDED that such
re-designation shall be deemed to be an Investment on the date of such
re-designation in an Unrestricted Subsidiary in an amount equal to the
sum of (i) the net worth of such re-designated Restricted Subsidiary
immediately prior to such re-designation (such net worth to be
calculated without regard to any guaranty provided by such
re-designated Restricted Subsidiary pursuant to the Subsidiary
Guaranty) plus (ii) the aggregate principal amount of any Debt owed by
such redesignated Restricted Subsidiary to either Borrower or any other
Restricted Subsidiary immediately prior to such re-designation, all
calculated, except as set forth in the parenthetical to clause (i), on
a consolidated basis in accordance with GAAP, and (c) any Subsidiary of
any Unrestricted Subsidiary; PROVIDED, HOWEVER, that (i) at the time of
any written re-designation by the U.S. Borrower to the Administrative
Agent of any Unrestricted Subsidiary as a Restricted Subsidiary
pursuant to Section 5.03(h), the Unrestricted Subsidiary so
re-designated shall no longer constitute an Unrestricted Subsidiary,
(ii) no Unrestricted Subsidiary may be re-designated as a Restricted
Subsidiary if a Default or Event of Default has occurred and is
continuing or would result from such re-designation and (iii) no
Restricted Subsidiary may be re-designated as an Unrestricted
Subsidiary if a Default or Event of Default has occurred and is
continuing or would result from such re-designation; and PROVIDED
FURTHER, HOWEVER, that on or promptly after the date of its formation,
acquisition or re-designation, as applicable, each Unrestricted
Subsidiary (other than an Unrestricted Subsidiary that is a Foreign
Subsidiary) shall have entered into a tax sharing agreement containing
terms that, in the reasonable judgment of the Administrative Agent,
provide for an appropriate allocation of tax liabilities and benefits.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Revolving Credit Lender at any time, (a) such Lender's Revolving
Credit Commitment at such time MINUS (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances
and Letter of Credit Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time, PLUS (ii) such Lender's Pro Rata
Share of (A) the aggregate Available LC Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Bank pursuant to Section
2.03(c) and outstanding at such time and (C) the aggregate principal
amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(d) and outstanding at such time.
"U.S. BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"U.S. PERSON" means any Person which is organized under the
laws of a jurisdiction of the United States.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
34
"WELLS FARGO" has the meaning specified in the recital of
parties to this Agreement.
SECTION 1.02. COMPUTATION OF TIME PERIODS.02. COMPUTATION OF
TIME PERIODS. In this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS.03. ACCOUNTING TERMS. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in Section
4.01(f) ("GAAP").
SECTION 1.04. CURRENCY EQUIVALENT.04. CURRENCY EQUIVALENT. For
purposes of construction of the terms hereof, the equivalent in another currency
of an amount in U.S. dollars shall be determined by using the quoted spot rate
at which Citibank's principal office in New York City offers to purchase such
other currency with the equivalent in dollars in New York City at 9:00 A.M. (New
York City time) on the date on which such equivalent is to be determined.
ARTICLE II ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. THE ADVANCES.01. THE ADVANCES. (a) THE TERM A
ADVANCES. Each Term A Lender has made a single advance (a "TERM A ADVANCE") to
the Canadian Borrower on the Closing Date under the Original Credit Agreement in
an amount of such Lender's Term A Commitment at such time. The Term A Borrowing
consisted of Term A Advances made simultaneously by the Term A Lenders ratably
according to their Term A Commitments. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) THE TERM B ADVANCES. Each Term B Lender has made a single
advance (a "TERM B ADVANCE") to the U.S. Borrower on the Closing Date under the
Original Credit Agreement in an amount of such Lender's Term B Commitment at
such time. The Term B Borrowing consisted of Term B Advances made simultaneously
by the Term B Lenders ratably according to their Term B Commitments. Amounts
borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed.
(c) THE REVOLVING CREDIT ADVANCES. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "REVOLVING CREDIT ADVANCE") to the U.S. Borrower from time
to time on any Business Day during the period from the date of the Original
Credit Agreement until the Termination Date in an amount for each such Advance
not to exceed such Lender's Unused Revolving Credit Commitment at such time.
Each Revolving Credit Borrowing shall be in an aggregate amount of $2,000,000 or
an integral multiple of $500,000 in excess thereof (other than a Borrowing the
proceeds of which shall be used solely to repay or prepay in full outstanding
Swing Line Advances or outstanding Letter of Credit Advances) and shall consist
of
35
Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Revolving Credit Lender's Unused Revolving Credit Commitment in effect from
time to time, the U.S. Borrower may borrow under this Section 2.01(c), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) THE SWING LINE ADVANCES. The U.S. Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the U.S. Borrower from
time to time on any Business Day during the period from the date of the Original
Credit Agreement until the Termination Date in an aggregate amount not to exceed
at any time outstanding the lesser of (i) $10,000,000 (the "SWING LINE
FACILITY") and (ii) an amount not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in
an amount of $500,000 or an integral multiple of $250,000 in excess thereof and
shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the U.S.
Borrower may borrow under this Section 2.01(d), repay pursuant to Section
2.04(d) or prepay pursuant to Section 2.06(a) and reborrow under this Section
2.01(d).
(e) LETTERS OF CREDIT. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (the "LETTERS
OF CREDIT") for the account of the U.S. Borrower from time to time on any
Business Day during the period from the date of the Original Credit Agreement
until five Business Days before the Termination Date (i) in an aggregate
Available LC Amount for all Letters of Credit not to exceed at any time the
Issuing Bank's Letter of Credit Commitment at such time and (ii) in an Available
LC Amount for each such Letter of Credit not to exceed an amount equal to the
Unused Revolving Credit Commitments of the Revolving Credit Lenders at such
time. No Letter of Credit shall have an expiration date (including all rights of
the U.S. Borrower or the beneficiary to require renewal) later than the earlier
of five Business Days before the Termination Date and (A) in the case of a
Standby Letter of Credit, one year after the date of issuance thereof, but may
by its terms be renewable annually upon notice (a "NOTICE OF RENEWAL") given to
the Issuing Bank and the Administrative Agent on or prior to any date for notice
of renewal set forth in such Letter of Credit (but in any event at least three
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit) and upon fulfillment of the applicable conditions set forth in
Article III, unless such Issuing Bank has notified the U.S. Borrower (with a
copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit (but in any event at least 30
Business Days prior to the date of automatic renewal) of its election not to
renew such Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B) in the
case of a Trade Letter of Credit, the later of 180 days after the date of
issuance thereof or five Business Days before the Termination Date; PROVIDED
that the terms of each Standby Letter of Credit that is automatically renewable
annually shall (x) require the Issuing Bank that issued such Standby Letter of
Credit to give the beneficiary named in such Standby Letter of Credit notice of
any Notice of Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Standby Letter of Credit prior to the date such
Standby Letter of Credit otherwise would have been automatically renewed and (z)
not permit the expiration date (after giving effect to any renewal) of such
Standby Letter of Credit in any event to be extended to a date later than 60
days before the Termination Date. If either a Notice of Renewal is not given by
the U.S. Borrower or a Notice of Termination is given by the Issuing Bank
pursuant to the immediately preceding sentence, such Standby Letter of Credit
shall expire on the date on which it
36
otherwise would have been automatically renewed; PROVIDED, HOWEVER, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
U.S. Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the U.S. Borrower may
request the issuance of Letters of Credit under this Section 2.01(e), repay any
Letter of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(e).
(f) THE TERM C ADVANCES. Each Term C Lender severally agrees,
on the terms and conditions hereinafter set forth, to make a single advance (a
"TERM C ADVANCE") to the U.S. Borrower on any Business Day during the period
from the date hereof until April 16, 1999, in an amount not to exceed such
Lender's Term C Commitment at such time. The Term C Borrowing shall consist of
Term C Advances made simultaneously by the Term C Lenders ratably according to
their Term C Commitments. Amounts borrowed under this Section 2.01(f) and repaid
or prepaid may not be reborrowed.
SECTION 2.02. MAKING THE ADVANCES.02. MAKING THE ADVANCES. (a)
Except as otherwise provided in Section 2.02(b) or 2.03, each Borrowing shall be
made on notice, given not later than 12:00 P.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Appropriate Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier; PROVIDED, however, that the Term C Borrowing
hereunder shall consist of Base Rate Advances and shall be made on notice, given
not later than 10:00 A.M. (New York City time) on the Business Day of the
proposed Term C Borrowing, by the U.S. Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by telex or
telecopier. Each such notice of a Borrowing (a "NOTICE OF BORROWING") shall be
by telephone, confirmed immediately in writing, or telex or telecopier, in
substantially the form of Exhibit B hereto, specifying therein the requested (i)
date of such Borrowing, (ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of such
Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 12:00 P.M. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Appropriate
Borrower by crediting the applicable Borrower's Account; PROVIDED, HOWEVER,
that, in the case of any Revolving Credit Borrowing, the Administrative Agent
shall first make a portion of such funds equal to the aggregate principal amount
of any Swing Line Advances and Letter of Credit Advances made by the Swing Line
Bank or the Issuing Bank, as the case may be, and by any other Revolving Credit
Lender and outstanding on the date of such Revolving Credit Borrowing, plus
interest accrued and unpaid thereon to and as of such date, available to the
Swing Line Bank or the Issuing Bank, as the case may be, and
37
such other Revolving Credit Lenders for repayment of such Swing Line Advances
and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 1:00 P.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by the U.S. Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF
SWING LINE BORROWING") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing). The Swing Line Bank will make the amount thereof available
to the Administrative Agent at the Administrative Agent's Account, in same day
funds. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the U.S. Borrower by
crediting its Borrower's Account. Upon written demand by the Swing Line Bank,
with a copy of such demand to the Administrative Agent, each other Revolving
Credit Lender shall purchase from the Swing Line Bank, and the Swing Line Bank
shall sell and assign to each such other Revolving Credit Lender, such other
Lender's Pro Rata Share of such outstanding Swing Line Advance as of the date of
such demand, by making available for the account of its Applicable Lending
Office to the Administrative Agent for the account of the Swing Line Bank, by
deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Swing Line
Advance to be purchased by such Lender. The U.S. Borrower hereby agrees to each
such sale and assignment. Each Revolving Credit Lender agrees to purchase its
Pro Rata Share of an outstanding Swing Line Advance on (i) the Business Day on
which demand therefor is made by the Swing Line Bank, PROVIDED that notice of
such demand is given not later than 1:00 P.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by the
Swing Line Bank to any other Revolving Credit Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advance, the Loan Documents or
any Loan Party. If and to the extent that any Revolving Credit Lender shall not
have so made the amount of such Swing Line Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) neither Borrower may select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $2,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10 and (ii) the Term A Advances may not be outstanding
as part of more than 3 separate Borrowings, the Term B Advances may not be
outstanding as part of more than 3 separate
38
Borrowings, the Term C Advances may not be outstanding as part of more than 3
separate Borrowings and the Revolving Credit Advances made on any date may not
be outstanding on any date as part of more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Appropriate Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Appropriate Borrower shall indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Appropriate Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and such Borrower severally agree to repay
or pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Appropriate Borrower until the date such amount is repaid or
paid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at such time under Section 2.07 to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Advance as part of such
Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER
LETTERS OF CREDIT2.03. ISSUANCE OF AND DRAWINGS AND REIMBURSEMENT UNDER LETTERS
OF CREDIT. (a) REQUEST FOR ISSUANCE. Each Letter of Credit shall be issued upon
notice, given not later than 12:00 P.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, or such shorter period as may be agreed upon by the Issuing Bank, by the
U.S. Borrower to the Issuing Bank, which shall give to the Administrative Agent
and each Revolving Credit Lender prompt notice thereof by telex or telecopier.
Each such notice of issuance of a Letter of Credit (a "NOTICE OF ISSUANCE")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (A) date of such issuance (which shall be a
Business Day), (B) Available LC Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit,
39
(D) name and address of the beneficiary of such Letter of Credit and (E) form of
such Letter of Credit, and shall be accompanied by such application and
agreement for letter of credit as the Issuing Bank may specify to the U.S.
Borrower for use in connection with such requested Letter of Credit (a "LETTER
OF CREDIT AGREEMENT"). If (x) the requested form of such Letter of Credit is
acceptable to the Issuing Bank in its sole discretion and (y) it has not
received notice of objection to such issuance from the Administrative Agent, the
Issuing Bank will, upon fulfillment of the applicable conditions set forth in
Article III, make such Letter of Credit available to the U.S. Borrower at its
office referred to in Section 9.02 or as otherwise agreed with the U.S. Borrower
in connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) LETTER OF CREDIT REPORTS. The Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the previous week and drawings during such week under all Letters of
Credit, (B) to each Revolving Credit Lender on the first Business Day of each
month a written report summarizing issuance and expiration dates of Letters of
Credit issued during the preceding month and drawings during such month under
all Letters of Credit and (C) to the Administrative Agent and each Revolving
Credit Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available LC Amount during the
preceding calendar quarter of all Letters of Credit.
(c) DRAWING AND REIMBURSEMENT. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Revolving Credit Lender shall purchase from the Issuing Bank, and
the Issuing Bank shall sell and assign to each such Revolving Credit Lender,
such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of
the date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. The U.S.
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than 12:00 P.M. (New
York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, but makes no other representation
or warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Issuing Bank until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate for its account or
40
the account of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(d) FAILURE TO MAKE LETTER OF CREDIT ADVANCES. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. REPAYMENT OF ADVANCES.04. REPAYMENT OF ADVANCES.
(a) TERM A ADVANCES. The Canadian Borrower shall repay to the Administrative
Agent for the ratable account of the Term A Lenders the aggregate outstanding
principal amount of the Term A Advances on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.06):
Date Amount
---- ------
January 21, 1999 $600,000
January 21, 2000 $600,000
January 21, 2001 $600,000
January 21, 2002 $600,000
January 21, 2003 $600,000
January 21, 2004 $600,000
January 21, 2005 $56,400,000
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term A Advances outstanding on such date.
(b) TERM B ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
outstanding principal amount of the Term B Advances on the following dates in
the amounts indicated (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in
Section 2.06):
Date Amount
---- ------
January 21, 1999 $750,000
January 21, 2000 $750,000
January 21, 2001 $750,000
January 21, 2002 $750,000
January 21, 2003 $750,000
January 21, 2004 $750,000
January 21, 2005 $750,000
January 21, 2006 $69,750,000
41
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(c) REVOLVING CREDIT ADVANCES. The U.S. Borrower shall repay
to the Administrative Agent for the ratable account of the Revolving Credit
Lenders on the Termination Date the aggregate outstanding principal amount of
the Revolving Credit Advances then outstanding.
(d) SWING LINE ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date.
(e) LETTER OF CREDIT ADVANCES. (i) The U.S. Borrower shall
repay to the Administrative Agent for the account of the Issuing Bank and each
other Revolving Credit Lender that has made a Letter of Credit Advance on the
earlier of demand and the Termination Date the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the U.S. Borrower under this
Agreement, any Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the U.S.
Borrower in respect of any L/C Related Document or any other amendment
or waiver of or any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the U.S. Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
42
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate or other document that
does not strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty, the Subsidiaries Guaranty or
any other guarantee, for all or any of the Obligations of the U.S.
Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the U.S. Borrower or a guarantor.
(f) TERM C ADVANCES. The U.S. Borrower shall repay to the
Administrative Agent for the ratable account of the Term C Lenders the aggregate
outstanding principal amount of the Term C Advances on the following dates in
the amounts indicated (which amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in
Section 2.06):
Date Amount
---- ------
January 21, 2000 $1,000,000
January 21, 2001 $1,000,000
January 21, 2002 $1,000,000
January 21, 2003 $1,000,000
January 21, 2004 $1,000,000
January 21, 2005 $1,000,000
January 21, 2006 $47,000,000
January 21, 2007 $47,000,000
PROVIDED, HOWEVER, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term C Advances outstanding on such date.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS.05.
TERMINATION OR REDUCTION OF THE COMMITMENTS. (a) OPTIONAL. Either Borrower may,
upon at least two Business Days' notice to the Administrative Agent, terminate
in whole or reduce in part the unused portions of the Term A Commitments, the
Term B Commitments, the Term C Commitments, the Letter of Credit Facility and
the Unused Revolving Credit Commitments; PROVIDED, HOWEVER, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and (ii) shall be made ratably
among the Appropriate Lenders in accordance with their Commitments with respect
to such Facility.
(b) MANDATORY. (i) The Revolving Credit Facility shall be
automatically and permanently reduced on a pro rata basis (A) on each date on
which prepayment thereof is required to
43
be made pursuant to Section 2.06(b)(i), (ii) or (iv), in an amount equal to the
applicable Reduction Amount and (B) if on January 21, 2003 the Revolving Credit
Facility shall be greater than $100,000,000, on January 21, 2003, in an amount
such that the Revolving Credit Facility immediately after giving effect to such
reduction shall be $100,000,000, PROVIDED that each such reduction of the
Revolving Credit Facility pursuant to clauses (A) and (B) above shall be made
ratably among the Revolving Credit Lenders in accordance with their Revolving
Credit Commitments.
(ii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
SECTION 2.06. PREPAYMENTS.06. PREPAYMENTS. (a) OPTIONAL. The
Appropriate Borrower may, on same Business Day's notice in the case of Base Rate
Advances and one Business Day's notice in the case of Eurodollar Rate Advances,
in each case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Appropriate
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral multiple
of $500,000 in excess thereof and (y) if any prepayment of a Eurodollar Rate
Advance is made on a date other than the last day of an Interest Period for such
Advance such Borrower shall also pay any amounts owing pursuant to Section
9.04(c). Each such prepayment of any Term A Advances or Term B Advances shall be
applied to the installments thereof in the manner specified by the Appropriate
Borrower.
(b) MANDATORY. (i) The Borrowers shall, on the 130th day
following the end of each Fiscal Year, if the Leverage Ratio for the Measurement
Period ending on the last day of such Fiscal Year exceeds 4.00:1.00, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the remainder of (A) 50% of the amount of
Excess Cash Flow for such Fiscal Year MINUS (B) the aggregate amount of any
optional prepayments of Term Advances or, to the extent such prepayments
permanently reduced the Revolving Credit Facility, the amount of any optional
prepayments of Revolving Credit Advances, Swing Line Advances or Letter of
Credit Advances made during such Fiscal Year. Each such prepayment shall, except
as otherwise provided in Section 2.06(c) below, be applied FIRST to the Term A
Facility and/or the Term B Facility and to the installments thereof in the
manner specified by the Appropriate Borrower (but pro rata among the Term A
Lenders and/or the Term B Lenders which are not Declining Lenders), SECOND to
the Revolving Credit Facility as set forth in clause (v) below and, THIRD to the
Term C Facility and to the installments thereof in the manner specified by the
U.S. Borrower (but pro rata among the Term C Lenders).
(ii) The Borrowers shall, on the date of receipt of the Net
Cash Proceeds by any Loan Party or any of its Restricted Subsidiaries from the
sale, lease, transfer or other disposition of any assets of any Loan Party or
any of its Restricted Subsidiaries, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings equal to the amount of such Net
Cash Proceeds. Each such prepayment shall, except as otherwise provided in
Section 2.06(c) below, be applied FIRST
44
ratably to the Term A Facility and the Term B Facility and to the next two
installments thereof, SECOND ratably to the Term A Facility and the Term B
Facility and pro rata to the remaining installments thereof, THIRD to the
Revolving Credit Facility as set forth in clause (v) below, and FOURTH to the
Term C Facility and pro rata to the remaining installments thereof.
(iii) The U.S. Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the
Swing Line Advances then outstanding plus the aggregate Available LC Amount of
all Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility
on such Business Day (after giving effect to any permanent reduction thereof
pursuant to Section 2.05 on such Business Day).
(iv) In the event that a Term A Lender or a Term B Lender is a
Declining Lender pursuant to Section 2.06(c) below, the U.S. Borrower shall
prepay, in accordance with clause (v) below, an aggregate principal amount of
the Revolving Credit Advances comprising part of the same Borrowings in an
amount equal to 50% of the Declined Amount.
(v) Prepayments of the Revolving Credit Facility made pursuant
to clause (i), (ii), (iii) or (iv) of this Section 2.06(b) or pursuant to
Section 2.06(c) below shall be FIRST applied to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, SECOND applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full and
THIRD applied to prepay Revolving Credit Advances then outstanding comprising
part of the same Borrowings until such Advances are paid in full; and, in the
case of prepayments of the Revolving Credit Facility required pursuant to clause
(i), (ii) or (iv) above, the amount remaining (if any) after the prepayment in
full of the Advances then outstanding (the sum of such prepayment amounts and
remaining amount being referred to herein as the "REDUCTION AMOUNT") may be
retained by the U.S. Borrower and the Revolving Credit Facility shall be
permanently reduced as set forth in Section 2.05(b)(i).
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(vii) Notwithstanding any of the other provisions of this
Section 2.06(b), so long as no Default under Section 7.01(a) or 7.01(f) or Event
of Default shall have occurred and be continuing, if any prepayment of
Eurodollar Rate Advances is required to be made under this Section 2.06(b) other
than on the last day of the Interest Period therefor, the Borrower to which such
Eurodollar Rate Advances were made may, in its sole discretion, deposit the
amount of any such prepayment otherwise required to be made hereunder into the
Cash Collateral Account of such Borrower until the last day of such Interest
Period, at which time the Administrative Agent shall, subject to the provisions
of Section 2.06(c) below, be authorized (without any further action by or notice
to or from such Borrower) to apply such amount to the prepayment of such
Advances in accordance with Section 2.06(b).
(c) TERM OPT-OUT. Notwithstanding anything to the contrary
contained in Section 2.06(b), with respect to any prepayment of the Term A
Advances or Term B Advances required pursuant to Section 2.06(b)(i) or Section
2.06(b) (ii) above, any Term A Lender or Term B Lender, at its option, may elect
not to accept its ratable portion of such prepayment, in which event the
provisions
45
of the next sentence shall apply. Any Lender declining such prepayment (such
Lender being a "DECLINING LENDER" and the amount of such Lender's ratable
portion of such prepayment being the "DECLINED AMOUNT") shall give written
notice to the Administrative Agent by 11:00 a.m. (New York City time) on the
Business Day immediately preceding the date on which such prepayment would
otherwise be made (the "PREPAYMENT DATE"). On the Prepayment Date, 50% of the
Declined Amount shall be used to prepay outstanding Revolving Credit Advances in
accordance with Section 2.06(b)(iv) above, and the Borrowers may elect, in their
discretion to retain the remaining portion of any such Declined Amount. With
respect to any prepayment of the Term C Advances required pursuant to Section
2.06(b) (i) or (ii) above, any Term C Lender, at its option, may elect not to
accept its ratable portion of such prepayment in which event the provisions of
the next sentence shall apply. Any Term C Lender declining such prepayment (such
Lender being a "DECLINING TERM C LENDER" and the amount of such Lender's ratable
portion of such prepayment being the "DECLINED TERM C AMOUNT") shall give
written notice to the Administrative Agent by 11:00 A.M. (New York City Time) on
the Business Day immediately preceding the date on which such prepayment would
otherwise be made (the "TERM C PREPAYMENT DATE"). On the Term C Prepayment Date,
the Declined Term C Amount shall be retained by the U.S. Borrower.
SECTION 2.07. INTEREST.07. INTEREST. (a) SCHEDULED INTEREST.
Each Borrower shall pay interest on the unpaid principal amount of each Advance
owing by it to each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time PLUS (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last Business Day of each March, June, September and December during
such periods, SUBJECT, HOWEVER, to the provisions of subsection (b) of
this Section 2.07.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance PLUS (B)
the Applicable Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full, SUBJECT,
HOWEVER, to the provisions of subsection (b) of this Section 2.07.
(b) DEFAULT INTEREST. If all or a portion of (i) the principal
amount of any Advance or (ii) any interest payable thereon or fees or other
amounts payable under this Agreement shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amounts shall bear
interest, payable on demand, at a rate per annum that is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto PLUS 2%
per annum or (y) in the case of any overdue interest, fees or other amounts
payable, to the extent permitted by applicable law, the rate described in
Section 2.07(a)(i) PLUS 2% per annum, in each case, from the date of such
non-payment to the date on which such amount is paid in full (after as well as
before judgment).
46
(c) NOTICE OF INTEREST RATE. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Appropriate Borrower and each Appropriate Lender of the
applicable interest rate determined by the Administrative Agent for purposes of
clause (a)(i) or (ii), and the applicable rate, if any, furnished by each
Reference Bank for the purpose of determining the applicable interest rate under
clause (a)(ii).
(d) INTEREST RATE DETERMINATION. (i) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks.
(ii) If fewer than two Reference Banks are able to furnish
timely information to the Administrative Agent for determining the Eurodollar
Rate for any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the
Appropriate Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Appropriate Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.08. FEES.08. FEES. (a) COMMITMENT FEE. The U.S.
Borrower shall pay to the Administrative Agent for the account of each Lender
having a Revolving Credit Commitment a commitment fee, from the date hereof in
the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date, payable in arrears on the date of
the initial Borrowing hereunder, thereafter quarterly on the last Business Day
of each March, June, September and December, commencing March 31, 1998, and on
the Termination Date, at the rate per annum equal to the Applicable Percentage
of the sum of the average daily Unused Revolving Credit Commitment of such
Lender PLUS its Pro Rata Share of the average daily outstanding Swing Line
Advances during such quarter; PROVIDED, HOWEVER, that no commitment fee shall
accrue on any of the Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.
(b) LETTER OF CREDIT FEES, ETC. (i) The U.S. Borrower shall
pay to the Administrative Agent for the account of each Revolving Credit Lender
a commission, payable in arrears quarterly on the last Business Day of each
March, June, September and December, commencing March 31, 1998, and on the
earliest to occur of the full drawing expiration, termination or cancellation of
any such Letter of Credit and on the Termination Date, on such Lender's Pro Rata
Share of the average daily aggregate Available LC Amount of all Letters of
Credit outstanding from time to time at a rate per annum equal to the Applicable
Margin for Eurodollar Rate Advances then in effect LESS 0.125% per annum.
47
(ii) The U.S. Borrower shall pay to the Issuing Bank, for its
own account, (A) a fronting fee, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing March 31,
1998, and on the Termination Date, on the average daily aggregate Available LC
Amount of all Letters of Credit outstanding from time to time at the rate of
0.125% per annum and (B) such other reasonable and customary commissions,
transfer fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the U.S. Borrower and the Issuing
Bank shall agree.
(c) ADMINISTRATIVE AGENT'S FEES. The U.S. Borrower shall pay
to the Administrative Agent for its own account such fees as may from time to
time be agreed between the U.S. Borrower and the Administrative Agent.
SECTION 2.09. CONVERSION OF ADVANCES.09. CONVERSION OF
ADVANCES. (a) OPTIONAL. Either Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 12:00 P.M. (New York City time)
on the third Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.07 and 2.10, Convert all or any portion
of the Advances of one Type owed by it comprising the same Borrowing into
Advances of the other Type; PROVIDED, HOWEVER, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on such Borrower.
(b) MANDATORY. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $2,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Appropriate Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in Section
1.01, the Administrative Agent will forthwith so notify such Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Default under Section 7.01(a), (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (y) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
48
SECTION 2.10. INCREASED COSTS, ETC..10. INCREASED COSTS, ETC.
(a) In the event that, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
or administration of any applicable law or regulation after the Closing Date,
(ii) the compliance with any applicable guideline or request from any central
bank or other governmental authority (whether or not having the force of law) or
(iii) any other circumstance affecting the interbank Eurodollar market or the
position of any Lender Party in such market which leads such Lender Party to
reasonably determine that the Eurodollar Rate for any Interest Period for any
Eurodollar Rate Advance made by such Lender Party will not adequately reflect
the cost to such Lender of making, funding or maintaining such Eurodollar Rate
Advance for such Interest Period, there shall be any increase in the cost to or
reduction in the amount received or receivable by any Lender Party as a result
of agreeing to make or of making, funding or maintaining Eurodollar Rate
Advances or of agreeing to issue or of issuing or maintaining Letters of Credit
or of agreeing to make or of making or maintaining Letter of Credit Advances
(excluding for purposes of this Section 2.10 any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (B)
changes in the basis of taxation of overall net income or overall gross income
by the United States or Canada or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the U.S. Borrower shall from
time to time, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender Party additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender Party, in
its reasonable discretion, shall determine) sufficient to compensate such Lender
Party for such increased cost; PROVIDED, HOWEVER, that a Lender Party claiming
additional amounts under this Section 2.10(a) agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office for any Advances affected by
such event if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue; PROVIDED
that such designation is made on terms that such Lender Party and its Applicable
Lending Office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
this subsection (a). A certificate as to the amount of such increased cost and
showing in reasonable detail the basis for the calculation thereof, submitted to
such Borrower by such Lender Party at the time of demand, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in
or in the interpretation or administration of any applicable law or regulation
after the Closing Date or (ii) the compliance with any applicable guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the amount of capital
required or expected to be maintained by any Lender Party or any corporation
controlling such Lender Party which has or would have the effect of reducing the
rate of return on such Lender Party's capital or assets as a result of or based
upon the existence of such Lender Party's commitments and obligations under this
Agreement to a level below that which such Lender Party could have achieved but
for such change or compliance (taking into consideration such Lender Party's or
any corporation controlling such Lender Party's policies with respect to capital
adequacy), then, upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), the U.S. Borrower shall pay to the Administrative
Agent for the account of such Lender Party, from time to time as specified by
such Lender Party, additional amounts sufficient to compensate such Lender Party
in the light of such circumstances, it
49
being understood and agreed that a Lender Party shall not be entitled to such
compensation as a result of such Lender Party's compliance with, or pursuant to
any request or directive to comply with, any such law, regulation, guideline or
request in effect on the Closing Date. Any amount payable pursuant to this
Section 2.10(b) shall be payable only to the extent that such Lender Party
reasonably determines such increase in capital to be allocable to the existence
of such Lender Party's commitment to lend or to issue Letters of Credit
hereunder or to the issuance or maintenance of any Letters of Credit. A
certificate as to such amounts and showing in reasonable detail the basis for
the calculation thereof submitted to such Borrower by such Lender Party at the
time of demand shall be conclusive and binding for all purposes, absent manifest
error.
(c) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
with respect to any Eurodollar Rate Advance affected by circumstances described
in this subsection (c), such Borrower will, and with respect to any Eurodollar
Rate Advance affected by circumstances described in subsections (a) or (b)
above, such Borrower may, either (i) on the last day of the then existing
Interest Period therefor, convert each Eurodollar Rate Advance affected by such
circumstances into a Base Rate Advance or (ii) if the affected Eurodollar Rate
Advance is then being made pursuant to a Borrowing, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof on the same date that such Borrower was notified by a Lender
Party pursuant to subsection (a) or (b) above or this subsection (c) (as
applicable); PROVIDED, that if more than one Lender Party is affected at any
time, then all affected Lender Parties must be treated in the same manner
pursuant to this Section 2.10(c). In the event of an illegality as described in
clause (i) of this subsection (c) the obligation of the Appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Appropriate Borrower that such
Lender has determined that the circumstances causing such suspension no longer
exist; PROVIDED, HOWEVER, that, before making any such demand, such Lender Party
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
for any Advances affected by such event if the making of such a designation
would allow such Lender Party or its Applicable Lending Office to continue to
perform its obligations to make Eurodollar Rate Advances or to continue to fund
or maintain Eurodollar Rate Advances; PROVIDED that such designation is made on
terms that such Lender Party and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of this subsection.
(d) Anything in this Agreement to the contrary
notwithstanding, to the extent any notice under Section 2.10, 2.12 or 9.04(c) is
given by any Lender Party more than 180 days after such Lender Party has
knowledge (or should have had knowledge) of the occurrence of the event giving
rise to the additional cost, reduction in amounts, loss, tax or other additional
amounts described in such Section 2.10, 2.12 or 9.04(c), as the case may be,
such Lender Party shall not be entitled to compensation under such Section for
any such amounts incurred or accruing prior to the giving of such notice to the
Appropriate Borrower.
50
SECTION 2.11. PAYMENTS AND COMPUTATIONS.11. PAYMENTS AND
COMPUTATIONS. (a) Each Borrower shall make each payment owed by it hereunder and
under the Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in Section 2.15), not later than 12:00 P.M. (New York City
time) on the day when due (or, in the case of payments made by the U.S. Borrower
pursuant to Section 6.01, on the date of demand therefor) in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds.
The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by a Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the Notes to more than one Lender Party, to such Lender Parties for the
account of their respective Applicable Lending Offices ratably in accordance
with the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by a Borrower is in respect of any Obligation
then payable hereunder to one Lender Party, to such Lender Party for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available LC Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrowers hereby authorize each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Appropriate Borrower's accounts with such
Lender Party any amount so due.
(d) All computations of interest, fees and commissions shall
be made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable; PROVIDED that (i) interest in respect of which the rate of interest
is calculated on the basis of clause (a) of the definition of "Base Rate"
contained in Section 1.01, (ii) commitment fees payable pursuant to Section
2.08(a) and (iii) Letter of Credit fees payable pursuant to Section 2.08(b)
shall be calculated on the basis of a year of 365 (or 366, as the case may be)
days for the actual number of days elapsed; and PROVIDED FURTHER, that for
purposes of the INTEREST ACT (Canada), whenever interest hereunder is to be
calculated at a rate based upon a 360 day period (the "APPLICABLE RATE"), the
rate or percentage of interest on a yearly basis is equivalent to such
Applicable Rate multiplied by the actual number of days in the year divided by
360. Each determination by the
51
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice
from the Appropriate Borrower prior to the date on which any payment is due to
any Lender Party hereunder that such Borrower will not make such payment in
full, the Administrative Agent may assume that such Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
such Lender Party on such due date an amount equal to the amount then due such
Lender Party. If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender Party shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender Party together with interest thereon, for each day from the date such
amount is distributed to such Lender Party until the date such Lender Party
repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. TAXES.12. TAXES. (a) Any and all payments by
either Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.11, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, (i) in the case of each Lender
Party and the Administrative Agent, (A) taxes that are imposed on its overall
net income by the United States and taxes that are imposed on its overall net
income or, in the case of any Term A Lender, capital (and franchise taxes
imposed in lieu thereof) by the state, province or other jurisdiction under the
laws of which such Lender Party or the Administrative Agent (as the case may be)
is organized or any political subdivision thereof and (B) any taxes imposed on
the Administrative Agent or any Lender Party as a result of a current or former
connection between the Administrative Agent or such Lender Party, as the case
may be, and the jurisdiction imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising from
the Administrative Agent or such Lender Party having executed, delivered or
performed its obligations or received any payment under, or sought enforcement
of, this Agreement) and, (ii) (A) in the case of each Lender Party, taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state, province or other jurisdiction of such Lender Party's
Applicable Lending Office or any political subdivision thereof and (B) in the
case of each Term A Lender, taxes that are imposed on its overall capital under
the federal or provincial laws of Canada (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "TAXES")
unless such Borrower is required by law or the interpretation or administration
thereof to withhold or deduct Taxes. If either Borrower shall be required by law
or the interpretation or administration thereof by the relevant taxing authority
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (x) the sum payable shall
be increased as may be necessary so that after making all required deductions
52
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (y) such Borrower shall make such deductions and (z) such
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law; PROVIDED, however, that no
Borrower shall be required to increase any such amounts otherwise payable to a
Lender Party that is not organized under the laws of the United States or a
state thereof so long as such Lender Party fails to comply with the requirements
of subsection (e) below.
(b) In addition, each Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made by it hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be), and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto that would not have arisen but for the
Appropriate Borrower's failure to pay any Taxes or Other Taxes when due to the
appropriate taxing authority or remit to the Administrative Agent the receipts
or other documentary evidence required under subsection (d) below. This
indemnification shall be made within 30 days from the date such Lender Party or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Promptly after the date of any payment of Taxes, the
Appropriate Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
by or on behalf of such Borrower through an account or branch outside the United
States or by or on behalf of such Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in respect
thereof, such Borrower shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel reasonably
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "UNITED
STATES" and "UNITED STATES PERSON" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
U.S. Borrower (but only so long thereafter as such Lender Party remains lawfully
able to do so), provide each of the Administrative Agent and the U.S. Borrower
with two original properly completed and duly executed Internal Revenue Service
forms 1001 or 4224 or (in the case of a Lender Party that has certified in
writing to the Administrative Agent that it is not a "bank" as defined in
Section 881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender
Party delivers a form W-8, a certificate representing that such Lender Party is
53
not a "bank" for purposes of Section 881(c) of the Internal Revenue Code, is not
a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes or, in the case of a Lender
Party providing a form W-8, certifying that such Lender Party is a foreign
corporation, partnership, estate or trust. Each such Lender Party hereby agrees,
from time to time after the initial delivery by such Lender Party of such forms
or certificates, whenever a lapse in time or change in circumstances renders
such forms or certificates obsolete or inaccurate in any material respect, that
such Lender Party shall promptly (i) deliver to the U.S. Borrower and the
Administrative Agent two new original copies of Internal Revenue Service forms
1001 or 4224, or (in the case of a Lender Party that has certified in writing to
the Administrative Agent that it is not a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender Party
delivers a form W-8, a certificate representing that such Lender Party is not a
"bank" for purposes of Section 881(c) of the Internal Revenue Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of such Borrower and is not a controlled foreign
corporation related to such Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code)), as appropriate, properly completed and duly
executed by such Lender Party or (ii) notify the Administrative Agent and the
U.S. Borrower of its inability to deliver any such forms or certificates. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; PROVIDED, HOWEVER, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date of the
Original Credit Agreement (in the case of Lender Parties other than Term C
Lenders) or on the date hereof (in the case of Term C Lenders) by Internal
Revenue Service form 1001, 4224 or W-8 (or the related certificate described
above), that the Lender Party reasonably considers to be confidential, the
Lender Party shall give notice thereof to such Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) In respect of any Term A Advance made to the Canadian
Borrower by any Lender Party, such Lender Party (i) represents and warrants to
the Canadian Borrower that, in respect of any payments of interest, fees or
other amounts constituting income that would be taxable to such Term A Lender
pursuant to Part I of the INCOME TAX ACT (CANADA) made to it by the Canadian
Borrower, such Lender Party will be entitled to receive such payments free and
clear of, and without any obligation on the part of the Canadian Borrower to
make deduction for or on account of, any income or capital taxes imposed by
Canada or any political subdivision or taxing authority thereof or
54
therein, PROVIDED, that such Lender Party is a resident of Canada for purposes
of the INCOME TAX ACT (CANADA) at the time such payments are made; and (ii)
agrees that if such Lender Party is not a resident of Canada at the time such
payments are made that the Canadian Borrower may withhold and remit Taxes
pursuant to subsection (a) (and (c), if applicable) and that such Lender Party
shall not be entitled to indemnification under subsection (a) or (c) with
respect to Taxes or Other Taxes imposed by Canada or any political subdivision
or taxing authority thereof or therein that arise by virtue of such Lender Party
being a non-resident of Canada for purposes of the INCOME TAX ACT (CANADA); and
(iii) covenants and agrees to promptly advise the U.S. Borrower if such Lender
Party changes its residency for purposes of the INCOME TAX ACT (CANADA) and to
cooperate with the Canadian Borrower to provide, at either Borrower's reasonable
request, information necessary to determine the amount of withholding or
deduction that may be required.
(g) For any period with respect to which either (i) a Lender
Party has failed to provide the U.S. Borrower with the appropriate form
described in subsection (e) above (OTHER THAN if such failure is due to a change
in law occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under subsection (e) above)
or (ii) any representation or certification made by a Lender Party pursuant to
subsection (e) or (f) above is incorrect in any material respect at the time a
payment hereunder is made (other than by reason of any change in treaty, law or
regulation having effect after the date of such representation or certification
when made), such Lender Party shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States or
Canada by reason of such failure or incorrectness, as the case may be; PROVIDED,
HOWEVER, that should a Lender Party become subject to Taxes because of its
failure to deliver a form required hereunder, such Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(h) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office or designate a different
Applicable Lending Office if the making of such a change or designation would
avoid the need for, or reduce the amount of, any such additional amounts that
may thereafter accrue, PROVIDED, that such change or designation is made on
terms that such Lender Party and its Applicable Lending Office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of subsection (a) or (c)
above.
(i) If the U.S. Borrower determines in good faith that a
reasonable basis exists for contesting any taxes for which indemnification has
been demanded hereunder, the relevant Lender Party or the Administrative Agent,
as applicable, shall cooperate with the U.S. Borrower in challenging such taxes
at the U.S. Borrower's expense if so requested by the U.S. Borrower. If any
Lender Party or the Administrative Agent, as applicable, receives a refund of a
tax for which a payment has been made by the U.S. Borrower pursuant to this
Section, which refund in the good faith judgment of such Lender Party or
Administrative Agent, as the case may be, is attributable to such payment made
by the U.S. Borrower, then the Lender Party or the Administrative Agent, as the
case may be, shall reimburse the U.S. Borrower for such amount as the Lender
Party or the Administrative Agent, as the case may be, determines to be the
proportion of the refund as will leave it, after such reimbursement, in no
better or worse position than it would have been in if the payment had not been
required. If a Lender Party or the Administrative Agent is required to return
all or a portion of any refund for which
55
reimbursement was made under the preceding sentence to the authority that
granted such refund, the U.S. Borrower shall pay over to such Lender Party or
the Administrative Agent, as the case may be, the portion of such reimbursement
as will leave such Lender Party or the Administrative Agent, as the case may be,
in no better or worse position than if no such reimbursement had been made. A
Lender Party or the Administrative Agent shall claim any refund that it
determines in good faith is available to it, unless it concludes in its
reasonable discretion that it would be adversely affected by making such a
claim; PROVIDED, HOWEVER, that each Lender Party and the Administrative Agent
shall be fully justified in refusing to claim any such refund, unless, if it so
requests, it shall first be indemnified to its satisfaction against any expense
that may be incurred by it in connection therewith. Nothing herein contained
shall interfere with the right of a Lender or the Administrative Agent to
arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender
or the Administrative Agent to disclose any information relating to its tax
affairs or any computations in respect thereof or require any Lender or the
Administrative Agent to do anything that would prejudice its ability to benefit
from any other reliefs, remissions or repayments to which it may be entitled.
(j) Each Lender Party represents and agrees that, on the date
hereof and at all times during the term of this Agreement, it is not and will
not be a conduit entity participating in a conduit financing arrangement (as
defined United States Treasury regulations Section 881-3) with respect to the
Borrowings hereunder (other than a conduit financing arrangement in which the
Appropriate Borrower, or an Affiliate thereof, is a financing entity) unless the
Appropriate Borrower has consented to such arrangement prior thereto.
SECTION 2.13. SHARING OF PAYMENTS, ETC..13. SHARING OF
PAYMENTS, ETC. If any Lender Party shall obtain at any time any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) (a) on account of Obligations due and payable to such Lender Party
hereunder and under the Loan Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Loan
Documents at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Loan Documents at such
time obtained by all the Lender Parties at such time or (b) on account of
Obligations owing (but not due and payable) to such Lender Party hereunder and
under the Loan Documents at such time in excess of its ratable share (according
to the proportion of (i) the amount of such Obligations owing to such Lender
Party at such time to (ii) the aggregate amount of the Obligations owing (but
not due and payable) to all Lender Parties hereunder and under the Loan
Documents at such time) of payments on account of the Obligations owing (but not
due and payable) to all Lender Parties hereunder and under the Loan Documents at
such time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such participations in
the Obligations due and payable or owing to them, as the case may be, as shall
be necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to
56
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. Each Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.14. USE OF PROCEEDS.14. USE OF PROCEEDS. The
proceeds (i) of the Advances (other than the Term C Advances) and issuances of
Letters of Credit shall be available (and each Borrower agrees that it shall use
such proceeds and Letters of Credit), directly or indirectly, solely to finance
a portion of the cash consideration paid in connection with the Acquisition and
to pay transaction fees and expenses associated therewith, and (ii) of the Term
C Advances shall be available (and each Borrower agrees that it shall use such
proceeds), directly or indirectly, solely to refinance debt incurred by the U.S.
Borrower for the purposes of consummating the AKW Acquisition and paying
transaction fees and expenses associated therewith and to prepay in part the
Revolving Credit Advances outstanding under the Original Credit Agreement, and,
in each case, to provide working capital for the U.S. Borrower and its
Subsidiaries and for other general corporate purposes.
SECTION 2.15. DEFAULTING LENDERS.15. DEFAULTING LENDERS. (a)
In the event that, at any one time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to either
Borrower and (iii) such Borrower shall be required to make any payment hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then such Borrower may, so long as no Default shall occur or be
continuing at such time and to the fullest extent permitted by applicable law,
set off and otherwise apply the Obligation of such Borrower to make such payment
to or for the account of such Defaulting Lender against the obligation of such
Defaulting Lender to make such Defaulted Advance. In the event that, on any
date, such Borrower shall so set off and otherwise apply its obligation to make
any such payment against the obligation of such Defaulting Lender to make any
such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by such Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such Advance
shall be a Base Rate Advance and shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be Eurodollar
Rate Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). Each Borrower shall notify the Administrative Agent at any time
such Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by either Borrower to or for the account of such Defaulting Lender
which is paid by such Borrower, after giving effect to the amount set off and
otherwise applied by such Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
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(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and (iii)
the Appropriate Borrower shall make any payment hereunder or under any other
Loan Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of such
other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by such Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Lender Parties,
ratably in accordance with the respective portions of such Defaulted Amounts
payable at such time to the Administrative Agent and such other Lender Parties
and, if the amount of such payment made by such Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Lender Parties, in the following order of
priority:
(i) FIRST, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) SECOND, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) either Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then such Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with Citibank, in the name
and under the control of the Administrative Agent, but subject to the provisions
of this subsection (c). The terms applicable to such account, including the rate
of interest payable with respect to the credit balance of such account from time
to time, shall be Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by
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such Defaulting Lender and to pay any amount payable by such Defaulting Lender
hereunder and under the other Loan Documents to the Administrative Agent or any
other Lender Party, as and when such Advances or amounts are required to be made
or paid and, if the amount so held in escrow shall at any time be insufficient
to make and pay all such Advances and amounts required to be made or paid at
such time, in the following order of priority:
(i) FIRST, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) SECOND, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) THIRD, to such Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that either
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that the Administrative Agent or any Lender Party may have against
such Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO THE INITIAL 3.01.
CONDITIONS PRECEDENT TO THE INITIAL EXTENSION OF CREDIT. The obligation of each
Lender to have made an Advance on the occasion of the Initial Extension of
Credit hereunder was subject to the satisfaction of the following conditions
precedent before or concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in accordance
with the terms of the Stock Purchase Agreement without any waiver or
amendment thereto (unless such amendment or waiver in the reasonable
judgment of the Administrative Agent is not adverse in any material
respect to the interests of the Lender Parties), and in compliance with
all applicable laws.
(b) The U.S. Borrower (i) shall have received not less than
$108,000,000 in cash for the purchase of common equity by the Investor
Group, representing approximately 90% of
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the outstanding common equity, and (ii) shall have received
approximately $200,000,000 in gross cash proceeds from the sale of the
Subordinated Notes.
(c) The Administrative Agent shall be reasonably satisfied
with the corporate and legal structure and capitalization of each Loan
Party, including the terms and conditions of the charter, bylaws and
each class of capital stock of each Loan Party and of each agreement or
instrument relating to such structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied
that all Debt of the U.S. Borrower and its Restricted Subsidiaries
outstanding immediately before giving effect to the Acquisition, other
than the Debt identified on Schedule 3.01(d), has been prepaid,
redeemed or defeased in full or otherwise satisfied and extinguished
and that all such Debt on Schedule 3.01(d) shall be on terms and
conditions reasonably satisfactory to the Administrative Agent.
(e) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred
no material adverse change in the business, financial condition,
operations, assets, liabilities or prospects of any Loan Party or any
of its Subsidiaries since June 30, 1997.
(f) There shall have occurred no material adverse change in
loan syndication, financial or capital market conditions generally that
has impaired or could reasonably be expected to impair syndication of
the Facilities.
(g) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would reasonably be likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of the Acquisition, this Agreement, any
Note, any other Loan Document, any Related Document or the consummation
of the transactions contemplated hereby.
(h) Nothing shall have come to the attention of the Lender
Parties to lead them to believe (i) that the Information Memorandum was
or has become misleading, incorrect or incomplete in any material
respect, (ii) that, following the consummation of the Acquisition,
either Borrower or its Subsidiaries would not have good and marketable
title to all material assets of such Borrower and such Subsidiaries
reflected in the Information Memorandum and (iii) that the Acquisition
will have a Material Adverse Effect; without limiting the generality of
the foregoing, the Lender Parties shall have been given such access to
the management, records, books of account, contracts and properties of
the Borrowers and their respective Restricted Subsidiaries as they
shall have reasonably requested.
(i) All governmental and third party consents and approvals
necessary in connection with the Acquisition, the Loan Documents and
the Related Documents and the transactions contemplated thereby shall
have been obtained (without the imposition of any conditions that are
not reasonably acceptable to the Administrative Agent) and shall remain
in effect; all applicable waiting periods shall have expired without
any action being taken by any competent authority; and no law or
regulation shall be applicable in the reasonable judgment of
60
the Administrative Agent that restrains, prevents or imposes materially
adverse conditions upon the Acquisition, the Loan Documents and the
Related Documents and the transactions contemplated thereby.
(j) The Administrative Agent shall have received the fees
referred to in Section 2.08(c) to be received on the Closing Date and
under a separate letter agreement dated December 2, 1997 between the
U.S. Borrower and the Administrative Agent.
(k) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance reasonably
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes (other than the Term C Notes) payable
to the order of the Lenders (other than the Term C Lenders).
(ii) Certified copies of the resolutions of the Board
of Directors of each Borrower and each other Loan Party
approving each Loan Document and Related Document to which it
is or is to be a party and the transactions contemplated
thereby, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to the
Acquisition, this Agreement, the Notes, each other Loan
Document and each Related Document.
(iii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, or in the case
of the Canadian Borrower, the Ministry of Consumer and
Commercial Relations of the Province of Ontario, dated
reasonably near the date of the Initial Extension of Credit,
listing the charter of each Borrower and each other Loan Party
and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to
such Borrower's or such other Loan Party's charter on file in
his office, (B) each such Borrower and each such other Loan
Party have paid all franchise taxes to the date of such
certificate and (C) each Borrower and each other Loan Party
are duly incorporated and in good standing under the laws of
the State or Province of the jurisdiction of its
incorporation.
(iv) A certificate of each Borrower and each other
Loan Party, signed on behalf of such Borrower and such other
Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the date of the
Initial Extension of Credit (the statements made in which
certificate shall be true on and as of the date of the Initial
Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of such Borrower or such other Loan
Party since the date of the certificate referred to in Section
3.01(k)(iii), (B) a true and correct copy of the bylaws of
such Borrower and such other Loan Party as in effect on the
date of the Initial Extension of Credit, (C) the absence of
any proceeding for the dissolution or liquidation of such
Borrower or such other Loan Party, (D) the truth and accuracy
of the representations and warranties contained in the Loan
Documents in all material respects as though made on and as of
the date of the Initial Extension of Credit, (E) the absence
of any
61
event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default, and (F) in
the case of the U.S. Borrower only, the completion of the
restructuring contemplated by the memorandum attached hereto
as Schedule 3.01(l).
(v) A certificate of the Secretary or an Assistant
Secretary of each Borrower and each other Loan Party
certifying the names and true signatures of the officers of
such Borrower and such other Loan Party authorized to sign
this Agreement, the Notes, each other Loan Document and each
Related Document to which they are or are to be parties and
the other documents to be delivered hereunder and thereunder.
(vi) A pledge agreement in substantially the form of
Exhibit D to the Original Credit Agreement duly executed by
the U.S. Borrower and the Canadian Borrower, together with:
(A) certificates representing 100% of the
issued and outstanding stock (or other ownership or
profit interest) owned by the U.S. Borrower of all of
its first-tier Subsidiaries (other than Unrestricted
Subsidiaries), accompanied by undated stock powers
executed in blank; PROVIDED that no more than 66% of
the issued and outstanding stock of any first-tier
Foreign Subsidiaries of the U.S. Borrower (other than
Unrestricted Subsidiaries and the Canadian Borrower)
shall be required to be pledged,
(B) copies of proper financing statements,
to be duly filed on or before the day of the Initial
Extension of Credit under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent
may deem necessary or desirable in order to perfect
and protect the first priority liens and security
interests created under such pledge agreement,
covering the Collateral described in the Pledge
Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all other effective financing
statements filed in the jurisdictions referred to in
clause (B) above that name the U.S. Borrower or any
other Loan Party as debtor, together with copies of
such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to such
pledge agreement that the Administrative Agent may
reasonably deem necessary or desirable in order to
perfect and protect the Liens created thereby, and
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
such pledge agreement has been taken.
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(vii) A guaranty in substantially the form of Exhibit
E hereto (together with each other guaranty or Subsidiaries
Guaranty Supplement required to be delivered pursuant to
Section 5.01(k) or Section 3.04, in each case as amended,
supplemented or otherwise modified from time to time in
accordance with its terms, the "SUBSIDIARIES GUARANTY"), duly
executed by each of the Subsidiary Guarantors.
(viii) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith.
(ix) Such financial, business and other information
regarding each Loan Party as the Lender Parties shall have
reasonably requested, including, without limitation, (A)
audited Consolidated financial statements of the U.S. Borrower
and its Consolidated Subsidiaries for Fiscal Years 1995 and
1996, (B) unaudited Consolidated financial statements of the
U.S. Borrower and its consolidated Subsidiaries for each
Fiscal Quarter in Fiscal Year 1997 that ended more than 45
days prior to the initial Closing Date, (C) a Consolidated pro
forma balance sheet of the U.S. Borrower and its Consolidated
Subsidiaries as of the Closing Date after giving effect to the
Acquisition and other transactions and financings contemplated
by the Related Documents and the Loan Documents, and (D)
Consolidated forecasted financial statements of the U.S.
Borrower and its Consolidated Subsidiaries for the five-year
period after the Closing Date, all of the foregoing
(including, without limitation, the statements to be delivered
pursuant to clauses (A) through (D) above) to be in form and
substance reasonably satisfactory to the Administrative Agent.
(x) Letters and certificates, in substantially the
form of Exhibit H and I hereto, respectively, attesting to the
Solvency of each of the Borrowers after giving effect to the
Acquisition and the other transactions contemplated hereby,
from its chief financial officer or, in the case of the
Canadian Borrower, its assistant treasurer, and a nationally
recognized appraisal firm, valuation consultant or investment
banking firm satisfactory to the Administrative Agent.
(xi) A favorable opinion of Latham and Watkins, U.S.
counsel for the Borrowers, in substantially the form of
Exhibit F to the Original Credit Agreement and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xii) A favorable opinion of Osler, Hoskin &
Harcourt, Canadian counsel for the Canadian Borrower, in
substantially the form of Exhibit G to the Original Credit
Agreement and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xiii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
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(l) On or prior to the Closing Date the U.S. Borrower shall
have completed the restructuring contemplated by the memorandum
attached hereto as Schedule 3.01(l).
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING AND
ISSUANCE.02. CONDITIONS PRECEDENT TO EACH BORROWING AND ISSUANCE. The obligation
of each Appropriate Lender to make an Advance (other than a Letter of Credit
Advance made by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(c) and a Swing Line Advance made by a Revolving Credit Lender
pursuant to Section 2.02(b)) on the occasion of each Borrowing (including the
Initial Extension of Credit), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance) or renew a Letter of Credit
and the right of the U.S. Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that on the date of such Borrowing
or issuance or renewal (a) the following statements shall be true in all
material respects (and each of the giving of the applicable Notice of Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or Notice of Renewal and the
acceptance by the Appropriate Borrower of the proceeds of such Borrowing or of
such Letter of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by such Borrower that both on the date of such
notice and on the date of such Borrowing or issuance or renewal such statements
are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing or issuance or renewal
and to the application of the proceeds therefrom, as though made on and
as of such date, other than any such representations or warranties
that, by their terms, refer to a specific date other than the date of
such Borrowing or issuance or renewal, in which case, as of such
specific date; and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default.
SECTION 3.03. DETERMINATIONS UNDER SECTIONS 3.01, 3.04 AND
3.05.03. DETERMINATIONS UNDER SECTIONS 3.01, 3.04 AND 3.05. For purposes of
determining compliance with the conditions specified in Sections 3.01, 3.04 and
3.05, each Lender Party shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lender Parties unless an officer of the Administrative Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender Party prior to the Initial Extension of Credit or making of the
Term C Advances, as the case may be, specifying its objection thereto and, if
the Initial Extension of Credit consists of a Borrowing and, in the case of the
Term C Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
SECTION 3.04. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF
THIS AGREEMENT3.04. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall become effective on and as of the date hereof when the
following conditions precedent shall have been satisfied:
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(a) The Administrative Agent shall have received (i)
counterparts of this Agreement executed by each Borrower, the
Administrative Agent, the Majority Lenders (as defined in the Original
Credit Agreement), and the Term C Lenders or, as to any of such
Majority Lenders or Term C Lenders, notice from such Lender that such
Lender has executed a counterpart of this Agreement and (ii)
counterparts of the Consent executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received the
following, each dated the date hereof (unless otherwise specified), in
form and substance reasonably satisfactory to the Administrative Agent
(unless otherwise specified) and (except for the Term C Notes) in
sufficient copies for each Lender Party:
(i) The Term C Notes payable to the order of the Term
C Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors (or Persons performing similar functions) of each
Borrower, AKW LLC and AKW LP and each other Loan Party
approving this Agreement and each other Loan Document or
Related Document to be delivered by it under this Section 3.04
and the transactions contemplated thereby, and of all
documents evidencing other necessary corporate, limited
liability company, or partnership (as the case may be) action
and governmental and other third party approvals and consents,
if any, with respect to the AKW Acquisition, this Agreement,
and such other Loan Document or Related Document.
(iii) A certified copy of the AKW LLC Agreement and
the Certificate of Formation of AKW LLC.
(iv) A certified copy of the AKW LP Agreement and the
Certificate of Limited Partnership of AKW LP.
(v) A copy of a certificate of the Secretary of the
State of Delaware, dated reasonably near the date hereof,
listing the constitutive documents of each of AKW LLC and AKW
LP and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to
such documents on file in his office, and (B) each of AKW LLC
and AKW LP is duly formed and in good standing under the laws
of the State of Delaware.
(vi) A certificate of each Borrower, each of AKW LLC
and AKW LP and each other Loan Party, signed on behalf of such
Borrower, each of AKW LLC and AKW LP and such other Loan Party
by its President or a Vice President and its Secretary or any
Assistant Secretary or by its managing member in the case of
AKW LLC or by a duly authorized officer in the case of AKW LP,
dated the date hereof (the statements made in which
certificate shall be true on and as of the date hereof),
certifying as to (A) the absence of any amendments to the
constitutive documents of such Borrower, AKW LLC, AKW LP or
such other Loan Party since the date of the certificate
referred to in Section 3.01(k)(iii) or Section 3.04(b)(v), as
applicable, (B) if such Loan Party is a corporation, the
absence of any amendments to the bylaws of such
65
Borrower and such other Loan Party since the date of the
certificate referred to in Section 3.01(k)(iv), (C) the
absence of any proceeding for the dissolution or liquidation
of such Borrower, AKW LLC, AKW LP or such other Loan Party,
(D) the truth and accuracy of the representations and
warranties contained in the Loan Documents in all material
respects as though made on and as of the date hereof, and (E)
the absence of any event occurring and continuing, or
resulting from the Term C Advances made on the date hereof,
that constitutes a Default.
(vii) A certificate of the Secretary, Assistant
Secretary managing member or duly authorized officer of each
Borrower, AKW LLC and AKW LP and each other Loan Party
certifying the names and true signatures of the officers of
such Borrower, AKW LLC and AKW LP and such other Loan Party
authorized to sign this Agreement, the Term C Notes, the
Pledge Agreement, the Consent and each other Loan Document to
which such Loan Party is, or is to be, a party and each other
document to be delivered by it under this Section 3.04.
(viii) An amended and restated pledge agreement duly
executed by each of the Borrowers and Accuride Ventures
substantially in the form of Exhibit D hereto (together with
each other pledge agreement or Pledge Agreement Supplement
delivered pursuant to Section 5.01(k), in each case as
amended, supplemented or otherwise modified from time to time
in accordance with its terms, the "PLEDGE AGREEMENT"),
together with:
(A) Assignments in blank of the 50% limited
liability company membership interest of the U.S.
Borrower in AKW LLC, the 49% limited partnership
interest of the U.S. Borrower in AKW LP, the 50%
limited liability company membership interest of
Accuride Ventures in AKW LLC and the 49% limited
partnership interest of Accuride Ventures in AKW LP,
in each case, pledged under the Pledge Agreement,
(B) copies of proper financing statements,
to be duly filed under the Uniform Commercial Code of
all jurisdictions that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the first priority security interest with
respect to the Collateral described in subclause (A)
above,
(C) completed requests for information,
dated on or before the date hereof, listing all other
effective financing statements filed in the
jurisdictions referred to in clause (B) above that
name the U.S. Borrower as debtor, together with
copies of such other financing statements, and
(D) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first
priority security interest created under the Pledge
Agreement has been taken.
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(ix) A Subsidiaries Guaranty Supplement duly executed
by each of AKW LLC and AKW LP.
(x) Certified copies of the AKW Acquisition
Agreement, duly executed by the parties thereto, together with
all agreements, instruments and other documents delivered in
connection therewith.
(xi) A favorable opinion of Latham and Watkins, U.S.
counsel for the Borrowers, in substantially the form of
Exhibit F hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xii) A favorable opinion of David K. Armstrong,
General Counsel of the U.S. Borrower, in substantially the
form of Exhibit G and as to such other matters as any Lender
Party through the Administrative Agent may reasonably request.
(xiii) A favorable opinion of Kahn, Dees, Donovan &
Kahn, Kentucky counsel for the U.S. Borrower and Accuride
Ventures, in substantially the form of Exhibit J and as to
such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiv) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.05. CONDITIONS PRECEDENT TO THE TERM C ADVANCES. The
obligation of each Term C Lender to make a Term C Advance is subject to the
satisfaction of the following conditions precedent before, or concurrently with,
the making of such Term C Advance:
(a) This Agreement shall have become effective pursuant to
Section 3.04.
(b) The conditions set forth in Section 3.02 shall have been
satisfied.
(c) The Administrative Agent shall be reasonably satisfied
with the corporate and legal structure and capitalization of AKW LLC
and AKW LP, including the terms and conditions of the AKW LLC Company
Agreement, the AKW LP Limited Partnership Agreement and the other
constitutive documents of AKW LLC and AKW LP and with each class of
membership interest and limited partnership interest of such Loan
Parties AKW and of each agreement or instrument relating to such
structure or capitalization.
(d) The Administrative Agent shall be reasonably satisfied
that all Existing Debt, other than the Debt identified on Schedule
3.05(d) (the "SURVIVING DEBT"), has been prepaid, redeemed or defeased
in full or otherwise satisfied and extinguished and that all such
Surviving Debt shall be on terms and conditions reasonably satisfactory
to the Administrative Agent.
(e) Nothing shall have come to the attention of the Term C
Lenders to lead them to believe (i) that the AKW Information Memorandum
was or has become misleading, incorrect or incomplete in any material
respect, (ii) that the U.S. Borrower or any of its Subsidiaries
67
does not have good and marketable title to all material assets of such
Borrower and such Subsidiaries reflected in the AKW Information
Memorandum and (iii) that the AKW Acquisition has had or will have a
Material Adverse Effect.
(f) All governmental and third party consents and approvals
necessary in connection with the AKW Acquisition, the Term C Facility
and the transactions contemplated thereby shall have been obtained
(without the imposition of any conditions that are not reasonably
acceptable to the Administrative Agent) and shall remain in effect; all
applicable waiting periods shall have expired without any action being
taken by any competent authority; and no law or regulation shall be
applicable in the reasonable judgment of the Administrative Agent that
restrains, prevents or imposes materially adverse conditions upon the
AKW Acquisition, the Term C Facility and the transactions contemplated
thereby.
(g) The Administrative Agent shall have received the
certificate required pursuant to Section 5.03(g) with respect to the
AKW Acquisition.
(h) The Administrative Agent shall have received the fees
referred to in Section 2.08(c) to be received on the date hereof and
under a separate letter agreement dated as of April 16, 1999 among the
U.S. Borrower, the Administrative Agent and the Arranger.
ARTICLE IV ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF EACH
BORROWER.01. REPRESENTATIONS AND WARRANTIES OF EACH BORROWER. Each Borrower
represents and warrants as follows:
(a) LOAN PARTIES - DUE ORGANIZATION AND FORMATION; GOOD
STANDING; CORPORATE, COMPANY AND PARTNERSHIP POWER AND AUTHORITY;
CAPITAL STOCK. Each Loan Party (other than AKW LLC and AKW LP) (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed,
except where the failure to be so qualified or in good standing has not
had or would not reasonably be likely to have a Material Adverse Effect
and (iii) has all requisite corporate power and authority (including,
without limitation, all material governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of the U.S. Borrower has been
validly issued, is fully paid and non-assessable and is owned by the
Investor Group in the amounts specified on Schedule 4.01(a) free and
clear of all Liens. AKW LLC (i) is a limited liability company duly
formed, validly existing and in good standing under the laws of the
State of Delaware, (ii) is duly qualified and in good standing in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed,
except where the failure to be so qualified or in good standing has not
had or would not reasonably be likely to have a Material Adverse Effect
and (iii) has all requisite limited
68
liability company power and authority (including, without limitation,
all material governmental licenses, permits and other approvals) to own
or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. AKW LP (i) is a limited
partnership duly formed, validly existing and in good standing under
the laws of the State of Delaware, (ii) is duly qualified and in good
standing in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed, except where the failure to be so qualified or in good
standing has not had or would not reasonably be likely to have a
Material Adverse Effect and (iii) has all requisite partnership power
and authority (including, without limitation, all material governmental
licenses, permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted.
(b) LOAN PARTIES' SUBSIDIARIES - DUE ORGANIZATION AND
FORMATION; GOOD STANDING; CORPORATE, LIMITED LIABILITY COMPANY OR
PARTNERSHIP AUTHORIZATION AND AUTHORITY; CAPITAL STOCK, MEMBERSHIP
INTERESTS, LIMITED PARTNERSHIP INTERESTS. Set forth on Schedule 4.01(b)
hereto is a complete and accurate list of all Subsidiaries of each Loan
Party as of the date of such schedule, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation or
formation, the number of limited liability company membership interests
or limited partnership interests or shares of each class of capital
stock authorized, and the number outstanding, on the date hereof and
the percentage of the outstanding limited liability company membership
interests, limited partnership interests and shares of each such class
owned (directly or indirectly) by such Loan Party and the number of
limited liability company membership interests, limited partnership
interests or shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the date hereof.
All of the outstanding capital stock, limited liability company
membership interests and limited partnership interests of all of such
Subsidiaries have been validly issued, are fully paid and
non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under
the Loan Documents. Each such Subsidiary (i) is a corporation, limited
liability company or limited partnership (as applicable) duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, (ii) is duly qualified
and in good standing as a foreign corporation or other entity in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed,
except where the failure to be so qualified or in good standing has not
had or would not reasonably be likely to have a Material Adverse Effect
and (iii) has all requisite corporate, limited liability company or
partnership (as applicable) power and authority (including, without
limitation, all governmental licenses, permits and other approvals) to
own or lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted.
(c) DUE AUTHORIZATION OF LOAN DOCUMENTS; NON-CONTRAVENTION,
ETC. The execution, delivery and performance of each Loan Document and
each Related Document have been duly authorized by all necessary
corporate, limited liability company or partnership (as applicable)
action on the part of each Loan Party that is a party thereto, and do
not (i) contravene such Loan Party's charter or bylaws, partnership
agreement or limited liability company agreement, as the case may be,
or any of its other constitutive documents, (ii) violate any applicable
provision of any material law (including, without limitation, the
Securities
69
Exchange Act of 1934 and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award applicable to such
Borrower or to its Subsidiaries, (iii) result in the breach of, or
constitute a default under, any loan agreement, indenture, mortgage,
deed of trust or other financial instrument, or any material contract
or agreement, binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries.
(d) GOVERNMENTAL AND THIRD PARTY APPROVALS. Other than those
that have already been obtained and as set forth in Schedule 4.01(d)
and are in full force and effect, or as would not reasonably be
expected to have a Material Adverse Effect, no authorization or
approval (including, in the case of the Canadian Borrower, exchange
control approval) or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party
is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Loan Document or any Related
Document to which it is or is to be a party and (ii) the consummation
of the transactions contemplated by the Loan Documents and the Related
Documents.
(e) DUE EXECUTION AND DELIVERY; BINDING OBLIGATION. Each of
the Loan Documents has been duly executed and delivered by each Loan
Party party thereto and is the legal, valid and binding obligation of
each Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditor's rights generally or by general principles of equity.
(f) HISTORICAL FINANCIAL STATEMENTS. The Consolidated balance
sheet of each of such Borrower and its respective Subsidiaries as at
December 31, 1998, and the related Consolidated statements of income
and cash flow of such Borrower and its Subsidiaries for the fiscal year
then ended, accompanied by an opinion of Deloitte & Touche LLP,
independent public accountants, copies of which have been furnished to
each Lender Party, fairly present in all material respects the
Consolidated financial condition of such Borrower and its respective
Subsidiaries as at such dates and the Consolidated results of the
operations of such Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis (unless otherwise expressly
noted therein), and since December 31, 1998, there has been no Material
Adverse Change other than as a result of the AKW Acquisition and the
transactions contemplated hereby.
(g) PRO FORMA FINANCIAL STATEMENTS. The Consolidated pro forma
balance sheet of such Borrower and its Subsidiaries as at December 31,
1998, and the related Consolidated pro forma statement of income and
cash flow of such Borrower and its Subsidiaries for the fiscal year
then ended, certified by the chief financial officer of such Borrower,
copies of which have been furnished to each Lender Party, fairly
present in all material respects the Consolidated pro forma financial
condition of such Borrowers and its Subsidiaries as at such
70
date and the Consolidated pro forma results of operations of such
Borrower and its Subsidiaries for the fiscal year ended on such date,
in each case giving effect to the AKW Acquisition and the other
transactions contemplated hereby.
(h) FORECASTS. The Consolidated forecasted balance sheets,
income statements and cash flows statements of the U.S. Borrower and
its Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(k)(ix) or 5.03 were prepared in good faith on the basis of the
estimates and assumptions stated therein, which estimates and
assumptions were believed to be reasonable and fair in the light of
conditions existing at the time made, it being understood by the Lender
Parties that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results.
(i) OTHER INFORMATION. Neither the Information Memorandum nor
the AKW Information Memorandum nor any other information, exhibit or
report furnished by any Loan Party to the Administrative Agent or any
Lender Party in writing in connection with the negotiation of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made herein and therein, taken as a
whole, not misleading at such time in light of the circumstances in
which the same were made, it being understood that for purposes of this
Section 4.01(i), such factual information does not include projections
and pro forma financial information.
(j) LITIGATION, ETC. There is no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or, to the
knowledge of either Borrower, threatened before any court, governmental
agency or arbitrator that (i) could reasonably be expected to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of the Acquisition, the AKW Acquisition,
this Agreement, any Note, any other Loan Document or any Related
Document or the consummation of the transactions contemplated hereby.
(k) COMPLIANCE WITH MARGIN REGULATIONS. (i) Such Borrower is
not engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock, and no proceeds of any Advance or
drawings under any Letter of Credit will be used to purchase or carry
any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(ii) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the
value of the assets (either of either Borrower only or of either
Borrower and its Subsidiaries on a Consolidated basis) subject to the
provisions of Section 5.02(a) or 5.02(d) or subject to any restriction
contained in any agreement or instrument between either Borrower and
any Lender Party or any Affiliate of any Lender Party relating to Debt
and within the scope of Section 7.01(e) will be Margin Stock.
(l) EMPLOYEE BENEFIT PLANS AND ERISA RELATED MATTERS. (i) Each
Plan is in compliance with ERISA, the Internal Revenue Code and any
applicable Requirement of Law;
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no Reportable Event has occurred (or is reasonably likely to occur)
with respect to any Plan; no Plan is insolvent or in reorganization (or
is reasonably likely to be insolvent or in reorganization), and no
written notice of any such insolvency or reorganization has been given
to the Borrower, any Subsidiary or any ERISA Affiliate; no Plan (other
than a multiemployer plan ) has an accumulated or waived funding
deficiency (or is reasonably likely to have such a deficiency); neither
any Loan Party nor any ERISA Affiliate has incurred (or is reasonably
expected to incur) any liability to or on account of a Plan pursuant to
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204
of ERISA or Section 4971 or 4975 of the Internal Revenue Code or has
been notified in writing that it will incur any liability under any of
the foregoing Sections with respect to any Plan; no proceedings have
been instituted (or are reasonably likely to be instituted) to
terminate or to reorganize any Plan or to appoint a trustee to
administer any Plan, and no written notice of any such proceedings has
been given to any Loan Party or any ERISA Affiliate; and no lien
imposed under the Internal Revenue Code or ERISA on the assets of any
Loan Party or any ERISA Affiliate exists on account of any Plan (or is
reasonably likely to exist) nor has any Loan Party or any ERISA
Affiliate been notified in writing that such a lien will be imposed on
the assets of any Loan Party or any ERISA Affiliate on account of any
Plan, EXCEPT to the extent that a breach of any of the foregoing
representations and warranties in this Section 4.01(l)(i) would not
result, individually or in the aggregate, in an amount of liability
that would be reasonably likely to have a Material Adverse Effect. No
Plan (other than a multiemployer plan) has an Unfunded Current
Liability that would, individually or when taken together with any
other liabilities referenced in this Section 4.01(l)(i), be reasonably
likely to have a Material Adverse Effect. With respect to Plans that
are multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this Section 4.01(l)(i), other than
any made with respect to (a) liability under Section 4201 or 4204 of
ERISA or (b) liability for termination or reorganization of such Plans
under ERISA, are made to the best knowledge of the Borrowers.
(ii) With respect to each scheme or arrangement mandated by a
government other than the United States (a "FOREIGN GOVERNMENT SCHEME
OR ARRANGEMENT") and with respect to each employee benefit plan
maintained or contributed to by any Subsidiary of any Loan Party that
is not subject to United States law (a "FOREIGN PLAN"), except as in
the aggregate could not reasonably be expected to have Material Adverse
Effect:
(A) Any employer and employee contributions required
by law or by the terms of any Foreign Government Scheme or
Arrangement or any Foreign Plan have been made, or if
applicable, accrued, in accordance with normal accounting
practices.
(B) The fair market value of the assets of each
funded Foreign Plan, the liability of each insurer for any
Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the date hereof, with
respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations
most recently used to determine employer contributions to such
Foreign Plan.
72
(C) Each Foreign Plan required to be registered has
been registered and has been maintained in good standing with
applicable regulatory authorities.
(m) ENVIRONMENTAL MATTERS. (i) Other than instances of
noncompliance that could not reasonably be expected to have a Material
Adverse Effect: (A) the U.S. Borrower and its Subsidiaries are in
compliance with all Environmental Laws in all jurisdictions in which
such Borrower and each of its Subsidiaries are currently doing business
(including, without limitation having obtained all material
Environmental Permits required under Environmental Laws) and (B) the
U.S. Borrower will comply and cause each of their Subsidiaries to
comply with all such Environmental Laws (including, without limitation,
all Environmental Permits required under Environmental Laws).
(ii) Neither Borrower nor any of its Subsidiaries has treated,
stored, transported or disposed of Hazardous Materials at or from any
currently or formerly owned real estate or facility relating to its
business in a manner that could reasonably be expected to have a
Material Adverse Effect.
(n) SECURITIES LAWS. Neither any Loan Party nor any of its
Subsidiaries is an "investment company," or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended.
(o) SOLVENCY. Each Loan Party is, individually and together
with its Subsidiaries, Solvent.
(p) EXISTING DEBT. Set forth on Schedule 4.01(p) hereto is a
complete and accurate list of all Existing Debt (other than Surviving
Debt), showing as of the date of such Schedule the principal amount
outstanding thereunder, and such principal amount has not been
increased from that amount shown on such Schedule.
(q) SURVIVING DEBT. Set forth on Schedule 3.01(d) hereto is a
complete and accurate list of all Debt surviving the Initial Extension
of Credit and set forth on Schedule 3.05(d) is a complete and accurate
list of all Surviving Debt, showing as of the date of such Schedules
the principal amount outstanding thereunder, the maturity date thereof
and the amortization schedule therefor, and such principal amount has
not been increased from that amount shown on such Schedule.
ARTICLE V
COVENANTS OF THE BORROWERS
ARTICLE V COVENANTS OF THE BORROWERS
SECTION 5.01. AFFIRMATIVE COVENANTS.01. AFFIRMATIVE COVENANTS.
So long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, each
Borrower will:
73
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, Environmental Laws and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970, except such as may be contested in good
faith or as to which a bona fide dispute may exist and except to the
extent that noncompliance therewith could not reasonably be expected to
have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all material taxes, assessments and governmental
charges or levies imposed upon it or upon its property prior to the
date on which material penalties attach thereto, and (ii) all lawful
material claims that, if unpaid, might by law become a material Lien
upon the property of the U.S. Borrower or its Restricted Subsidiaries
not otherwise expressly permitted under this Agreement; PROVIDED,
HOWEVER, that neither Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and as
to which appropriate reserves (in the good faith judgment of its
management) are being maintained in accordance with GAAP.
(c) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations (at the time the relevant
coverage is placed or renewed) in such amounts and covering such risks
as is usually carried by companies engaged in the same or similar
businesses and owning similar properties in the same general areas in
which such Borrower or such Restricted Subsidiary operates.
(d) PRESERVATION OF CORPORATE, LIMITED LIABILITY COMPANY AND
PARTNERSHIP EXISTENCE, ETC. Preserve and maintain, and cause each of
its Subsidiaries to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises, except to the extent
that failure to do so could not reasonably be expected to have a
Material Adverse Effect; PROVIDED, HOWEVER, that each Borrower and its
Restricted Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(c) and PROVIDED FURTHER that neither
Borrower nor any of its Restricted Subsidiaries shall be required to
preserve any right, permit, license, approval, privilege or franchise
if the Board of Directors of such Borrower or such Restricted
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such Borrower or such
Restricted Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to such Borrower, such
Restricted Subsidiary or the Lender Parties.
(e) CONDUCT OF BUSINESS. From and after the Closing Date,
engage, and cause its Subsidiaries (taken as a whole) to engage,
primarily in (i) the vehicle component business and any activity or
business incidental, directly related or similar thereto, or any other
lines of business carried on by such Borrower and its Subsidiaries on
the Closing Date or utilizing such Borrower's or Subsidiaries'
manufacturing capabilities on the Closing Date and (ii) other
74
businesses or activities that constitute a reasonable extension,
development or expansion thereof or that are ancillary or reasonably
related thereto.
(f) VISITATION RIGHTS. At any reasonable time and from time to
time, upon reasonable notice and during normal business hours, permit
any authorized representatives designated by the Administrative Agent
or the Majority Lenders to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
such Borrower and any of its Restricted Subsidiaries, and to discuss
the affairs, finances and accounts of such Borrower and any of its
Restricted Subsidiaries with any of their officers or directors and
with their independent certified public accountants, PROVIDED, that
such Borrower may, if it so chooses, be present at or participate in
any such discussion.
(g) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and
cause each of its Restricted Subsidiaries to maintain and preserve, all
of its properties that are used or useful in the conduct of its
business (including intellectual property) in good working order and
condition, ordinary wear and tear excepted, in each case consistent
with past practice, and will from time to time make or cause to be made
all appropriate repairs, renewals and replacements thereof, except
where the failure to do so would not reasonably be likely to have a
Material Adverse Effect.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of
its Restricted Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates on
terms that are fair and reasonable and no less favorable to such
Borrower or such Restricted Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate,
other than (i) transactions between or among the Loan Parties and any
Restricted Subsidiaries of the U.S. Borrower, (ii) payment of customary
annual fees to KKR or its Affiliates for management consulting and
financial services rendered to such Borrower and its Restricted
Subsidiaries and investment banking fees paid to KKR or its Affiliates
for services rendered to such Borrower and its Restricted Subsidiaries
in connection with divestitures, acquisitions, financings and other
transactions to the extent permitted under this Agreement, (iii)
reasonable and customary fees paid to members of the U.S. Borrower's
board of directors, (iv) transactions permitted by Section 5.02(f), and
(v) transactions otherwise expressly permitted hereunder.
(j) APPLICATION OF TERM A ADVANCE. On the day on which the
Term A Loan is borrowed, cause the proceeds received by the Canadian
Borrower from the Term A Advance to be distributed by dividend or
intercompany loan to the U.S. Borrower, net of the amount of any
Canadian withholding taxes or to repay outstanding intercompany loans
owed to the U.S. Borrower.
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(k) COVENANT TO GUARANTY OBLIGATIONS AND TO GIVE SECURITY.
When any new Restricted Subsidiary of the U.S. Borrower is formed,
acquired or designated by the U.S. Borrower or any of its Restricted
Subsidiaries, then, in each case at the expense of the U.S. Borrower,
(i) within 20 days after such formation, acquisition
or designation, in the case of a new Restricted Subsidiary
that is a Domestic Subsidiary of the U.S. Borrower or any of
its Restricted Subsidiaries, cause each such Restricted
Subsidiary to duly execute and deliver to the Administrative
Agent a Subsidiaries Guaranty Supplement under which such
Restricted Subsidiary guarantees payment of all the
Obligations of the Borrowers under the Loan Documents;
PROVIDED, that no Restricted Subsidiary which is not
wholly-owned (directly or indirectly) by the U.S. Borrower and
the organizational documents or agreements with other
shareholders of which prohibit the issuance of any such
guaranty shall be required to issue such guaranty if, after
using its reasonable efforts, the U.S. Borrower has failed to
obtain any necessary consents or approvals for the issuance of
such guaranty,
(ii) within 20 days after such formation, acquisition
or designation in the case of a wholly-owned Restricted
Subsidiary which is a first-tier Subsidiary of the U.S.
Borrower, cause the U.S. Borrower, to pledge the stock or
other equity interests of each such Restricted Subsidiary and
to duly execute and deliver a Pledge Agreement Supplement
covering such stock and/or a new pledge agreement in
substantially the form of the Pledge Agreement or otherwise in
form and substance satisfactory to the Administrative Agent,
pledging 100% of the issued and outstanding stock or other
equity interests owned by the U.S. Borrower in such Restricted
Subsidiary, together with delivery to the Administrative Agent
of certificates representing such pledged stock or other
equity interests accompanied by undated stock powers or other
appropriate powers or assignments executed in blank; PROVIDED,
in the case of a first-tier Restricted Subsidiary which is a
Foreign Subsidiary (other than Canadian Borrower) the U.S.
Borrower shall not be required to pledge more than 66% of the
issued and outstanding stock or other equity interests of such
Restricted Subsidiary, and PROVIDED FURTHER, that the stock of
any Restricted Subsidiary which is not wholly-owned (directly
or indirectly) will be owned by a wholly owned first-tier
Restricted Subsidiary of the U.S. Borrower whose stock or
other equity interests have been pledged in accordance with
the Loan Documents,
(iii) within 20 days after such request, take
whatever action (including, without limitation, the filing of
Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) as
may be reasonably necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated
by it) valid and perfected Liens on the properties purported
to be subject to the Pledge Agreement Supplement or pledge
agreement delivered pursuant to this Section 5.01(k),
enforceable against all third parties in accordance with their
terms, and
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(iv) within 60 days after such request, deliver to
the Administrative Agent a signed copy of a favorable opinion,
addressed to the Administrative Agent, of counsel for the
Borrowers reasonably acceptable to the Administrative Agent as
to the matters contained in clauses (i), (ii) and (iii) above,
as to such guarantees and security agreements being legal,
valid and binding obligations of each of the Borrowers and
their respective Restricted Subsidiaries enforceable in
accordance with their terms and as to such other matters as
the Administrative Agent may reasonably request.
(l) INVESTMENTS IN CANADIAN BORROWER. In the case of the U.S.
Borrower, make loans or advances, or make equity contributions, to the
Canadian Borrower from time to time in amounts sufficient to enable the
Canadian Borrower to perform its Obligations pursuant to Sections
2.02(d), 2.04, 2.06, 2.07, 2.12, 9.04(b) and 9.12(b).
(m) ESTABLISHMENT OF CASH MANAGEMENT SYSTEMS. Within 180 days
of the Closing Date, establish and maintain lockbox accounts and other
cash management systems reasonably acceptable to the Administrative
Agent.
SECTION 5.02. NEGATIVE COVENANTS.02. NEGATIVE COVENANTS. So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, neither
Borrower will, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now
owned or hereafter acquired, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule 5.02(a) hereto;
(iv) (A) purchase money Liens upon or in real
property or equipment acquired or held by the Borrowers or any
of their Restricted Subsidiaries in the ordinary course of
business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any
such property or equipment to be subject to such Liens, or
Liens existing on any such property or equipment at the time
of acquisition (other than any such Liens created in
contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of
any of the foregoing for the same or a lesser amount and (B)
Liens to secure Debt incurred within 270 days of the
acquisition, construction or improvement of fixed or capital
assets to finance the acquisition, construction or improvement
of such fixed or capital assets or otherwise incurred during
such 270 day period in respect of Capital Expenditures
permitted pursuant to Section 5.02(j); PROVIDED, HOWEVER, that
no such Lien shall
77
extend to or cover any property other than the property or
equipment being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended,
renewed or replaced; and PROVIDED FURTHER, HOWEVER, that the
aggregate principal amount of the Debt secured by Liens
permitted by this clause (iv) shall not exceed the aggregate
amount permitted under Section 5.02(b)(iii)(B) at any time
outstanding and that any such Debt shall not otherwise be
prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(B); PROVIDED that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vi) with respect to any Debt incurred pursuant to
Section 5.02(b)(iii)(D) or (F) Liens (A) placed upon the
assets of any Restricted Subsidiary to secure Debt of such
Restricted Subsidiary incurred in connection with any
acquisition by such Restricted Subsidiary or (B) placed upon
the assets or stock (unless required to be pledged to the
Administrative Agent pursuant to Section 5.01(k)) of any
acquired Person to secure a guarantee by such Person of any
Debt of a Borrower or any Restricted Subsidiary;
(vii) the replacement, extension or renewal of any
Lien permitted hereunder upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any
direct or contingent obligor) of the Debt secured thereby;
(viii) Liens on the stock and/or assets of the Mexico
Subsidiary to secure Debt permitted under Section
5.02(b)(ii)(B); and
(ix) other Liens securing Obligations of the U.S.
Borrower and its Restricted Subsidiaries in an aggregate
principal amount not to exceed $10,000,000 at any time
outstanding.
(b) DEBT. Create, incur, assume or suffer to exist, or permit
any of its Restricted Subsidiaries to create, incur, assume or suffer
to exist, any Debt other than:
(i) in the case of the Borrowers,
(A) Subordinated Debt evidenced by the
Subordinated Notes, and any Debt extending the
maturity of, or refinancing, in whole or in part such
Subordinated Notes, PROVIDED that the terms of any
such extension or refinancing, and of any agreement
entered into and of any instrument issued in
connection therewith, are not prohibited by the Loan
Documents, PROVIDED, FURTHER, that the principal
amount of such Debt shall not be increased above the
principal amount thereof outstanding immediately
prior to such extension or
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refinancing, PROVIDED, FURTHER, that the terms
relating to principal amount, amortization, maturity,
interest rate, subordination, and other material
terms of any such extension or refinancing and of any
agreement entered into and of any instrument issued
in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender
Parties than the terms of the Subordinated Notes.
(B) Debt in respect of Hedge Agreements
incurred in the ordinary course of business and
consistent with prudent business practice, and
(C) Debt consisting of any undertaking by
the U.S. Borrower to guaranty the obligations of the
Mexico Subsidiary, in an aggregate principal amount
not to exceed $35,000,000;
(ii) in the case of any of its Restricted
Subsidiaries (A) Debt owed to the Borrowers or to a Restricted
Subsidiary of the Borrowers, and (B) in the case of the Mexico
Subsidiary only, Debt in an aggregate amount not to exceed
$35,000,000 at any time outstanding; and
(iii) in the case of the Borrowers and any of their
Restricted Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) and Capitalized Leases not to
exceed an aggregate amount equal to $50,000,000 at
any time outstanding,
(C) the Surviving Debt, and any Debt
extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving Debt,
provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in
connection therewith, are not prohibited by the Loan
Documents, PROVIDED that the principal amount of such
Surviving Debt shall not be increased above the
principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall
not be changed, as a result of or in connection with
such extension, refunding or refinancing,
(D) Debt of any Person existing at the time
such Person is merged into or consolidated with, or
acquired by, either Borrower or any Restricted
Subsidiary or becomes a Restricted Subsidiary of
either Borrower in accordance with the provisions of
Section 5.02(e)(xi) or (xii); PROVIDED that such Debt
was not incurred in contemplation of such merger,
consolidation or investment; and PROVIDED FURTHER
that neither Borrower nor any Restricted Subsidiary
which acquired such Person is liable for such Debt;
and PROVIDED FURTHER, that the aggregate amount of
all Debt incurred pursuant hereunder
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shall, when taken together with any Debt incurred
pursuant to clause (F) of this Section 5.02(b)(iii),
in no event exceed $100,000,000 in the aggregate at
any time outstanding,
(E) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business,
(F) Debt incurred in connection with an
Investment made pursuant to Section 5.02(e)(xi) or
(xii); PROVIDED, that the aggregate amount of all
Debt incurred pursuant hereunder shall, when taken
together with any Debt incurred pursuant to clause
(D) of this Section 5.02(b)(iii), in no event exceed
$100,000,000 in the aggregate at any time
outstanding,
(G) Debt consisting of guaranty Obligations
in the ordinary course of business of the obligations
of suppliers, customers, franchisees and licensees of
the U.S. Borrower and its Restricted Subsidiaries,
(H) Debt in respect of any bankers'
acceptance, letter of credit, warehouse receipt or
similar facilities entered into in the ordinary
course of business, and
(I) other Debt outstanding in an aggregate
amount not to exceed $50,000,000 at any time
outstanding.
(c) MERGERS, ETC. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that (i) any Restricted Subsidiary of
either Borrower may merge into or consolidate with any other Restricted
Subsidiary of such Borrower, (ii) either Borrower's Restricted
Subsidiaries may merge into such Borrower and (iii) either Borrower or
any of its Restricted Subsidiaries may merge into or consolidate with
any other Person or permit any other Person to merge into or
consolidate with it; PROVIDED HOWEVER, that in each case referred to in
clause (i) through (iii) above, immediately after giving effect
thereto, no event shall occur and be continuing or result therefrom
that constitutes a Default and, in the case of any merger or
consolidation to which any Loan Party is a party, the corporation
formed by such consolidation or into which such Loan Party shall be
merged shall, at the effective time of such merger or consolidation,
(A) assume such Loan Party's Obligations under the Loan Documents and
performance of such Loan Party's covenants under the Loan Documents to
which it is a party in a writing satisfactory in form and substance to
the Majority Lenders and (B), if a party to the Pledge Agreement, take
or have taken all action required by Section 8 of the Pledge Agreement,
and take or have taken such other action as may be necessary or
desirable, or as the Administrative Agent may request, in order to
preserve the Liens, and continue the perfection thereof with the same
priority, as granted and provided for or purported to be granted and
provided for by the Pledge Agreement.
(d) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except:
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(i) sales, transfers or other dispositions of used or
surplus equipment, vehicles, inventory or other assets in the
ordinary course of its business;
(ii) sales of assets for fair value in an aggregate
amount not to exceed $100,000,000 during the term of this
Agreement; PROVIDED that (A) any non-cash consideration in
respect of such sale in the form of Debt of any Person in an
amount in excess of $5,000,000 shall be evidenced by a
promissory note which shall be pledged to the Administrative
Agent for the benefit of the Secured Parties pursuant to the
Pledge Agreement as security for the Obligations of such
pledgor hereunder, and the Net Cash Proceeds of any such sales
shall be applied pursuant to, and in the amount and the order
of priority set forth in, Section 2.06(b)(ii), (B) immediately
before and after giving effect to such sale, no Default shall
have occurred and be continuing or would result therefrom and
(C) with respect to any such sale (or series of related sales)
in an aggregate amount in excess of $10,000,000, immediately
after giving effect to such sale, the U.S. Borrower and its
Restricted Subsidiaries shall be in pro forma compliance with
the covenants contained in Section 5.04, calculated based on
the relevant financial statements delivered pursuant to
Section 5.03(b) or (c), as though such sale had occurred at
the beginning of the Measurement Period covered thereby, as
evidenced by a certificate of the chief financial officer of
the U.S. Borrower furnished to the Lender Parties
demonstrating such compliance; and
(iii) sales or contributions of equipment or other
personal property to Restricted Subsidiaries or other joint
ventures; PROVIDED, that the aggregate fair market value of
the assets so sold or contributed (determined, in each case,
at the time of such sale or contribution) does not exceed
$15,000,000 during the term of this Agreement.
(e) INVESTMENTS IN OTHER PERSONS. Make or hold, or permit any
of its Restricted Subsidiaries to make or hold, any Investment in any
Person other than:
(i) Investments existing on December 31, 1997 and
described on Schedule 5.02(e), and any extensions, renewals or
reinvestments thereof, so long as the aggregate amount of all
Investments pursuant to this clause (measured by the amount
actually invested) is not increased at any time above the
amount of such Investments existing on such date;
(ii) loans and advances to employees in the ordinary
course of the business of the Borrowers and their Restricted
Subsidiaries as presently conducted in an aggregate amount not
to exceed $5,000,000 at any time outstanding and other loans
and advances to employees for the purchase of capital stock of
the U.S. Borrower;
(iii) Investments by the Borrowers and their
Restricted Subsidiaries in Cash Equivalents;
(iv) Investments by the Borrowers in Hedge Agreements
permitted under Section 5.02(b)(i)(B);
81
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(ii);
(vi) Investments received in connection with the
bankruptcy or reorganization of suppliers or customers and in
settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business;
(vii) Investments to the extent that payment for such
Investments is made solely with capital stock of the U.S.
Borrower;
(viii) Investments constituting non-cash proceeds of
sales, transfers and other dispositions of assets to the
extent permitted by Section 5.02(d)(ii);
(ix) Investments made to pay for the repurchase,
retirement or other acquisition of the capital stock of the
U.S. Borrower in an aggregate amount at the time of such
Investment not in excess of the lesser of (i) the Available
Amount at such time and (ii) the aggregate amount of such
Investments then permitted to be made under the Subordinated
Debt Documents;
(x) In the case of the U.S. Borrower, Investments
required pursuant to Section 5.01(l);
(xi) (A) Investments in Restricted Subsidiaries and
(B) Investments in other Persons in an aggregate amount not to
exceed $25,000,000; PROVIDED that with respect to all such
Investments (A) immediately before and after giving effect
thereto, no Default shall have occurred and be continuing or
would result therefrom; (B) any business acquired or invested
in pursuant to this clause shall comply with the requirements
of Section 5.01(e); (C) immediately after giving effect to the
acquisition of a company or business pursuant to this clause,
the U.S. Borrower and its Restricted Subsidiaries shall be in
pro forma compliance with the covenants contained in Section
5.04, calculated based on the relevant financial statements
delivered pursuant to Section 5.03(b) or (c), as though such
acquisition had occurred at the beginning of the Measurement
Period covered thereby, as evidenced by a certificate of the
chief financial officer of the U.S. Borrower furnished to the
Lender Parties demonstrating such compliance; and (D) the U.S.
Borrower shall have a Leverage Ratio, calculated based on the
relevant financial statements delivered pursuant to Section
5.03(b) or (c), as though such acquisition had occurred at the
beginning of the Measurement Period covered thereby, as
evidenced by a certificate of the chief financial officer of
the U.S. Borrower furnished to the Lender Parties
demonstrating such compliance, for any such Investment made
prior to December 31, 2000, of less than or equal to 6.50:1.00
and for any such Investment made thereafter, of less than or
equal to 6.00:1.00; and
(xii) other Investments in other Persons in an
aggregate amount not to exceed $25,000,000 plus, at any time,
the Available Amount at such time; PROVIDED that with respect
to all such Investments (A) immediately before and after
giving effect
82
thereto, no Default shall have occurred and be continuing or
would result therefrom; (B) any business acquired or invested
in pursuant to this clause shall comply with the requirements
of Section 5.01(e); (C) immediately after giving effect to the
acquisition of a company or business pursuant to this clause,
the U.S. Borrower and its Restricted Subsidiaries shall be in
pro forma compliance with the covenants contained in Section
5.04, calculated based on the relevant financial statements
delivered pursuant to Section 5.03(b) or (c), as though such
acquisition had occurred at the beginning of the Measurement
Period covered thereby, as evidenced by a certificate of the
chief financial officer of the U.S. Borrower furnished to the
Lender Parties demonstrating such compliance.
(f) DIVIDENDS, ETC. In the case only of the U.S. Borrower,
declare or pay any dividends, purchase, redeem, retire, defease or
otherwise acquire for value any of its capital stock or any warrants,
rights or options to acquire such capital stock, now or hereafter
outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options,
obligations or securities to its stockholders as such, or permit any of
its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any capital stock of the U.S. Borrower or any
warrants, rights or options to acquire such capital stock or to issue
or sell any such capital stock or any warrants, rights or options to
acquire such capital stock, except that, so long as no Default shall
have occurred and be continuing at the time of any action described
below or would result therefrom, (i) the U.S. Borrower may declare and
pay dividends and distributions payable only in common stock of the
U.S. Borrower, (ii) the U.S. Borrower may redeem in whole or in part
any capital stock of the U.S. Borrower for another class of capital
stock or rights to acquire capital stock of the U.S. Borrower or with
proceeds from substantially concurrent equity contributions or
issuances of new shares of capital stock, PROVIDED that such other
class of capital stock contains terms and provisions at least as
advantageous to the Lender Parties as those contained in the capital
stock redeemed thereby, (iii) the U.S. Borrower may repurchase shares
of its capital stock (and/or options or warrants in respect thereof)
held by its officers, directors and employees so long as such
repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements
on shareholder agreements, (iv) either Borrower may make Investments
permitted by Section 5.02(e)(vii), and (v) the U.S. Borrower may, so
long as after giving effect to the payment of any dividends pursuant to
this subclause (v) the Leverage Ratio is less than or equal to
4.00:1.00, pay dividends in any Fiscal Year in an amount not to exceed
50% of the Cumulative Available Consolidated Net Income.
(g) PREPAYMENTS, ETC. OF DEBT. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Subordinated Debt; PROVIDED, HOWEVER, that so long as no
Default or Event of Default has occurred and is continuing, the U.S.
Borrower may optionally prepay, repurchase or redeem Subordinated Notes
(i) for an aggregate price not in excess of the Available Amount at the
time of such prepayment, repurchase or redemption or (ii) with the
proceeds of subordinated Debt that (A) is permitted by Section 5.02(b)
and (B) has terms material to the interests of the Lender Parties not
materially less advantageous to the Lender Parties.
83
(h) AMENDMENT, ETC. OF DOCUMENTS. Amend or otherwise change,
or consent to any amendment or change of, any of the terms of the AKW
LLC Agreement, the AKW LP Agreement or any Subordinated Debt Document
in a manner that would be adverse to the Lender Parties in any material
respect or permit any of its Subsidiaries to do any of the foregoing;
PROVIDED, HOWEVER, that the U.S. Borrower may cause AKW LLC or AKW LP
to merge or liquidate into a wholly-owned Restricted Subsidiary of the
U.S. Borrower without a breach of this subsection (h), subject to the
provisions of Section 5.01(k).
(i) PARTNERSHIPS, ETC. Become a general partner in any general
or limited partnership or joint venture which is not a limited
liability entity, or permit any of its Restricted Subsidiaries to do
so, other than any Restricted Subsidiary the sole assets of which
consist of its interest in such partnership or joint venture.
(j) CAPITAL EXPENDITURES. (i) Make, or permit any of its
Restricted Subsidiaries to make, any Capital Expenditures that would
cause the aggregate amount of all Capital Expenditures of the U.S.
Borrower and its Restricted Subsidiaries in any Fiscal Year (exclusive
of those described in clauses (ii), (iii), (iv) and (v) below) to
exceed an amount equal to (A) for the Fiscal Year 1998, $35,000,000,
(B) for the Fiscal Years 1999 and 2000, the greater of $20,000,000 and
5% of Consolidated Revenues as determined for and at the end of the
prior Fiscal Year, and (C) for each year thereafter, the greater of
$15,000,000 and 5% of Consolidated Revenues, in each case as determined
for and at the end of the prior Fiscal Year PLUS, in each case, the
Available Amount, PROVIDED that the unused portion of Capital
Expenditures permitted in any Fiscal Year and not used in such period
may be carried over and added to the amount otherwise permitted in the
immediately three succeeding Fiscal Years, it being understood that for
purposes of the foregoing, the Borrowers and their Restricted
Subsidiaries shall be deemed to have used the amount originally
available during each such succeeding Fiscal Year prior to any such
carry-over amount, and PROVIDED FURTHER, that the aggregate amount so
carried over at any time may not exceed $20,000,000;
(ii) Make, or permit any of its Restricted Subsidiaries to
make, any Capital Expenditures in the Light Wheels Facility, except
that such Capital Expenditures may be made in an amount not to exceed
$42,000,000 in the aggregate through December 31, 2002, plus an amount
of Capital Expenditures in the Light Wheels Facility pursuant to
Section 5.02(j)(i);
(iii) Make or permit any of its Restricted Subsidiaries to
make, any Capital Expenditures in the Mexico Facility, except that the
Mexico Subsidiary may make such Capital Expenditures in an amount not
to exceed $36,000,000 in the aggregate through December 31, 2002, plus
an amount of Capital Expenditures in the Mexico Facility pursuant to
Section 5.02(j)(i);
(iv) Make, or permit any of its Restricted Subsidiaries to
make, any Capital Expenditures for AKW LP, except that such Capital
Expenditures may be made in an amount not to exceed $50,000,000 in the
aggregate through December 31, 2002, plus an amount of Capital
Expenditures for AKW LP pursuant to Section 5.02(j)(i); and
84
(v) Make, or permit any of its Restricted Subsidiaries to
make, any additional Capital Expenditures, except that such additional
Capital Expenditures may be made in an aggregate amount not to exceed
the lesser of $10,000,000 and the Purchase Price Adjustment Amount.
SECTION 5.03. REPORTING REQUIREMENTS.03. REPORTING
REQUIREMENTS. So long as any Advance shall remain unpaid, any Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
each Borrower will furnish to the Lender Parties:
(a) DEFAULT OR LITIGATION NOTICE. Promptly upon any
Responsible Officer of either Borrower or any of their respective
Subsidiaries obtaining knowledge thereof, notice of (i) the occurrence
of any event that constitutes a Default or an Event of Default, which
notice shall specify the nature thereof, the period of existence
thereof and what action the appropriate Borrower proposes to take with
respect thereto, and (ii) any litigation or governmental proceeding
pending against either Borrower or any of their respective Subsidiaries
that could reasonably be expected to result in a Material Adverse
Effect.
(b) QUARTERLY FINANCIALS. As soon as available and in any
event within 60 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, a Consolidated balance sheet of (i) the
U.S. Borrower and its Subsidiaries and (ii) if the U.S. Borrower has
any Unrestricted Subsidiaries, the U.S. Borrower and its Restricted
Subsidiaries, in each case as of the end of such Fiscal Quarter and the
related Consolidated statements of income and cash flow for the period
commencing at the end of the previous Fiscal Quarter and ending with
the end of such Fiscal Quarter and for the period commencing at the end
of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding
Fiscal Year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer of such
Borrower as having been prepared in accordance with GAAP, together with
(i) a certificate of said officer stating that no Default has occurred
and is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that such Borrower
has taken and proposes to take with respect thereto, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used
by the U.S. Borrower in determining compliance with the covenants
contained in Sections 5.02(j) and 5.04, PROVIDED that in the event of
any change in GAAP used in the preparation of such financial
statements, the U.S. Borrower shall also provide, if necessary for the
determination of compliance with Sections 5.02(j) and 5.04, a statement
of reconciliation conforming such financial statements to GAAP and
(iii) if there is any change in the Pro Forma EBITDA Adjustment from
the amount set forth in any certificate previously delivered to the
Administrative Agent pursuant to Section 5.03(g), setting forth the
recalculated amount of such Pro Forma EBITDA Adjustment and, in
reasonable detail satisfactory to the Administrative Agent, the
calculations and basis thereof.
(c) ANNUAL FINANCIALS. As soon as available and in any event
within 120 days after the end of each Fiscal Year, a Consolidated
balance sheet of (i) such Borrower and its Subsidiaries and (ii) if the
U.S. Borrower has any Unrestricted Subsidiaries, such Borrower and its
Restricted Subsidiaries, in each case as of the end of such Fiscal Year
and the related Consolidated statements of income and cash flow for
such Fiscal Year setting forth in each case
85
in comparative form the corresponding figures for the previous Fiscal
Year, accompanied by an opinion which shall be unqualified as to the
scope of the audit and as to the going concern status of such Borrower
and its Subsidiaries or such Borrower and its Restricted Subsidiaries,
as the case may be, taken as a whole, of Deloitte & Touche LLP or other
independent public accountants of recognized standing acceptable to the
Majority Lenders, together with (A) a certificate of such accounting
firm to the Lender Parties stating that in the course of the regular
audit of the business of such Borrower and its Subsidiaries or such
Borrower and its Restricted Subsidiaries, as the case may be, which
audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default or Event of
Default has occurred and is continuing, a statement as to the nature
thereof, (B) a schedule in form satisfactory to the Administrative
Agent of the computations used by the U.S. Borrower in determining, as
of the end of such Fiscal Year, compliance with the covenants contained
in Sections 5.02(j) and 5.04, PROVIDED that in the event of any change
in GAAP used in the preparation of such financial statements, the U.S.
Borrower shall also provide, if necessary for the determination of
compliance with Sections 5.02(j) and 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (C) a
certificate of the chief financial officer of such Borrower stating
that no Default has occurred and is continuing or, if a default has
occurred and is continuing, a statement as to the nature thereof and
the action that such Borrower has taken and proposes to take with
respect thereto.
(d) ANNUAL FORECASTS. As soon as available and in any event no
later than 60 days after the beginning of each Fiscal Year, forecasts
prepared by management of such Borrower, in reasonable detail and in
form customarily prepared by management of such Borrower for its
internal use and setting forth an explanation for the principal
assumptions on which such forecasts were based, of balance sheets,
income statements and cash flow statements on a monthly basis for the
Fiscal Year following such Fiscal Year then ended and on an annual
basis for each of the four Fiscal Years thereafter.
(e) ERISA. Promptly after any Loan Party or any ERISA
Affiliate obtains knowledge, or has reason to know, of the occurrence
of any of the following events that individually or in the aggregate
(including in the aggregate such events previously disclosed or exempt
from disclosure hereunder, to the extent the liability therefor remains
outstanding), would be reasonably likely to have a Material Adverse
Effect, a certificate of a Responsible Officer of the U.S. Borrower
setting forth details as to such occurrence and the action, if any,
that any Loan Party or any ERISA Affiliate is required or proposes to
take, together with any notices (required, proposed or otherwise) given
to or filed with or by or received by any Loan Party, any ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to
an individual participant's benefits) or the Plan administrator with
respect thereto: that a Reportable Event has occurred; that an
accumulated funding deficiency has been incurred or an application has
been or is to be made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under
Section 412 of the Internal Revenue Code with respect to a Plan; that a
Plan having an Unfunded Current Liability has been or is to be
terminated, reorganized, partitioned or declared insolvent under Title
IV of ERISA (including
86
the giving of written notice thereof); that a Plan has an Unfunded
Current Liability that has or is reasonably expected to result in a
lien under ERISA or the Internal Revenue Code; that proceedings are
reasonably expected to be or have been instituted to terminate a Plan
having an Unfunded Current Liability (including the giving of written
notice thereof); that a proceeding has been instituted against any Loan
Party or any ERISA Affiliate pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Plan; that the PBGC has notified
any Loan Party or any ERISA Affiliate of its intention to appoint a
trustee to administer any Plan; that any Loan Party or any ERISA
Affiliate has failed to make a required installment or other payment
pursuant to Section 412 of the Internal Revenue Code with respect to a
Plan; or that any Loan Party or any ERISA Affiliate has incurred or is
reasonably expected to incur (or has been notified in writing that it
will incur) any liability (including any contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i),
502(1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section
4971 or 4975 or the Internal Revenue Code.
(f) ENVIRONMENTAL CONDITIONS. Promptly after obtaining
knowledge of any one or more of the following environmental matters,
unless such environmental matters would not, individually or when
aggregated with all other such matters, be reasonably expected to
result in a Material Adverse Effect:
(i) notice of any pending or threatened Environmental
Claim against the U.S. Borrower or any of its Subsidiaries or
any Real Estate (as defined below);
(ii) notice of any condition or occurrence on any
Real Estate that (x) results in noncompliance by the U.S.
Borrower or any of its Subsidiaries with any applicable
Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the U.S.
Borrower or any of its Subsidiaries or any Real Estate;
(iii) notice of any condition or occurrence on any
Real Estate that could reasonably be anticipated to cause such
Real Estate to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real
Estate under any Environmental Law; and
(iv) notice of the taking of any removal or remedial
action in response to the actual or alleged presence of any
Hazardous Material on any Real Estate.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the U.S. Borrower's response thereto. The term "REAL ESTATE"
shall mean land, buildings and improvements owned or leased by the U.S.
Borrower or any of its Subsidiaries, but excluding all operating
fixtures and equipment, whether or not incorporated into improvements.
(g) PRO FORMA EBITDA ADJUSTMENT CERTIFICATE. Upon the
consummation of the acquisition of any Restricted Subsidiary, a
certificate of the chief financial officer of the U.S. Borrower
demonstrating compliance with the provisions of Section 5.02(e)(xi) and
5.04 and, if there is to be any Pro Forma EBITDA Adjustment, setting
forth the amount of such Pro Forma
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EBITDA Adjustment and, in reasonable detail satisfactory to the
Administrative Agent, setting forth the calculations and basis
therefor.
(h) DESIGNATION CERTIFICATE. Upon the designation of any
Subsidiary (A) as a Restricted Subsidiary from an Unrestricted
Subsidiary or (B) as an Unrestricted Subsidiary from a Restricted
Subsidiary, a certificate of the chief financial officer of the U.S.
Borrower certifying as to compliance with the provisions of Section
5.02(a), 5.02(b) and 5.02(e) and demonstrating compliance with the
provisions of Section 5.04 and setting forth the calculations and basis
therefor, in each case after giving effect to such designation in
reasonable detail satisfactory to the Administrative Agent.
(i) AMENDMENT OF DOCUMENTS. Promptly after the same shall
become effective, copies of any amendment or supplement to, or other
modification of, the AKW LP Agreement, the AKW LLC Agreement or any
Subordinated Debt Document.
(j) SECURITIES REPORTS/OTHER INFORMATION. Promptly after the
sending or filing thereof, copies of all proxy statements, financial
statements and reports that any Loan Party or any of its Subsidiaries
sends to its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, that any Loan Party
or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted
therefor, or with any national securities exchange (in each case to the
extent not theretofore delivered to the Lender Parties pursuant to this
Agreement), and with reasonable promptness such other information
(financial or otherwise) as the Administrative Agent on its own behalf
or on behalf of any Lender Party may reasonably request in writing from
time to time
SECTION 5.04. FINANCIAL COVENANTS.04. FINANCIAL COVENANTS. So
long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the U.S.
Borrower will:
(a) LEVERAGE RATIO. Maintain at the end of each Fiscal Quarter
a Leverage Ratio of not more than the ratio set forth below for each
Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
December 31, 1998 6.000:1
March 31, 1999 5.750:1
June 30, 1999 5.750:1
September 30, 1999 5.750:1
December 31, 1999 5.750:1
March 31, 2000 5.500:1
June 30, 2000 5.500:1
September 30, 2000 5.500:1
December 31, 2000 5.500:1
March 31, 2001 5.250:1
June 30, 2001 5.250:1
September 30, 2001 5.250:1
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MEASUREMENT
PERIOD ENDING RATIO
------------- -----
December 31, 2001 5.000:1
March 31, 2002 5.000:1
June 30, 2002 5.000:1
September 30, 2002 4.750:1
December 31, 2002 4.750:1
March 31, 2003 4.500:1
June 30, 2003 4.500:1
September 30, 2003 4.250:1
December 31, 2003 4.250:1
March 31, 2004 4.000:1
and thereafter
(b) INTEREST COVERAGE RATIO. Maintain at the end of each
Fiscal Quarter an Interest Coverage Ratio of not less than the ratio
set forth below for each Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
December 31, 1998 1.500:1
March 31, 1999 1.500:1
June 30, 1999 1.500:1
September 30, 1999 1.500:1
December 31, 1999 1.500:1
March 31, 2000 1.625:1
June 30, 2000 1.625:1
September 30, 2000 1.625:1
December 31, 2000 1.625:1
March 31, 2001 1.750:1
June 30, 2001 1.750:1
September 30, 2001 1.750:1
December 31, 2001 1.750:1
March 31, 2002 2.000:1
June 30, 2002 2.000:1
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MEASUREMENT
PERIOD ENDING RATIO
------------- -----
September 30, 2002 2.000:1
December 31, 2002 2.000:1
March 31, 2003 2.000:1
June 30, 2003 2.000:1
September 30, 2003 2.000:1
December 31, 2003 2.000:1
March 31, 2004 2.000:1
June 30, 2004 2.000:1
September 30, 2004 2.500:1
and thereafter
(c) FIXED CHARGE COVERAGE RATIO. Maintain at the end of each
Fiscal Quarter a Fixed Charge Coverage Ratio of not less than the ratio
set forth below for each Measurement Period set forth below:
MEASUREMENT
PERIOD ENDING RATIO
------------- -----
December 31, 1998 1.050: 1
and thereafter
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ARTICLE VI
GUARANTY
ARTICLE VI GUARANTY
SECTION 6.01. GUARANTY.01. GUARANTY. The U.S. Borrower hereby
unconditionally and irrevocably guarantees (the provisions set forth in this
Article VI being the "GUARANTY") the punctual payment when due, whether at
scheduled maturity or at a date fixed for prepayment or by acceleration, demand
or otherwise, of all of the Obligations of the Canadian Borrower now or
hereafter existing under or in respect of the Loan Documents, whether direct or
indirect, absolute or contingent, and whether for principal, interest, fees,
indemnification payments, costs, expenses or otherwise (such Obligations being
the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Administrative Agent or any of the other Lender Parties in
enforcing any rights under this Guaranty. Without limiting the generality of the
foregoing, the liability of the U.S. Borrower shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by the Canadian
Borrower under or in respect of the Loan Documents but for the fact that such
Guaranteed Obligations are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Canadian
Borrower.
SECTION 6.02. GUARANTY ABSOLUTE.02. GUARANTY ABSOLUTE. (a) The
U.S. Borrower guarantees that all of the Guaranteed Obligations will be paid
strictly in accordance with the terms of the Loan Documents, regardless of any
Requirements of Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent or any of the other
Lender Parties with respect thereto. The Obligations of the U.S. Borrower under
this Guaranty are independent of the Guaranteed Obligations or any other
Obligations of the Canadian Borrower under or in respect of the Loan Documents,
and a separate action or actions may be brought and prosecuted against the U.S.
Borrower to enforce this Guaranty, irrespective of whether any action is brought
against the Canadian Borrower or whether the Canadian Borrower is joined in any
such action or actions. The liability of the U.S. Borrower under this Guaranty
shall be absolute, unconditional and irrevocable irrespective of, and the U.S.
Borrower hereby irrevocably waives any defenses it may now have or may hereafter
acquire in any way relating to, any and all of the following:
(i) any lack of validity or enforceability of any of the Loan
Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of the Canadian Borrower under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to
departure from any of the Loan Documents (including, without
limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to the Canadian Borrower or any of
its Subsidiaries or otherwise);
(iii) any taking, exchange, release or nonperfection of any of
the Collateral, or any taking, release or amendment or waiver of, or
consent to departure from, the Subsidiaries Guaranty or any other
guarantee, for all or any of the Guaranteed Obligations;
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(iv) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of the Canadian
Borrower under or in respect of the Loan Documents, or any other
property and assets of the Canadian Borrower or any of its
Subsidiaries;
(v) any change, restructuring or termination of the legal
structure or existence of the Canadian Borrower or any of its
Subsidiaries;
(vi) any failure of any of the Lender Parties to disclose to
the Canadian Borrower any information relating to the business,
condition (financial or otherwise), operations, performance, properties
or prospects of the Canadian Borrower now or hereafter known to such
Lender Party;
(vii) the failure of any other Person to execute the
Subsidiaries Guaranty or any other guarantee or agreement or the
release or reduction of liability of the Canadian Borrower or any other
guarantor or surety with respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation,
any statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any of the other Lender
Parties) that might otherwise constitute a defense available to, or a
discharge of, the U.S. Borrower or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any of the other
Lender Parties or by any other Person upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower or otherwise, all as though such payment
had not been made, and the U.S. Borrower hereby unconditionally and irrevocably
agrees that it will indemnify the Administrative Agent and each of the other
Lender Parties, upon demand, for all of the costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or such other Lender Party in connection with any such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
a fraudulent transfer or a similar payment under any bankruptcy, insolvency or
similar Requirements of Law.
(b) The U.S. Borrower hereby further agrees that, as between
the U.S. Borrower, on the one hand, and the Administrative Agent and the Lender
Parties, on the other hand, (i) the Guaranteed Obligations of the Canadian
Borrower may be declared to be forthwith due and payable as provided in Section
7.01 (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 7.01) for purposes of this Guaranty,
notwithstanding any stay, injunction or other prohibition preventing such
declaration in respect of such Guaranteed Obligations (or preventing such
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and (ii) in the event of any declaration of acceleration of
such Guaranteed Obligations (or such Guaranteed Obligations being deemed to have
become automatically due and payable) as provided in Section 7.01, such
Guaranteed Obligations (whether or not due and payable by the
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Canadian Borrower) shall forthwith become due and payable by the U.S. Borrower
for all purposes of this Guaranty.
SECTION 6.03. WAIVERS AND ACKNOWLEDGMENTS.03. WAIVERS AND
ACKNOWLEDGMENTS. (a) The U.S. Borrower hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, protest, dishonor and any other
notice with respect to any of the Guaranteed Obligations and this Guaranty, and
any requirement that the Administrative Agent or any of the other Lender Parties
protect, secure, perfect or insure any Lien or any property or assets subject
thereto or exhaust any right or take any action against the Canadian Borrower or
any other Person or any of the Collateral.
(b) The U.S. Borrower hereby waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the
Administrative Agent or the other Lender Parties which in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the U.S. Borrower or any
other rights of the U.S. Borrower to proceed against the Canadian Borrower, any
other guarantor or any other Person or any of the Collateral, and (ii) any
defense based on any right of setoff or counterclaim against or in respect of
the Obligations of the U.S. Borrower under this Guaranty.
(c) The U.S. Borrower hereby unconditionally and irrevocably
waives any duty on the part of the Administrative Agent or any of the other
Lender Parties to disclose to the U.S. Borrower any fact or other matter
relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Canadian Borrower or any of its
Subsidiaries or the property and assets thereof now or hereafter known by the
Administrative Agent or such other Lender Party.
(d) The U.S. Borrower hereby unconditionally waives any right
to revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(e) The U.S. Borrower hereby acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section
6.02 and in this Section 6.03 are knowingly made in contemplation of such
benefits.
SECTION 6.04. SUBROGATION.04. SUBROGATION. The U.S. Borrower
hereby unconditionally and irrevocably agrees not to exercise any rights that it
may now have or may hereafter acquire against the Canadian Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Obligations of the U.S. Borrower under this Guaranty or any
of the other Loan Documents, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Administrative Agent or any
of the other Lender Parties against the Canadian Borrower or any other insider
guarantor or any Collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute, common law or any other Requirements of
Law, including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner,
93
payment or security on account of such claim, remedy or right, unless and until
such time as all of the Guaranteed Obligations and all of the other amounts
payable under this Guaranty shall have been paid in full in cash. If any amount
shall be paid to the U.S. Borrower in violation of the immediately preceding
sentence at any time prior to the latest of the payment in full in cash of all
of the Guaranteed Obligations and all of the other amounts payable under this
Guaranty, such amount shall be received and held in trust for the benefit of the
Administrative Agent and the other Lender Parties, shall be segregated from the
other property and funds of the U.S. Borrower and shall be delivered forthwith
to the Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and the other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any of the Guaranteed Obligations or any of the other amounts
payable under this Guaranty thereafter arising. If (i) the U.S. Borrower shall
pay to the Administrative Agent all or any part of the Guaranteed Obligations
and (ii) all of the Guaranteed Obligations and all of the other amounts payable
under this Guaranty shall have been paid in full in cash, the Administrative
Agent and the other Lender Parties will, at the U.S. Borrower's request and
expense, execute and deliver to the U.S. Borrower appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer of subrogation to the U.S. Borrower of an interest in the Guaranteed
Obligations resulting from the payment made by the U.S. Borrower under this
Guaranty.
SECTION 6.05. CONTINUING GUARANTY; ASSIGNMENTS.05. CONTINUING
GUARANTY; ASSIGNMENTS. This Guaranty is a continuing guarantee and shall (a)
remain in full force and effect until the payment in full in cash of all of the
Guaranteed Obligations and all of the other amounts payable under this Guaranty,
(b) be binding upon the U.S. Borrower and its successors and assigns and (c)
inure to the benefit of, and be enforceable by, the Administrative Agent and the
other Lender Parties and their respective successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding
sentence, any of the Lender Parties may assign or otherwise transfer all or any
portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it) to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender under this Article VI or otherwise, in each case
as provided in Section 9.07.
ARTICLE VII ARTICLE VII
EVENTS OF DEFAULT
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT.01. EVENTS OF DEFAULT. If any
of the following events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) either Borrower shall (i) fail to pay any principal of any
Advance owing by it when the same shall become due and payable or (ii)
fail to pay any interest on any Advance owing by it, or any fees
payable pursuant to Section 2.08, or any other amounts owing by it
under any Loan Document, in each case within five days after the due
date thereof; or
94
(b) any representation or warranty made by any Loan Party in
any Loan Document or any certificate delivered or required to be
delivered pursuant thereto shall prove to have been untrue in any
material respect on the date as of which made or deemed made; or
(c) either Borrower shall default in the due performance or
observance by it of any term, covenant or agreement required to be
performed or observed by it contained in Section 5.01(j), 5.02, 5.03(a)
or 5.04; or
(d) any Loan Party shall default in the due performance or
observance by it of any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice
thereof shall have been given to the U.S. Borrower by the
Administrative Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal
amount of at least $20,000,000 (or its equivalent in another currency)
either individually or in the aggregate (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made other than in connection with a sale of assets permitted by
Section 5.02(d), in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against any Loan Party or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
95
(g) one or more judgments or decrees shall be entered against
either Borrower or any of the Restricted Subsidiaries involving a
liability of $20,000,000 or more in the aggregate for all such
judgments and decrees for the Borrowers and their Restricted
Subsidiaries (to the extent not paid or fully covered by insurance
provided by a carrier not disputing coverage) and any such judgments or
decrees shall not have been satisfied, vacated, discharged or stayed or
bonded pending appeal within 60 days from the entry thereof; or
(h) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01, 3.04 or 5.01(k) shall for any reason cease to
be valid and binding on or enforceable against any Loan Party party to
it, or any such Loan Party shall so state in writing; or
(i) any Collateral Document after delivery thereof pursuant to
Section 3.01, 3.04, 3.05 or 5.01(k) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral
purported to be covered thereby; or
(j) any Change of Control shall occur; or
(k) (i) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such
standard or extension of any amortization period is sought or granted
under Section 412 of the Internal Revenue Code; any Plan is or shall
have been terminated or is the subject of termination proceedings under
ERISA (including the giving of written notice thereof); an event shall
have occurred or a condition shall exist in either case entitling the
PBGC to terminate any Plan or to appoint a trustee to administer any
Plan (including the giving of written notice thereof); any Plan shall
have an accumulated funding deficiency (whether or not waived); or any
Loan Party or any ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Plan under Section 409, 502(i), 502(1),
515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or
4975 of the Internal Revenue Code (including the giving of written
notice thereof); and (ii) there could result from any event or events
set forth in clause (i) of this Section 7.01(k) the imposition of a
lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a lien, security interest or
liability; and (iii) such lien, security interest or liability will or
would be reasonably likely to result in a liability of any Loan Party
or any ERISA Affiliate of $20,000,000 or more;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Appropriate
Borrower, declare the obligation of each Appropriate Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c) and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.02(b)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Majority Lenders, (A) by
notice to the Appropriate Borrower, declare the Notes, all interest thereon and
all other amounts payable under this Agreement and the other Loan Documents to
be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind,
96
all of which are hereby expressly waived by each Borrower and (B) by notice to
each party required under the terms of any agreement in support of which a
Standby Letter of Credit is issued, request that all Obligations under such
agreement be declared to be due and payable; PROVIDED, HOWEVER, that in the
event of an actual or deemed entry of an order for relief with respect to any
Loan Party or any of its Restricted Subsidiaries under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Borrower.
ARTICLE VIII ARTICLE VIII
THE ADMINISTRATIVE AGENT
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION.01. AUTHORIZATION AND
ACTION. Each Lender Party (in its capacities as a Lender, the Swing Line Bank
(if applicable), the Issuing Bank (if applicable) and a potential Hedge Bank)
hereby appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto. As to any matters not expressly provided
for by the Loan Documents (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
PROVIDED, HOWEVER, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender Party prompt notice of each notice given to it by either
Borrower pursuant to the terms of this Agreement.
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC..02.
ADMINISTRATIVE AGENT'S RELIANCE, Etc. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Administrative Agent:
(a) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Lender that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 9.07; (b) may consult with legal
counsel (including counsel for any Loan Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or oral) made in or
in connection with the Loan Documents; (d) shall not have any
97
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. CITICORP AND AFFILIATES.03. CITICORP AND
AFFILIATES. With respect to its Commitments, the Advances made by it and the
Notes issued to it, Citicorp shall have the same rights and powers under the
Loan Documents as any other Lender Party and may exercise the same as though it
were not the Administrative Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include Citicorp in its
individual capacity. Citicorp and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person who may do business with or own
securities of any Loan Party or any such Subsidiary, all as if Citicorp were not
the Administrative Agent and without any duty to account therefor to the Lender
Parties.
SECTION 8.04. LENDER PARTY CREDIT DECISION.04. LENDER PARTY
CREDIT DECISION. Each Lender Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender Party and
based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION.05. INDEMNIFICATION. (a) Each
Lender Party severally agrees to indemnify the Administrative Agent (to the
extent not promptly reimbursed by the Borrowers) from and against such Lender
Party's ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents; PROVIDED, HOWEVER, that no
Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that the Administrative Agent is not promptly reimbursed for
such costs and expenses by the Borrowers. For purposes of this Section 8.05(a),
the Lender Parties' respective ratable shares of any amount shall be determined,
at any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the
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respective Lender Parties, (ii) their respective Pro Rata Shares of the
aggregate Available LC Amount of all Letters of Credit outstanding at such time,
(iii) the aggregate unused portions of their respective Term A Commitments, Term
B Commitments and Term C Commitments at such time and (iv) their respective
Unused Revolving Credit Commitments at such time; PROVIDED that the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender Party's Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 8.05(a)
to the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Administrative Agent promptly upon demand for its ratable
share of any amount required to be paid by the Lender Party to the
Administrative Agent as provided herein shall not relieve any other Lender Party
of its obligation hereunder to reimburse the Administrative Agent for its
ratable share of such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse the Administrative Agent for such
other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05(a) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
(b) Each Revolving Credit Lender severally agrees to indemnify
the Issuing Bank (to the extent not promptly reimbursed by the Borrowers) from
and against such Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Issuing Bank under the Loan Documents; PROVIDED,
HOWEVER, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each such
Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrowers under Section
9.04, to the extent that the Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrowers. For purposes of this Section 8.05(b), the
Lender Parties' respective ratable shares of any amount shall be determined, at
any time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties,
(ii) their respective Pro Rata Shares of the aggregate Available LC Amount of
all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term A Commitments, Term B Commitments and Term C
Commitments at such time PLUS (iv) their respective Unused Revolving Credit
Commitments at such time; PROVIDED that the aggregate principal amount of Swing
Line Advances owing to the Swing Line Bank and of Letter of Credit Advances
owing to the Issuing Bank shall be considered to be owed to the Revolving Credit
Lenders ratably in accordance with their respective Revolving Credit
Commitments. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender Party's Commitment with respect to
the Facility under which such Defaulted Advance was required to have been made
shall be considered to be unused for purposes of this Section 8.05(b) to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse the Issuing Bank promptly upon
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demand for its ratable share of any amount required to be paid by the Lender
Parties to the Issuing Bank as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse the Issuing Bank for its
ratable share of such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse the Issuing Bank for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05(b) shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENTS.06. SUCCESSOR
ADMINISTRATIVE AGENTS. The Administrative Agent may resign as to any or all of
the Facilities at any time by giving written notice thereof to the Lender
Parties and the Borrowers and may be removed as to all of the Facilities at any
time with or without cause by the Majority Lenders. Upon any such resignation or
removal, the Majority Lenders shall, with the consent of the U.S. Borrower (such
consent not to be unreasonably withheld or delayed) have the right to appoint a
successor Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Majority Lenders and
consented to by the U.S. Borrower, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lender
Parties and with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld or delayed) appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent as to all of the Facilities and
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Majority Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Majority Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent as to such Facilities, other than with respect to
funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrowers in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
VIII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent as to any Facilities under this
Agreement.
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SECTION 8.07. ARRANGER, SYNDICATION AGENT AND DOCUMENTATION
AGENT.07. ARRANGER, SYNDICATION AGENT AND DOCUMENTATION AGENT. The Arranger
(both as defined herein and as defined in the Original Credit Agreement), the
Syndication Agent and the Documentation Agent shall have no duties or
obligations under this Agreement or the other Loan Documents in their respective
capacities as such Arranger, Syndication Agent and Documentation Agent.
ARTICLE IX
MISCELLANEOUS
ARTICLE IX MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC..01. AMENDMENTS, ETC. No
amendment or waiver of any provision of this Agreement or the Notes or any other
Loan Document, nor consent to any departure by either Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed (or, in
the case of the Collateral Documents, consented to) by the Majority Lenders, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; PROVIDED, HOWEVER, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders (other than any Lender that is, at such time, a Defaulting Lender), do
any of the following at any time: (i) waive any of the conditions specified in
Section 3.01, 3.04 or 3.05 or, in the case of the Initial Extension of Credit or
the Term C Borrowing, Section 3.02, (ii) change the number of Lenders or the
percentage of (x) the Commitments, (y) the aggregate unpaid principal amount of
the Advances or (z) the aggregate Available LC Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lenders or any of them to
take any action hereunder, (iii) release all or substantially all of the
Collateral in any transaction or series of related transactions, (iv) amend this
Section 9.01, (v) release the U.S. Borrower from its guaranty obligations or
reduce or limit the obligations of the U.S. Borrower under Section 6.01 of the
Guaranty or (vi) otherwise limit either Borrower's liability with respect to the
Obligations owing to the Administrative Agent and the Lender Parties under any
of the Loan Documents, (b) no amendment, waiver or consent shall, unless in
writing and signed by the Majority Lenders and each Appropriate Lender if
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest (other than a waiver of increased interest
following Default pursuant to Section 2.07(b)) on, the Notes held by such Lender
or any fees or other amounts payable hereunder to such Lender or (iii) postpone
any date fixed for any payment of interest on the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender or the final maturity
date of any Facility and (c) no amendment, waiver or consent shall, unless in
writing and signed by the Majority Lenders (all of which shall be Appropriate
Lenders), waive, reduce, postpone or change the order of application of, or
right to decline to receive, any repayment or prepayment of principal required
to be paid pursuant Sections 2.04 or 2.06; PROVIDED, HOWEVER, that no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Bank or
the Issuing Bank, as the case may be, in addition to the Lenders required above
to take such action, affect the rights or obligations of the Swing Line Bank or
of the Issuing Bank, as the case may be, under this Agreement; and PROVIDED
FURTHER that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement.
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SECTION 9.02. NOTICES, ETC..02. NOTICES, ETC. All notices and
other communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the U.S. Borrower, to its address at
2315 Adams Lane, P.O. Box 40, Henderson, KY 42420, Attn: William Greubel, with a
copy to KKR at 2800 Sand Hill Road, Suite 200, Menlo Park, CA 94205, Attn: Todd
Fisher; if to the Canadian Borrower, addressed to it c/o the U.S. Borrower at
the U.S. Borrower's address; if to any Initial Lender or the Initial Issuing
Bank, to its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender Party, to its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender Party; and
if to the Administrative Agent, to its address at 399 Park Avenue, New York, New
York 10043, Attention: James Garvin; or, as to either Borrower or the
Administrative Agent, to such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
U.S. Borrower and the Administrative Agent pursuant to this Section 9.02. All
such notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Sections 2.02, 2.03, 2.05, 2.06(a) and (c) and 2.09(a) and with
respect to selected Interest Periods in respect of Eurodollar Rate Advances
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 9.03. NO WAIVER; REMEDIES.03. NO WAIVER; REMEDIES. No
failure on the part of any Lender Party or the Administrative Agent to exercise,
and no delay in exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9.04. COSTS, EXPENSES.04. COSTS, EXPENSES. (a) Each
Borrower agrees to pay on demand (i) all costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent with respect thereto, with
respect to advising the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Administrative Agent and the Lender Parties in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender Party with respect thereto).
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(b) Each Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "INDEMNIFIED
PARTY") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby, including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Acquisition, the AKW Acquisition and any of
the other transactions contemplated hereby) by the Investor Group or any of
their Subsidiaries or Affiliates of all or any portion of the stock or
substantially all the assets of such Borrower or any of its Subsidiaries or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent, in
each case, such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 9.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by any Loan Party,
its directors, shareholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by either Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or
2.10(c), acceleration of the maturity of the Notes pursuant to Section 7.01 or
for any other reason, such Borrower shall, upon demand by such Lender Party
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party any amounts required
to compensate such Lender Party for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.10 and 2.12 and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. RIGHT OF SET-OFF.05. RIGHT OF SET-OFF. Upon (a)
the occurrence and during the continuance of any Event of Default and (b) the
making of the request or the granting of the
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consent specified by Section 7.01 to authorize the Administrative Agent to
declare the Notes due and payable pursuant to the provisions of Section 7.01,
each Lender Party and each of its respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and otherwise 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 Party or such Affiliate to or for the credit or the
account of either Borrower against any and all of the Obligations of such
Borrower now or hereafter existing under this Agreement and the Note or Notes
(if any) held by such Lender Party, irrespective of whether such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender Party agrees promptly to
notify such Borrower after any such set-off and application; PROVIDED, HOWEVER,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender Party and its respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender Party
and its respective Affiliates may have.
SECTION 9.06. BINDING EFFECT.06. BINDING EFFECT. This
Agreement shall become effective when it shall have been executed by each
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Initial Lender and the Initial Issuing Bank that such
Initial Lender and the Initial Issuing Bank has executed it and thereafter shall
be binding upon and inure to the benefit of each Borrower, the Administrative
Agent and each Lender Party and their respective successors and assigns, except
that neither Borrower shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lender Parties.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS.07. ASSIGNMENTS
AND PARTICIPATIONS. (a) Each Lender may, with the consent of the Administrative
Agent, and, so long as no Event of Default has occurred and is continuing, with
the consent of the Appropriate Borrower (in each case, such consent not to be
unreasonably withheld), assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); PROVIDED, however, that no
consent by either Borrower or the Administrative Agent shall be required for an
assignment to any Person who is an Affiliate of such Lender, and PROVIDED,
FURTHER, that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of one or more
Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement or all of a Lender's rights
and obligations with respect to its Term B Commitment, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 (or
integral multiples of $1,000,000 in excess thereof), (iii) each such assignment
shall be to an Eligible Assignee, and (vi) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and, other than in the case of an assignment
to an Affiliate of such Lender, a processing and recordation fee of $3,000;
PROVIDED, however, that the foregoing processing and recordation fee for any
assignment made pursuant to this Section 9.07 on or prior to March 31, 1998
which is, in the opinion of the Administrative Agent, associated with the
original syndication of the Facilities, will be waived.
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(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of either Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrowers, shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lender Parties shall treat each
Person whose name is recorded in the Register as a Lender Party hereunder for
all purposes of this
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Agreement. The Register shall be available for inspection by the Borrowers or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Appropriate Borrower. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Appropriate Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under a Facility
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder under such Facility, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1, A-2, A-3 or A-4 hereto,
as the case may be.
(f) The Issuing Bank may, with the consent of the
Administrative Agent, and, so long as no Event of Default shall have occurred
and be continuing, with the consent of the U.S. Borrower (such consent not to be
unreasonably withheld), assign to an Eligible Assignee all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; PROVIDED, HOWEVER, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); PROVIDED, HOWEVER, that (i) such Lender
Party's rights and obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender Party shall remain the holder of any such
Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative
Agent and the other Lender Parties shall continue to deal solely and directly
with such Lender Party in connection with such Lender Party's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest (other than increased interest
following Default pursuant to Section 2.07(b)) on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any Termination Date, or date fixed for payment of
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release the U.S. Borrower
from its Obligations under Article VI hereof, or all or substantially all of the
Collateral, and (vi) neither Borrower shall be subject to any increased
liability to any Lender Party pursuant to this Agreement by virtue of such
participation.
106
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; PROVIDED, HOWEVER, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
SECTION 9.08. REPLACEMENTS OF LENDERS UNDER CERTAIN
CIRCUMSTANCES9.08. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The U.S.
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.10 or 2.12, (b) is
affected in the manner described in Section 2.10(c) and as a result thereof any
of the actions described in such Section is required to be taken or (c) becomes
a Defaulting Lender, with a replacement bank or other financial institution,
PROVIDED that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Appropriate Borrower shall repay (or the
replacement bank or institution shall purchase, at par) all Loans and other
amounts (other than any disputed amounts), pursuant to Section 2.10, 2.11 or
2.12, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (v) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
9.07 (provided that such Borrower shall be obligated to pay the registration and
processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that either Borrower, the Administrative
Agent or any other Lender Party shall have against the replaced Lender.
SECTION 9.09. EXECUTION IN COUNTERPARTS.09. EXECUTION IN
COUNTERPARTS. This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
107
SECTION 9.10. NO LIABILITY OF THE ISSUING BANK.10. NO
LIABILITY OF THE ISSUING BANK. The U.S. Borrower assumes all risks of the acts
or omissions of any beneficiary or transferee of any Letter of Credit with
respect to its use of such Letter of Credit. Neither the Issuing Bank nor any of
its officers or directors shall be liable or responsible for: (a) the use that
may be made of any Letter of Credit or any acts or omissions of any beneficiary
or transferee in connection therewith; (b) the validity, sufficiency or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Issuing Bank against presentation of documents that
do not comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit;
or (d) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit, EXCEPT that the U.S. Borrower shall have a claim
against the Issuing Bank, and the Issuing Bank shall be liable to the U.S.
Borrower, to the extent of any direct, but not consequential, damages suffered
by the U.S. Borrower that the U.S. Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit comply with the terms of the
Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.11. CONFIDENTIALITY.11. CONFIDENTIALITY. The
Administrative Agent and each Lender shall hold all non-public information
furnished by or on behalf of either Borrower in connection with such Lender's
evaluation of whether to become a Lender hereunder or obtained by such Lender or
the Administrative Agent pursuant to the requirements of this Agreement
("CONFIDENTIAL INFORMATION"), in accordance with its customary procedure for
handling confidential information of this nature and (in the case of a Lender
that is a bank) in accordance with safe and sound banking practices. Neither the
Administrative Agent nor any Lender Party shall disclose any Confidential
Information to any Person without the consent of the Borrowers, other than (a)
to the Administrative Agent's or such Lender Party's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
Eligible Assignees and participants, and then only on a confidential basis, (b)
as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating such Lender Party or the Administrative Agent.
SECTION 9.12. JURISDICTION, ETC..12. JURISDICTION, ETC. (a)
Each of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any of the other Loan Documents to which
it is a party, 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 any
such New York State court or, to the extent permitted by law, in such federal
court. Each Borrower irrevocably consents to the service of any and all process
in any such action or proceeding by the mailing of copies of such process by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such Borrower at its address specified in Section 9.02 and
agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law or shall
108
limit the right to sue in any other jurisdiction. 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 any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.13. JUDGMENT.13. JUDGMENT. (a) If for the purposes
of obtaining judgment in any court it is necessary to convert a sum due
hereunder or under any of the other Loan Documents in U.S. dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase U.S. dollars with such other currency at Citibank on the Business Day
preceding that on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender Party or the Administrative Agent hereunder or under any
of the other Loan Documents held by such Lender Party shall, notwithstanding any
judgment in a currency other than U.S. dollars, be discharged only to the extent
that on the Business Day of receipt by such Lender Party or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender Party or the Administrative Agent (as the case may be) may
in accordance with normal banking procedures purchase U.S. dollars with such
other currency; if the U.S. dollars so purchased are less than the sum
originally due by such Borrower to such Lender Party or the Administrative Agent
(as the case may be) in U.S. dollars, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender Party
or the Administrative Agent (as the case may be) against such loss, and if the
U.S. dollars so purchased exceed the sum originally due by such Borrower to any
Lender Party or the Administrative Agent (as the case may be) in U.S. dollars,
such Lender Party or the Administrative Agent (as the case may be) agrees to
remit to such Borrower such excess.
SECTION 9.14. REFERENCE TO AND EFFECT ON THE LOAN
DOCUMENTS9.14. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Each Borrower
hereby confirms and agrees that each of the Term A Notes, the Term B Notes and
the Revolving Credit Notes, to the extent each is outstanding as of the date
hereof, is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, except that, upon the effectiveness of
this Agreement and on and after the date hereof, each reference in such Notes to
the "Credit Agreement", "thereunder", "thereof", "therein" or words of like
import referring to the Original Credit Agreement shall mean and be a reference
to this Agreement.
109
SECTION 9.15. GOVERNING LAW.15. GOVERNING LAW. This Agreement
and the Notes shall be governed by, and construed in accordance with, the laws
of the State of New York, United States.
SECTION 9.16. WAIVER OF JURY TRIAL.16. WAIVER OF JURY TRIAL.
Each of the Borrowers, the Administrative Agent and the Lender Parties
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Advances or the actions of the
Administrative Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof.
110
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ACCURIDE CORPORATION
By___________________________________________
Name:
Title:
ACCURIDE CANADA INC.
By____________________________________________
Name:
Title:
CITICORP USA, INC., as Administrative Agent and
Swing Line Bank
By____________________________________________
Name:
Title:
CITIBANK, N.A., as Initial Issuing Bank
By____________________________________________
Name:
Title:
SALOMON SMITH BARNEY INC., as Arranger
By____________________________________________
Name:
Title:
BANKERS TRUST COMPANY, as Syndication Agent
By___________________________________________
Name:
Title:
WELLS FARGO BANK N.A., as Documentation Agent
By___________________________________________
Name:
Title:
INITIAL LENDERS
BANK OF AMERICA CANADA
By___________________________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By__________________________________________
Name:
Title:
THE BANK OF NEW YORK
By_________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By_________________________________
Name:
Title:
BANKERS TRUST COMPANY
By_________________________________
Name:
Title:
CITIBANK CANADA
By_________________________________
Name:
Title:
CITICORP USA, INC.
By_________________________________
Name:
Title:
COMERICA BANK
By_________________________________
Name:
Title:
DEEPROCK & COMPANY
By: Eaton Vance Management
as Investment Advisor
By_________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By_________________________________
Name:
Title:
FIRST CHICAGO NBD BANK, CANADA
By_________________________________
Name:
Title:
FLEET NATIONAL BANK
By_________________________________
Name:
Title:
FUJI BANK CANADA
By_________________________________
Name:
Title:
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By_________________________________
Name:
Title:
KZH SOLEIL-2 LLC
By_________________________________
Name:
Title:
KZH STERLING LLC
By_________________________________
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By_________________________________
Name:
Title:
MERRILL LYNCH PRIME RATE
PORTFOLIO
By_________________________________
Name:
Title:
MERRILL LYNCH INCOME STRATEGIES
By_________________________________
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By_________________________________
Name:
Title:
NATIONAL WESTMINSTER BANK
PLC
By_________________________________
Name:
Title:
PRIME INCOME TRUST
By_________________________________
Name:
Title:
ROYAL BANK OF CANADA
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By_________________________________
Name:
Title:
THE SUMITOMO BANK OF CANADA
By_________________________________
Name:
Title:
WELLS FARGO BANK N.A.
By_________________________________
Name:
Title:
BANK LEUMI USA
By_________________________________
Name:
Title:
CITY NATIONAL BANK
By_________________________________
Name:
Title:
FIRSTAR BANK, N.A.
By_________________________________
Name:
Title:
NATIONSBANK, N.A.
By_________________________________
Name:
Title:
SOUTHERN PACIFIC BANK
By_________________________________
Name:
Title:
TORONTO DOMINION BANK
By_________________________________
Name:
Title:
DEAN WITTER INTERCAPITAL
By_________________________________
Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
As its Investment Manager
By_________________________________
Name:
Title:
EATON VANCE INSTITUTIONAL SENIOR LOAN TRUST
By: Eaton Vance Management as Investment
___________________________________________
Name:
Title:
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
By: Eaton Vance Management,
as Investment Advisor
___________________________________________
Name:
Title:
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management
as Investment Advisor
___________________________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
___________________________________________
Name:
Title:
CYPRESS
By_________________________________________
Name:
Title:
FIRST DOMINION CAPITAL, LLC
By_________________________________________
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By_________________________________________
Name:
Title:
KZH WATERSIDE LLC
By_________________________________________
Name:
Title:
HARCH CAPITAL MANAGEMENT, INC.
By_________________________________________
Name:
Title:
HIGHLAND CAPITAL MANAGEMENT, L.P.
By_________________________________________
Name:
Title:
IMPERIAL CREDIT INDUSTRIES
By_________________________________________
Name:
Title:
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management,
Inc. as attorney in fact
By_________________________________________
Name:
Title:
MASS. MUTUAL LIFE CO.
By_________________________________________
Name:
Title:
SANKATY ADVISORS, INC.
By_________________________________________
Name:
Title:
SUN AMERICA
By_________________________________________
Name:
Title:
PINEHURST TRADING, INC.
By_________________________________________
Name:
Title:
TRUST CO., OF THE WEST
By_________________________________________
Name:
Title:
$373,650,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 16, 1999
Among
ACCURIDE CORPORATION
and
ACCURIDE CANADA INC.
AS BORROWERS
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
AS INITIAL LENDERS, INITIAL ISSUING BANK AND SWING LINE BANK
and
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT
and
SALOMON SMITH BARNEY INC.
AS ARRANGER
and
BANKERS TRUST COMPANY
AS SYNDICATION AGENT
and
WELLS FARGO BANK N.A.
AS DOCUMENTATION AGENT
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms.............................................................................2
1.02. Computation of Time Periods......................................................................35
1.03. Accounting Terms.................................................................................36
1.04. Currency Equivalent..............................................................................36
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCESAND THE LETTERS OF CREDIT
2.01. The Advances.....................................................................................36
2.02. Making the Advances..............................................................................38
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit...............................40
2.04. Repayment of Advances............................................................................42
2.05. Termination or Reduction of the Commitments......................................................44
2.06. Prepayments......................................................................................45
2.07. Interest.........................................................................................47
2.08. Fees.............................................................................................48
2.09. Conversion of Advances...........................................................................49
2.10. Increased Costs, Etc.............................................................................49
2.11. Payments and Computations........................................................................51
2.12. Taxes............................................................................................53
2.13. Sharing of Payments, Etc.........................................................................57
2.14. Use of Proceeds..................................................................................58
2.15. Defaulting Lenders...............................................................................58
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to the Initial .............................................................60
3.02. Conditions Precedent to Each Borrowing and Issuance..............................................65
3.03. Determinations Under Sections 3.01, 3.04 and 3.05................................................65
3.04. Conditions Precedent to the Effectiveness of this Agreement......................................65
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of Each Borrower..................................................69
ARTICLE V
COVENANTS OF THE BORROWERS
5.01. Affirmative Covenants............................................................................74
5.02. Negative Covenants...............................................................................77
5.03. Reporting Requirements...........................................................................85
5.04. Financial Covenants..............................................................................88
ARTICLE VIGUARANTY
6.01. Guaranty.........................................................................................90
6.02. Guaranty Absolute................................................................................91
6.03. Waivers and Acknowledgments......................................................................92
6.04. Subrogation......................................................................................93
6.05. Continuing Guaranty; Assignments.................................................................94
ARTICLE VII
EVENTS OF DEFAULT
7.01. Events of Default................................................................................94
ARTICLE VIII
THE ADMINISTRATIVE AGENT
8.01. Authorization and Action.........................................................................97
8.02. Administrative Agent's Reliance, Etc.............................................................97
8.03. Citicorp and Affiliates..........................................................................98
8.04. Lender Party Credit Decision.....................................................................98
8.05. Indemnification..................................................................................98
8.06. Successor Administrative Agents.................................................................100
8.07. Arranger, Syndication Agent and Documentation Agent.............................................101
ARTICLE IXMISCELLANEOUS
9.01. Amendments, Etc.................................................................................101
9.02. Notices, Etc....................................................................................102
9.03. No Waiver; Remedies.............................................................................102
9.04. Costs, Expenses.................................................................................102
9.05. Right of Set-off................................................................................103
9.06. Binding Effect..................................................................................104
9.07. Assignments and Participations..................................................................104
9.08. Replacements of Lenders Under Certain Circumstances.............................................107
9.09. Execution in Counterparts.......................................................................107
9.10. No Liability of the Issuing Bank................................................................107
9.11. Confidentiality.................................................................................108
9.12. Jurisdiction, Etc...............................................................................108
9.13. Judgment........................................................................................109
9.14. Reference to and Effect on the Loan Documents...................................................109
9.15. Governing Law...................................................................................109
9.16. Waiver of Jury Trial............................................................................110
CONSENT
- -------
SCHEDULES
- ---------
Schedule I Commitments and Applicable Lending Offices
Schedule II Subsidiary Guarantors
Schedule 3.01(d) Original Credit Agreement Surviving Debt
Schedule 3.01(l) Restructuring Memorandum
Schedule 3.05(d) Surviving Debt
Schedule 4.01(a) Investor Group
Schedule 4.01(b) Subsidiaries
Schedule 4.01(d) Government and Third Party Approvals
Schedule 4.01(p) Existing Debt
Schedule 5.02(a) Existing Liens
Schedule 5.02(e) Existing Investments
EXHIBITS
- --------
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit A-4 Form of Term C Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Subsidiaries Guaranty
Exhibit F - Form of Opinion of Borrowers' Counsel
Exhibit G - Form of Opinion of Borrowers' General Counsel
Exhibit H - Form of Solvency Opinion
Exhibit I - Form of Solvency Certificate
Exhibit J - Form of Opinion of Kentucky Counsel
CONSENT
Dated as of April 16, 1999
Reference is made to the Amended and Restated Credit Agreement dated as
of April 16, 1999 (the "AMENDED AND RESTATED CREDIT AGREEMENT") among Accuride
Corporation, a Delaware corporation (the "U.S. BORROWER"), Accuride Canada Inc.,
a corporation organized and existing under the law of the Province of Ontario
(the "CANADIAN BORROWER", and together with the U.S. Borrower, the "BORROWERS"),
the banks, financial institutions and other institutional lenders party thereto
as "INITIAL LENDERS" thereunder, Citibank, N.A., as the Initial Issuing Bank,
Citicorp USA, Inc., as Swing Line Bank and as administrative agent (the
"ADMINISTRATIVE AGENT") for the Lender Parties (as defined therein), Salomon
Smith Barney Inc., as arranger for the Term C Facility (as defined therein),
Bankers Trust Company, as syndication agent for the Lender Parties, and Wells
Fargo Bank N. A, as documentation agent for the Lender Parties. The terms
defined in the Amended and Restated Credit Agreement and not otherwise defined
in this Consent are used in this Consent as defined in the Amended and Restated
Credit Agreement.
Each of the undersigned, as Subsidiary Guarantors under the
Subsidiaries Guaranty dated January 21, 1998 (the "SUBSIDIARIES GUARANTY") in
favor of the Administrative Agent and the other Secured Parties, hereby consents
to the Amended and Restated Credit Agreement and hereby confirms and agrees
that, notwithstanding the effectiveness of the Amended and Restated Credit
Agreement, (a) the Subsidiaries Guaranty is, and shall continue to be, in full
force and effect and is hereby ratified and confirmed in all respects, except
that, upon the effectiveness of the Amended and Restated Credit Agreement and on
and after the date hereof, each reference in the Subsidiaries Guaranty to the
"Credit Agreement", "thereunder", "thereof", "therein" or words of like import
referring to the Original Credit Agreement shall mean and be a reference to the
Amended and Restated Credit Agreement, and (b) the Subsidiaries Guaranty does,
and shall continue to, guaranty the payment of all the Guaranteed Obligations as
defined therein, including, without limitation, all Obligations of each of the
Borrowers under the Amended and Restated Credit Agreement and the Notes for or
in respect of the Term A Advances, the Term B Advances, the Term C Advances and
the Revolving Credit Advances from time to time.
ACCURIDE TEXAS INC.
By______________________________
Name:
Title:
ACCURIDE VENTURES, INC.
By______________________________
Name:
Title:
ACCURIDE KENTUCKY HOLDING
COMPANY
By______________________________
Name:
Title:
ACCURIDE HENDERSON FACILITIES
MANAGEMENT CORPORATION
By______________________________
Name:
Title:
ACCURIDE HENDERSON LIMITED
LIABILITY COMPANY
By______________________________
Name:
Title:
ACCURIDE TENNESSEE HOLDING
COMPANY
By______________________________
Name:
Title:
ACCURIDE COLUMBIA FACILITIES
MANAGEMENT CORPORATION
By______________________________
Name:
Title:
ACCURIDE COLUMBIA LIMITED PARTNERSHIP
By Accuride Ventures, Inc., its General
Partner
By______________________________
Name:
Title: