FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------
{X} QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
{ } TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission file number 001-11549
BLOUNT INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-0780521
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4520 Executive Park Drive 36116-1602
Montgomery, Alabama (Zip Code)
(Address of principal executive offices)
(334) 244-4000
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Outstanding at
Class of Common Stock September 30, 1999
--------------------- ------------------
$.01 Par Value 30,795,984 shares
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BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
INDEX
Page No.
------------
Part I. Financial Information
Condensed Consolidated Statements of Operations -
three months and nine months ended
September 30, 1999 and 1998 3
Condensed Consolidated Balance Sheets -
September 30, 1999 and December 31, 1998 4
Condensed Consolidated Statements of Cash Flows -
nine months ended September 30, 1999 and 1998 5
Condensed Consolidated Statements of
Changes in Stockholders' Equity (Deficit) -
three months and nine months ended
September 30, 1999 and 1998 6-7
Notes to Condensed Consolidated Financial Statements 8
Management's Discussion and Analysis 19
Part II. Other Information 26
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BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except share data)
Three Months Nine Months
Ended September 30, Ended September 30,
------------------- -------------------
1999 1998 1999 1998
- ---------------------------------- -------- -------- -------- --------
(Unaudited) (Unaudited)
Sales $219.6 $226.6 $587.9 $631.4
Cost of sales 156.1 155.9 419.4 437.1
- ---------------------------------- ------ ------ ------ ------
Gross profit 63.5 70.7 168.5 194.3
Selling, general and
administrative expenses 35.8 37.0 105.0 110.2
Merger expenses 72.4 0.1 74.6 0.1
- ---------------------------------- ------ ------ ------ ------
Income (loss) from operations (44.7) 33.6 (11.1) 84.0
Interest expense (13.4) (4.1) (20.5) (10.8)
Interest income 2.0 0.9 3.0 1.7
Other income, net 0.4 0.1 0.3 0.3
- ---------------------------------- ------ ------ ------ ------
Income (loss) before income taxes (55.7) 30.5 (28.3) 75.2
Provision (benefit) for income taxes (13.1) 11.3 (3.4) 28.5
- ---------------------------------- ------ ------ ------ ------
Income (loss) before extraordinary
loss (42.6) 19.2 (24.9) 46.7
Extraordinary loss on repurchase
of debt, net (2.0) (2.0)
- ---------------------------------- ------ ------ ------ ------
Net income (loss) $(42.6) $ 17.2 $(24.9) $ 44.7
- ---------------------------------- ====== ====== ====== ======
Basic earnings per share:
Income (loss) before extraordinary
loss $ (.79) $ .26 $(.37) $ .62
Extraordinary loss on repurchase
of debt, net (.03) (.03)
- ---------------------------------- ------ ------ ------ ------
Net income (loss) $ (.79) $ .23 $(.37) $ .60
- ---------------------------------- ====== ====== ====== ======
Diluted earnings per share:
Income (loss) before extraordinary
loss $ (.79) $ .26 $(.37) $ .61
Extraordinary loss on repurchase
of debt, net (.03) (.03)
- ---------------------------------- ------ ------ ------ ------
Net income (loss) $ (.79) $ .23 $(.37) $ .58
- ---------------------------------- ====== ====== ====== ======
Cash dividends declared per share:
Class A Common Stock $ .036 $ .071 $ .107
====== ====== ======
Class B Common Stock $ .034 $ .067 $ .101
- ---------------------------------- ====== ====== ======
The accompanying notes are an integral part of these statements.
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BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In millions, except share data)
September 30, December 31,
1999 1998
------------- ------------
(Unaudited)
ASSETS
- ------------------------------------------------
Current assets:
Cash and cash equivalents $ 30.3 $ 45.1
Accounts receivable, net of allowance for
doubtful accounts of $4.4 and $3.9 181.7 132.3
Inventories 124.3 121.0
Deferred income taxes 22.0 22.0
Other current assets 20.1 6.7
- ------------------------------------------------ -------- ------
Total current assets 378.4 327.1
Property, plant and equipment, net of accumulated
depreciation of $225.2 and $209.9 173.5 182.9
Cost in excess of net assets of acquired businesses, net 112.5 114.7
Other assets 71.1 44.1
- ------------------------------------------------ -------- ------
Total Assets $ 735.5 $668.8
- ------------------------------------------------ ======== ======
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
- ------------------------------------------------
Current liabilities:
Notes payable and current maturities of long-term debt $ 23.4 $ 0.7
Accounts payable 38.2 30.4
Accrued expenses 83.7 63.8
- ------------------------------------------------ -------- ------
Total current liabilities 145.3 94.9
Long-term debt, exclusive of current maturities 856.5 161.6
Deferred income taxes 13.0 13.0
Other liabilities 47.1 44.7
- ------------------------------------------------ -------- ------
Total liabilities 1,061.9 314.2
- ------------------------------------------------ -------- ------
Commitments and Contingent Liabilities
Stockholders' equity (deficit):
Common stock (par value $.01 per share, 100,000,000
shares authorized, 30,795,984 outstanding) 0.3
Common Stock: par value $.01 per share
Class A: 27,428,105 shares issued 0.3
Class B, convertible: 11,479,471 shares issued 0.1
Capital in excess of par value of stock 417.2 38.7
Retained earnings (deficit) (751.1) 348.9
Accumulated other comprehensive income 7.2 7.6
Less Class A treasury stock at cost, 1,852,302 shares (41.0)
- ------------------------------------------------ -------- ------
Total stockholders' equity (deficit) (326.4) 354.6
- ------------------------------------------------ -------- ------
Total Liabilities and Stockholders' Equity (Deficit) $ 735.5 $668.8
- ------------------------------------------------ ======== ======
The accompanying notes are an integral part of these statements.
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BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
Nine Months
Ended September 30,
-------------------
1999 1998
- ------------------------------------------------ -------- --------
(Unaudited)
Cash Flows From Operating Activities:
Net income (loss) $ (24.9) $ 44.7
Extraordinary loss 2.0
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation, amortization and other
noncash charges 24.8 23.0
Deferred income taxes (0.2)
Loss (gain) on disposals of property, plant
and equipment (0.4)
Changes in assets and liabilities:
Increase in accounts receivable (49.4) (27.5)
(Increase) decrease in inventories (3.3) 6.3
Increase in other assets (7.2) (0.3)
Increase (decrease) in accounts payable 7.0 (7.4)
Decrease in accrued expenses 22.4 4.0
Increase (decrease) in other liabilities 2.1 (0.8)
- ------------------------------------------------ --------- ------
Net cash provided by (used in) operating activities (28.9) 43.8
- ------------------------------------------------ --------- ------
Cash Flows From Investing Activities:
Proceeds from sales of property, plant and equipment 0.7 0.1
Purchases of property, plant and equipment (11.9) (14.9)
Acquisitions of businesses and product lines (0.6) (16.6)
Other (3.3)
- ------------------------------------------------ --------- ------
Net cash used in investing activities (15.1) (31.4)
- ------------------------------------------------ --------- ------
Cash Flows From Financing Activities:
Net decrease in short-term borrowings (0.3)
Issuance of long-term debt 697.4 149.4
Reduction of long-term debt (7.7) (137.3)
Decrease in restricted funds 0.2 0.4
Redemption of common stock (1,068.8)
Capital contribution 417.5
Dividends paid (7.8) (7.9)
Purchase of treasury stock (16.2)
Other (1.6) 4.3
- ------------------------------------------------ --------- ------
Net cash provided by (used in)
financing activities 29.2 (7.6)
- ------------------------------------------------ --------- ------
Net increase (decrease) in cash and cash equivalents (14.8) 4.8
Cash and cash equivalents at beginning of period 45.1 4.8
- ------------------------------------------------ --------- ------
Cash and cash equivalents at end of period $ 30.3 $ 9.6
- ------------------------------------------------ ========= ======
The accompanying notes are an integral part of these statements.
Page 5
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<TABLE>
BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES
IN STOCKHOLDERS' EQUITY (DEFICIT) (Unaudited)
(In millions)
<CAPTION>
Accumulated
Common Stock Capital Retained Other
Common ---------------- In Excess Earnings Comprehensive Treasury
Stock Class A Class B of Par (Deficit) Income Stock Total
------ ------- ------- --------- --------- ------------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THREE MONTHS AND NINE MONTHS ENDED
SEPTEMBER 30, 1999:
Balance, June 30, 1999 $ 0.3 $ 0.1 $ 38.8 $ 361.2 $ 7.2 $(40.1) $ 367.5
Net loss (42.6) (42.6)
Other comprehensive income (loss), net 0.0
---------
Comprehensive income (42.6)
Other (0.2) 0.2
Merger related activity (see Note 2):
Retirement of treasury stock (38.8) (1.1) 39.9
Redemption of common stock (0.3) (0.1) (1,068.4) (1,068.8)
Capital contribution $ 0.3 417.2 417.5
----- ----- ----- ------ --------- ------ ------ ---------
Balance, September 30, 1999 $ 0.3 $ 0.0 $ 0.0 $417.2 $ (751.1) $ 7.2 $ 0.0 $ (326.4)
===== ===== ===== ====== ========= ====== ====== =========
Balance, December 31, 1998 $ 0.3 $ 0.1 $ 38.7 $ 348.9 $ 7.6 $(41.0) $ 354.6
Net loss (24.9) (24.9)
Other comprehensive income (loss), net (0.4) (0.4)
---------
Comprehensive income (25.3)
Dividends (5.2) (5.2)
Other 0.1 (0.4) 1.1 0.8
Merger related activity (see Note 2):
Retirement of treasury stock (38.8) (1.1) 39.9
Redemption of common stock (0.3) (0.1) (1,068.4) (1,068.8)
Capital contribution $ 0.3 417.2 417.5
----- ----- ----- ------ --------- ------ ------ ---------
Balance, September 30, 1999 $ 0.3 $ 0.0 $ 0.0 $417.2 $ (751.1) $ 7.2 $ 0.0 $ (326.4)
===== ===== ===== ====== ========= ====== ====== =========
</TABLE>
Page 6
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<TABLE>
<CAPTION>
Accumulated
Common Stock Capital Other
Common ---------------- In Excess Retained Comprehensive Treasury
Stock Class A Class B of Par Earnings Income Stock Total
------ ------- ------- --------- --------- ------------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THREE MONTHS AND NINE MONTHS ENDED
SEPTEMBER 30, 1998:
Balance, June 30, 1998 $ 0.3 $ 0.1 $ 37.8 $ 320.8 $ 7.4 $(27.2) $ 339.2
Net income 17.2 17.2
Other comprehensive income (loss), net 0.4 0.4
---------
Comprehensive income 17.6
Dividends (2.6) (2.6)
Purchase of treasury stock (14.3) (14.3)
Other 0.1 (0.5) 2.2 1.8
----- ----- ------ --------- ----- ------ ---------
Balance, September 30, 1998 $ 0.3 $ 0.1 $ 37.9 $ 334.9 $ 7.8 $(39.3) $ 341.7
===== ===== ====== ========= ====== ====== =========
Balance, December 31, 1997 $ 0.3 $ 0.1 $ 37.7 $ 300.3 $ 7.0 $(29.3) $ 316.1
Net income 44.7 44.7
Other comprehensive income (loss), net 0.8 0.8
---------
Comprehensive income 45.5
Dividends (7.9) (7.9)
Purchase of treasury stock (16.2) (16.2)
Other 0.2 (2.2) 6.2 4.2
----- ----- ------ --------- ------ ------ ---------
Balance, September 30, 1998 $ 0.3 $ 0.1 $ 37.9 $ 334.9 $ 7.8 $(39.3) $ 341.7
===== ===== ====== ========= ====== ====== =========
</TABLE>
The accompanying notes are an integral part of these statements.
Page 7
<PAGE>
BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 In the opinion of management, the accompanying unaudited condensed
consolidated financial statements of Blount International, Inc. and Subsidiaries
("the Company") contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly the financial position at September 30,
1999 and the results of operations and cash flows for the periods ended
September 30, 1999 and 1998. These financial statements should be read in
conjunction with the notes to the financial statements included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998. The results of
operations for the periods ended September 30, 1999 and 1998 are not necessarily
indicative of the results to be expected for the twelve months ended December
31, 1999, due to the seasonal nature of certain of the Company's operations.
Certain amounts in the prior year's financial statements have been reclassified
to conform with the current year's presentation.
The Company's Internet home page is http://www.blount.com.
NOTE 2 On August 19, 1999, Blount International, Inc., a Delaware corporation,
merged with Red Dog Acquisition, Corp., a Delaware corporation and a wholly-
owned subsidiary of Lehman Brothers Merchant Banking Partners II L.P.
("Lehman"). The merger was completed pursuant to an Agreement and Plan of
Merger and Recapitalization dated as of April 18, 1999. Lehman is a $2.0
billion institutional merchant banking fund focused on investments in
established operating companies. This transaction was accounted for as a
recapitalization under generally accepted accounting principles. Accordingly,
the historical basis of the Company's assets and liabilities has not been
impacted by the transaction.
As a result of the proration and stock election procedures related to the
merger, approximately 1.5 million shares of Blount International's pre-merger
outstanding common stock were retained by existing shareholders and exchanged,
on a two-for-one basis, for 3.0 million shares of post-merger outstanding common
stock. All share and per share information for periods prior to the merger have
been restated to reflect the split. Lehman and certain members of Company
management made a capital contribution of approximately $417.5 million and
received approximately 27.8 million shares of post-merger outstanding common
stock. Lehman controls approximately 87% of the 30.8 million shares outstanding
following the merger.
The merger was financed by the equity contribution of $417.5 million, senior
term loans of $400 million and senior subordinated notes of $325 million issued
by Blount, Inc., a wholly-owned subsidiary of Blount International, Inc. The
new credit facilities include two term loan facilities in an aggregate principal
amount of $400.0 million, comprised of a $60.0 million Tranche A Term Loan
($55.0 million of which was outstanding at September 30, 1999) and a $340.0
million Tranche B Term Loan, and a $100.0 million revolving credit facility.
The Tranche A Term Loan has quarterly repayments that increase periodically from
$2,000,000 beginning on December 31, 1999 to $3,750,000 by the maturity date,
June 30, 2004. The Tranche B Term Loan has quarterly repayments of $850,000
beginning on December 31, 1999 until June 30, 2005 and then increasing to
$80,000,000 on September 30, 2005 until March 31, 2006, with a final payment of
$80,450,000 on the maturity date, June 30, 2006. The Company and all of the
Company's domestic subsidiaries guarantee Blount, Inc.'s obligations under the
debt issued to finance the merger. Blount, Inc.'s obligations and its domestic
subsidiaries' guarantee obligations under the new credit facilities are
Page 8
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collateralized by a first priority security interest in substantially all of
their respective assets. The Company's guarantee obligations in respect of the
new credit facilities are collateralized by a pledge of all of Blount, Inc.'s
capital stock. The 7.0% notes share equally and ratably in certain of the
collateral securing the new credit facilities.
Long-term debt at September 30, 1999 and December 31, 1998 consists of the
following:
September 30, December 31,
1999 1998
- ------------------------------------------------ ------------- ------------
13% Senior subordinated notes, maturing on
August 1, 2009 $325.0
7% Senior notes (net of discount), maturing on
June 15, 2005 148.7 $148.6
Senior term loans:
Tranche A, maturing at various dates through
June 30, 2004, interest at 8.63% at
September 30, 1999 55.0
Tranche B, maturing at various dates through
June 30, 2006, interest at 9.38% at
September 30, 1999 340.0
Industrial development revenue bonds payable,
maturing between 1999 and 2013, interest at varying
rates (principally 3.95% at September 30, 1999) 10.5 13.1
Other long-term debt, interest at 9.25% at
September 30, 1999 0.4 0.4
Lease purchase obligations, interest at varying
rates, payable in installments to 2000 0.3 0.2
- ------------------------------------------------ ------ ------
879.9 162.3
Less current maturities (23.4) (0.7)
- ------------------------------------------------ ------ ------
$856.5 $161.6
- ------------------------------------------------ ====== ======
In August 1999, the Company replaced its $150 million revolving credit agreement
expiring April 1, 2002, with a new $100 million revolving credit agreement
expiring on August 19, 2004. At September 30, 1999, no amounts were outstanding
under the new $100 million revolving credit agreement. The $100 million
revolving credit agreement provides for interest rates to be determined at the
time of borrowings based on a choice of formulas as specified in the agreement.
The interest rates and commitment fees may vary based on the ratio of total debt
to consolidated earnings before interest, taxes, depreciation, and amortization
(EBITDA) as defined in the agreement. The new agreement contains covenants
relating to indebtedness, liens, mergers, consolidations, disposals of property,
payment of dividends, capital expenditures, investments, optional payments and
modifications of the agreements, transactions with affiliates, sales and
leasebacks, changes in fiscal periods, negative pledges, subsidiary
distributions, lines of business, hedge agreements, and activities of the
Company and requires the Company to maintain certain leverage and interest
coverage ratios.
NOTE 3 During the first quarter of 1999, the Company donated art with a book
value of $1.5 million and an appraised value of $4.7 million to The Blount
Foundation, Inc., a charitable foundation. Winton M. Blount is a director of
The Blount Foundation, Inc. On an after-tax basis, this donation had no
significant effect on net income.
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NOTE 4 The Company has two Rabbi Trusts established which require the funding
of certain executive benefits upon a change in control or threatened change in
control such as the merger described in Note 2 of Notes to Condensed
Consolidated Financial Statements. During the second quarter of 1999,
approximately $10.4 million was funded under these trusts with approximately
$7.1 million coming from the proceeds of officer life insurance loans and $3.3
million from general corporate funds. At September 30, 1999, approximately
$20.9 million was held in these trusts and is included in "Other assets" in the
Condensed Consolidated Balance Sheet.
The unused proceeds from industrial development revenue bonds are held in trust
and released as qualified capital expenditures are made. At September 30, 1999,
approximately $3.3 million was held in trust and is included in "Cash and cash
equivalents" in the Condensed Consolidated Balance Sheet. On October 4, 1999,
the Company redeemed all of its outstanding industrial development revenue bonds
in the amount of $10.5 million using the $3.3 million held in trust and $7.2
million of cash.
NOTE 5 Inventories consist of the following (in millions):
September 30, December 31,
1999 1998
--------------------------------- ------------- ------------
Finished goods $ 65.7 $ 73.6
Work in process 26.5 19.3
Raw materials and supplies 32.1 28.1
--------------------------------- ------ ------
$124.3 $121.0
--------------------------------- ====== ======
NOTE 6 Segment information is as follows (in millions):
Three Months Nine Months
Ended September 30, Ended September 30,
------------------- -------------------
1999 1998 1999 1998
- ---------------------------------- -------- -------- -------- --------
Sales:
Outdoor Products $ 82.7 $ 77.8 $243.2 $236.2
Sporting Equipment 98.5 94.1 240.0 217.3
Industrial and Power Equipment 38.4 54.7 104.7 177.9
- ---------------------------------- ------ ------ ------ ------
$219.6 $226.6 $587.9 $631.4
- ---------------------------------- ====== ====== ====== ======
Operating income (loss):
Outdoor Products $ 17.9 $ 17.4 $ 53.6 $ 50.6
Sporting Equipment 13.6 14.9 28.7 24.3
Industrial and Power Equipment (0.7) 5.6 (5.7) 24.1
- ---------------------------------- ------ ------ ------ ------
Operating income from segments 30.8 37.9 76.6 99.0
Corporate office expenses (3.1) (4.2) (13.1) (14.9)
Merger expenses (72.4) (0.1) (74.6) (0.1)
- ---------------------------------- ------ ------ ------ ------
Income (loss) from operations (44.7) 33.6 (11.1) 84.0
Interest expense (13.4) (4.1) (20.5) (10.8)
Interest income 2.0 0.9 3.0 1.7
Other income, net 0.4 0.1 0.3 0.3
- ---------------------------------- ------ ------ ------ ------
Income (loss) before income taxes $(55.7) $ 30.5 $(28.3) $ 75.2
- ---------------------------------- ====== ====== ====== ======
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NOTE 7 Under the provisions of Washington State environmental laws, the
Washington State Department of Ecology ("WDOE") has notified the Company that it
is one of many companies named as a Potentially Liable Party ("PLP"), for the
Pasco Sanitary Landfill site, Pasco, Washington ("the Site"). Although the
clean-up costs are believed to be substantial, accurate estimates will not be
available until the environmental studies have been completed at the Site.
However, based upon the total documented volume of waste sent to the Site, the
Company's waste volume compared to that total waste volume should cause the
Company to be classified as a "de minimis" PLP. In July 1992, the Company and
thirty-eight other PLPs entered into an Administrative Agreed Order with WDOE to
perform a Phase I Remedial Investigation at the Site. In October 1994, WDOE
issued an administrative Unilateral Enforcement Order to all PLPs to complete a
Phase II Remedial Investigation and Feasibility Study ("RI/FS") under the Scope
of Work established by WDOE. The results of the RI/FS investigation are
expected in the near future. The Company is unable to determine, at this time,
the level of clean-up demands that may be ultimately placed on it. Management
believes that, given the number of PLPs named with respect to the Site and their
financial condition, the Company's potential response costs associated with the
Site will not have a material adverse effect on consolidated financial condition
or operating results.
The Company is a defendant in a number of product liability lawsuits, some of
which seek significant or unspecified damages, involving serious personal
injuries for which there are retentions or deductible amounts under the
Company's insurance policies. In addition, the Company is a party to a number
of other suits arising out of the conduct of its business. While there can be
no assurance as to their ultimate outcome, management does not believe these
lawsuits will have a material adverse effect on consolidated financial condition
or operating results.
See Note 7 to the Consolidated Financial Statements included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998 for other
commitments and contingencies of the Company which have not changed
significantly since that date.
NOTE 8 Income taxes paid during the nine months ended September 30, 1999 and
1998 were $11.7 million and $31.7 million. Interest paid during the nine months
ended September 30, 1999 and 1998 was $39.5 million and $15.5 million.
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NOTE 9 For the three months and nine months ended September 30, 1999 and 1998,
net income and shares used in the earnings per share ("EPS") computations were
the following amounts:
Three Months Nine Months
Ended September 30, Ended September 30,
---------------------- ----------------------
1999 1998 1999 1998
- ------------------------------ ---------- ---------- ---------- ----------
Income (loss) before
extraordinary loss $ (42.6) $ 19.2 $ (24.9) $ 46.7
Extraordinary loss on
repurchase of debt, net (2.0) (2.0)
- ------------------------------ ---------- ---------- ---------- ----------
Net income (loss) $ (42.6) $ 17.2 $ (24.9) $ 44.7
- ------------------------------ ========== ========== ========== ==========
Shares:
Basic EPS - weighted average
common shares outstanding 53,667,708 74,660,816 67,315,172 74,953,664
Dilutive effect of stock
options 1,987,006 2,204,876
- ------------------------------ ---------- ---------- ---------- ----------
Diluted EPS 53,667,708 76,647,822 67,315,172 77,158,540
- ------------------------------ ========== ========== ========== ==========
Options to purchase 1,121,200 shares were granted during the first quarter of
1999 under the 1998 Blount Long-Term Executive Stock Option Plan. As a result
of the merger described in Note 2, all outstanding options were canceled through
a payment associated with the merger. During the third quarter of 1999, the
Company's Board of Directors adopted a new stock option plan under which
options, either incentive stock options or nonqualified stock options, to
purchase the Company's Common Stock may be granted to employees, directors, and
other persons who perform services for the Company. The number of shares which
may be issued under the plan may not exceed 2,875,000 shares. The option price
per share for incentive stock options may not be less than 100% of the average
closing sale price for ten consecutive trading days ended on the trading day
immediately prior to the date of grant. The option price for each grant of a
nonqualified stock option shall be established on the date of grant and may be
less than the fair market value of one share of Common Stock on the date of
grant. During the third quarter of 1999, options were granted to purchase
2,301,302 shares at the price of $15 per share.
NOTE 10 The following consolidating financial information sets forth condensed
consolidating statements of operations, and the balance sheets and cash flows of
Blount International, Inc., Blount, Inc., the Guarantor Subsidiaries and the
Non-Guarantor Subsidiaries (in millions).
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<TABLE>
<CAPTION>
BLOUNT INTERNATIONAL, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED FINANCIAL INFORMATION
For The Nine Months
Ended September 30, 1999
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
- -----------------------
Sales $ 310.2 $250.1 $121.8 $ (94.2) $587.9
Cost of sales 241.7 187.1 83.4 (92.8) 419.4
-------- ------ ------ --------- ------
Gross profit 68.5 63.0 38.4 (1.4) 168.5
Selling, general and administrative expenses $ 0.8 46.8 29.3 28.1 105.0
Merger expenses 69.5 5.1 74.6
------ -------- ------ ------ --------- ------
Income (loss) from operations (70.3) 16.6 33.7 10.3 (1.4) (11.1)
Interest expense (30.9) (0.1) 10.5 (20.5)
Interest income 1.2 1.2 10.9 0.2 (10.5) 3.0
Other income (expense), net 0.5 0.3 (0.5) 0.3
------ -------- ------ ------ --------- ------
Income (loss) before income taxes (69.1) (12.6) 44.8 10.0 (1.4) (28.3)
Provision (benefit) for income taxes (18.5) (6.8) 17.0 4.9 (3.4)
------ -------- ------ ------ --------- ------
Income (loss) before earnings of
affiliated companies (50.6) (5.8) 27.8 5.1 (1.4) (24.9)
Equity in earnings of affiliated companies, net 25.7 31.5 3.4 (60.6)
------ -------- ------ ------ --------- ------
Net income $(24.9) $ 25.7 $ 31.2 $ 5.1 $ (62.0) $(24.9)
====== ======== ====== ====== ========= ======
For The Three Months
Ended September 30, 1999
STATEMENT OF OPERATIONS
- -----------------------
Sales $ 109.9 $ 99.1 $ 43.1 $ (32.5) $219.6
Cost of sales 84.9 73.6 29.9 (32.3) 156.1
-------- ------ ------ --------- ------
Gross profit 25.0 25.5 13.2 (0.2) 63.5
Selling, general and administrative expenses $ 0.2 14.0 11.9 9.7 35.8
Merger expenses 69.5 2.9 72.4
------ -------- ------ ------ --------- ------
Income (loss) from operations (69.7) 8.1 13.6 3.5 (0.2) (44.7)
Interest expense (16.9) 3.5 (13.4)
Interest income 1.2 0.4 3.8 0.1 (3.5) 2.0
Other income (expense), net 0.6 0.1 (0.3) 0.4
------ -------- ------ ------ --------- ------
Income (loss) before income taxes (68.5) (7.8) 17.5 3.3 (0.2) (55.7)
Provision (benefit) for income taxes (18.3) (2.9) 6.6 1.5 (13.1)
------ -------- ------ ------ --------- ------
Income (loss) before earnings of
affiliated companies (50.2) (4.9) 10.9 1.8 (0.2) (42.6)
Equity in earnings of affiliated
companies, net 7.6 12.5 1.2 (21.3)
------ -------- ------ ------ --------- ------
Net income $(42.6) $ 7.6 $ 12.1 $ 1.8 $ (21.5) $(42.6)
====== ======== ====== ====== ========= ======
</TABLE>
Page 13
<PAGE>
<TABLE>
<CAPTION>
September 30, 1999
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET
- -------------
ASSETS
Current assets:
Cash and cash equivalents $ 24.3 $ (0.4) $ 6.4 $ 30.3
Accounts receivable, net $ 1.2 70.9 92.7 16.9 181.7
Intercompany receivables 548.8 161.1 $ (709.9) --
Inventories 45.7 62.2 16.4 124.3
Deferred income taxes 22.0 22.0
Other current assets 18.0 0.7 1.4 20.1
------ -------- ------ ------ --------- ---------
Total current assets 1.2 729.7 316.3 41.1 (709.9) 378.4
Investments in affiliated companies 381.8 738.4 59.0 0.2 (1,179.4) --
Property, plant and equipment, net 73.8 74.4 25.3 173.5
Cost in excess of net assets of acquired
businesses, net 33.1 72.2 7.2 112.5
Intercompany notes receivable 260.0 (260.0) --
Other assets 66.9 2.2 2.0 71.1
------ -------- ------ ------ --------- ---------
Total Assets $383.0 $1,641.9 $784.1 $ 75.8 $(2,149.3) $ 735.5
====== ======== ====== ====== ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Notes payable and current maturities
of long-term debt $ 21.1 $ 2.3 $ 23.4
Accounts payable $ 0.1 16.0 17.7 $ 4.4 38.2
Intercompany payables 709.3 0.6 $ (709.9) --
Accrued expenses 54.4 21.4 7.9 83.7
------ -------- ------ ------ --------- ---------
Total current liabilities 709.4 91.5 41.4 12.9 (709.9) 145.3
Long-term debt, exclusive of current maturities 856.3 0.2 856.5
Intercompany notes payable 259.9 0.1 (260.0) --
Deferred income taxes, exclusive of
current portion 11.9 1.1 13.0
Other liabilities 40.5 5.8 0.8 47.1
------ -------- ------ ------ --------- ---------
Total liabilities 709.4 1,260.1 47.2 15.1 (969.9) 1,061.9
Stockholders' equity (deficit) (326.4) 381.8 736.9 60.7 (1,179.4) (326.4)
------ -------- ------ ------ --------- ---------
Total Liabilities and
Stockholders' Equity (Deficit) $383.0 $1,641.9 $784.1 $ 75.8 $(2,149.3) $ 735.5
====== ======== ====== ====== ========= =========
</TABLE>
Page 14
<PAGE>
<TABLE>
<CAPTION>
For The Nine Months
Ended September 30, 1999
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF CASH FLOWS
- -----------------------
Net cash provided by (used in) operating
activities $ (26.9) $ 31.9 $(11.2) $ 4.9 $ (27.6) $ (28.9)
--------- -------- ------ ------ --------- ---------
Cash flows from investing activities:
Proceeds from sales of property, plant
and equipment 0.6 0.1 0.7
Purchases of property, plant and equipment (4.1) (5.1) (2.7) (11.9)
Acquisitions of product lines (0.6) (0.6)
Other (3.3) (3.3)
--------- -------- ------ ------ --------- ---------
Net cash used in investing activities -- (6.8) (5.7) (2.6) -- (15.1)
--------- -------- ------ ------ --------- ---------
Cash flows from financing activities:
Issuance of long-term debt 697.4 697.4
Reduction of long-term debt (7.5) (0.2) (7.7)
Decrease in restricted funds 0.2 0.2
Redemption of common stock (1,068.8) (1,068.8)
Capital contribution 417.5 417.5
Dividends paid (7.8) (25.0) (2.6) 27.6 (7.8)
Advances from (to) affiliated companies 685.0 (703.0) 18.0 --
Other 1.0 (2.6) (1.6)
--------- -------- ------ ------ --------- ---------
Net cash provided by (used in) financing
activities 26.9 (40.5) 18.0 (2.8) 27.6 29.2
--------- -------- ------ ------ --------- ---------
Net increase (decrease) in cash and cash
equivalents -- (15.4) 1.1 (0.5) -- (14.8)
Cash and cash equivalents at beginning of period 39.7 (1.5) 6.9 45.1
--------- -------- ------ ------ --------- ---------
Cash and cash equivalents at end of period $ -- $ 24.3 $ (0.4) $ 6.4 $ -- $ 30.3
========= ======== ====== ====== ========= =========
</TABLE>
Page 15
<PAGE>
<TABLE>
<CAPTION>
December 31, 1998
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET
- -------------
ASSETS
Current assets:
Cash and cash equivalents $ 39.7 $ (1.5) $ 6.9 $ 45.1
Accounts receivable, net 58.0 61.2 13.1 132.3
Intercompany receivables 154.5 3.3 $ (157.8) --
Inventories 54.4 54.0 12.6 121.0
Deferred income taxes 22.1 (0.1) 22.0
Other current assets 3.7 2.1 0.9 6.7
-------- ------ ------ --------- ------
Total current assets 177.9 270.3 36.8 (157.9) 327.1
Investments in affiliated companies $381.5 709.3 58.2 0.2 (1,149.2) --
Property, plant and equipment, net 80.6 75.6 26.7 182.9
Cost in excess of net assets of acquired
businesses, net 34.2 73.1 7.4 114.7
Intercompany notes receivable 260.0 (260.0) --
Other assets 39.5 2.3 2.3 44.1
------ -------- ------ ------ --------- ------
Total Assets $381.5 $1,041.5 $739.5 $ 73.4 $(1,567.1) $668.8
====== ======== ====== ====== ========= ======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable and current maturities
of long-term debt $ 0.3 $ 0.2 $ 0.2 $ 0.7
Accounts payable 14.5 11.6 4.3 30.4
Intercompany payables $ 24.3 133.5 $ (157.8) --
Accrued expenses 2.6 41.6 13.2 6.4 63.8
Deferred income taxes 0.1 (0.1) --
------ -------- ----- ----- --------- ------
Total current liabilities 26.9 189.9 25.0 11.0 (157.9) 94.9
Long-term debt, exclusive of current
maturities 159.5 2.1 161.6
Intercompany notes payable 259.9 0.1 (260.0) --
Deferred income taxes, exclusive of
current portion 12.0 1.0 13.0
Other liabilities 38.7 5.3 0.7 44.7
------ -------- ------ ------ --------- ------
Total liabilities 26.9 660.0 32.4 12.8 (417.9) 314.2
Stockholders' equity 354.6 381.5 707.1 60.6 (1,149.2) 354.6
------ -------- ------ ------ --------- ------
Total Liabilities and
Stockholders' Equity $381.5 $1,041.5 $739.5 $ 73.4 $(1,567.1) $668.8
====== ======== ====== ====== ========= ======
</TABLE>
Page 16
<PAGE>
<TABLE>
<CAPTION>
For The Nine Months
Ended September 30, 1998
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME
- -------------------
Sales $ 366.7 $237.8 $123.2 $ (96.3) $631.4
Cost of sales 268.7 174.8 89.0 (95.4) 437.1
-------- ------ ------ --------- ------
Gross profit 98.0 63.0 34.2 (0.9) 194.3
Selling, general and administrative expenses $ 1.2 52.2 30.9 25.9 110.2
Merger expenses 0.1 0.1
------ -------- ------ ------ --------- ------
Income (loss) from operations (1.3) 45.8 32.1 8.3 (0.9) 84.0
Interest expense (20.8) (0.1) (0.1) 10.2 (10.8)
Interest income 1.1 10.5 0.3 (10.2) 1.7
Other income (expense), net 0.3 0.4 (0.4) 0.3
------ -------- ------ ------ --------- ------
Income (loss) before income taxes (1.3) 26.4 42.9 8.1 (0.9) 75.2
Provision (benefit) for income taxes (0.5) 9.1 16.3 3.6 28.5
------ -------- ------ ------ --------- ------
Income (loss) before extraordinary loss and
earnings of affiliated companies (0.8) 17.3 26.6 4.5 (0.9) 46.7
Extraordinary loss on repurchase of debt, net (2.0) (2.0)
Equity in earnings of affiliated companies, net 45.5 30.2 3.0 (78.7) --
------ -------- ------ ------ --------- ------
Net income $ 44.7 $ 45.5 $ 29.6 $ 4.5 $ (79.6) $ 44.7
====== ======== ====== ====== ========= ======
For The Three Months
Ended September 30, 1998
STATEMENT OF INCOME
- -------------------
Sales $ 118.8 $100.2 $ 40.4 $ (32.8) $226.6
Cost of sales 88.1 71.6 28.6 (32.4) 155.9
-------- ------ ------ --------- ------
Gross profit 30.7 28.6 11.8 (0.4) 70.7
Selling, general and administrative expenses $ 0.1 16.0 12.0 8.9 37.0
Merger expenses 0.1 0.1
------ -------- ------ ------ --------- ------
Income (loss) from operations (0.2) 14.7 16.6 2.9 (0.4) 33.6
Interest expense (7.8) 3.7 (4.1)
Interest income 0.6 3.9 0.1 (3.7) 0.9
Other income (expense), net 0.1 0.1 (0.1) 0.1
------ -------- ------ ------ --------- ------
Income (loss) before income taxes (0.2) 7.6 20.6 2.9 (0.4) 30.5
Provision (benefit) for income taxes (0.1) 2.3 7.8 1.3 11.3
------ -------- ------ ------ --------- ------
Income (loss) before extraordinary loss and
earnings of affiliated companies (0.1) 5.3 12.8 1.6 (0.4) 19.2
Extraordinary loss on repurchase of debt, net (2.0) (2.0)
Equity in earnings of affiliated companies, net 17.3 14.0 1.0 (32.3) --
------ -------- ------ ------ --------- ------
Net income $ 17.2 $ 17.3 $ 13.8 $ 1.6 $ (32.7) $ 17.2
====== ======== ====== ====== ========= ======
</TABLE>
Page 17
<PAGE>
<TABLE>
<CAPTION>
For The Nine Months
Ended September 30, 1998
Blount Non-
International, Blount, Guarantor Guarantor
Inc. Inc. Subsidiaries Subsidiaries Eliminations Consolidated
-------------- ------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF CASH FLOWS
- -----------------------
Net cash provided by (used in) operating
activities $ (0.8) $ 27.9 $ 12.0 $ 5.7 $ (1.0) $ 43.8
------ -------- ------ ------ --------- ------
Cash flows from investing activities:
Proceeds from sales of property, plant
and equipment 0.1 0.1
Purchases of property, plant and equipment (8.3) (4.2) (2.4) (14.9)
Acquisition of businesses (16.6) (16.6)
------ -------- ------ ------ --------- ------
Net cash used in investing activities -- (24.9) (4.2) (2.3) -- (31.4)
------ -------- ------ ------ --------- ------
Cash flows from financing activities:
Net reduction in short-term borrowings (0.3) (0.3)
Issuance of long-term debt 149.4 149.4
Reduction of long-term debt (136.8) (0.5) (137.3)
Decrease in restricted funds 0.4 0.4
Dividends paid (7.9) (1.0) 1.0 (7.9)
Purchase of treasury stock (16.2) (16.2)
Advances from (to) affiliated companies 20.6 (10.5) (10.1) --
Other 4.3 4.3
------ -------- ------ ------ --------- ------
Net cash provided by (used in) financing
activities 0.8 2.5 (10.1) (1.8) 1.0 (7.6)
------ -------- ------ ------ --------- ------
Net increase (decrease) in cash and cash
equivalents -- 5.5 (2.3) 1.6 -- 4.8
Cash and cash equivalents at beginning of period 2.2 (1.6) 4.2 4.8
------ -------- ------ ------ --------- ------
Cash and cash equivalents at end of period $ -- $ 7.7 $ (3.9) $ 5.8 $ -- $ 9.6
====== ======== ====== ====== ========= ======
</TABLE>
Page 18
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
Operating Results
Sales for the three months and nine months ended September 30, 1999, were $219.6
million and $587.9 million compared to $226.6 million and $631.4 million for the
comparable periods of the prior year. Net loss for the third quarter and first
nine months of 1999 was $42.6 million ($.79 per diluted share) and $24.9 million
($.37 per diluted share) compared to net income of $17.2 million ($.23 per
diluted share) and $44.7 million ($.58 per diluted share) for the comparable
periods of the prior year. Last year's third quarter and first nine months
included an extraordinary loss on repurchase of debt of $2.0 million ($.03 per
diluted share). These results reflect a significant reduction in sales and
operating income from the Industrial and Power Equipment segment due to adverse
market conditions, manufacturing problems at the Prentice facility which
adversely affected the ability to ship products, and costs associated with the
plant consolidation and realignment program, and improved results from the
Sporting Equipment segment and the Outdoor Products segment. Corporate expenses
include expenses of $72.4 million and $74.6 million during the third quarter and
first nine months of 1999 associated with the merger and a donation of art with
a book value of $1.5 million in the first quarter (see Notes 2 and 3 of Notes to
Condensed Consolidated Financial Statements). Excluding the expenses associated
with the merger and the donation of art, selling, general and administrative
expenses decreased by $1.2 million and $6.7 million during the third quarter and
first nine months of 1999, respectively, as compared to the same periods in the
prior year. These decreases reflect cost reduction efforts at each segment and
the corporate office. Higher interest expense during the three months and nine
months ended September 30, 1999, reflects higher long-term debt levels during
the current year resulting from the transaction described in Note 2 of Notes to
Condensed Consolidated Financial Statements. The Company's effective income tax
rate was lower by 26.1% in the first nine months of 1999 as a result of the
donation of art and the non-deductible portion of the expenses associated with
the sale of the Company. The principal reasons for these results and the status
of the Company's financial condition are set forth below and should be read in
conjunction with the Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
Sales for the Outdoor Products segment for the third quarter and first nine
months of 1999 were $82.7 million and $243.2 million compared to $77.8 million
and $236.2 million during the third quarter and first nine months of 1998.
Operating income was $17.9 million and $53.6 million during the third quarter
and first nine months of 1999 compared to $17.4 million and $50.6 million in the
comparable periods of the prior year. Sales reflect a higher volume of sales of
lawn mowers and accessories and from flat to slightly lower sales of other
product lines as indicated in the following table (in millions):
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
-------------------------- --------------------------
% Increase % Increase
(Decrease) (Decrease)
1999 1998 in 1999 1999 1998 in 1999
- --------------------------- ------ ------ ---------- ------ ------ ----------
<S> <C> <C> <C> <C> <C> <C>
Chain saw components $ 53.2 $ 50.6 5.1% $148.1 $148.3 (0.1)%
Lawn mowers and accessories 20.0 17.2 16.3 65.3 56.8 15.0
Other 9.5 10.0 (5.0) 29.8 31.1 (4.2)
- --------------------------- ------ ------ ------ ------
Total segment sales $ 82.7 $ 77.8 6.3% $243.2 $236.2 3.0 %
- --------------------------- ====== ====== ====== ======
</TABLE>
Page 19
<PAGE>
The improvement in operating income is primarily due to the higher sales of lawn
mowers and accessories, $2.7 million and $1.8 million higher sales to Southeast
Asia and Europe, respectively, during the third quarter of 1999 than the
comparable period of the prior year, and the positive effect of favorable
exchange rates of approximately $0.5 million and $2.1 million during the third
quarter and first nine months of 1999, respectively.
Sales for the Sporting Equipment segment were up significantly to $98.5 million
and $240.0 million in the third quarter and first nine months of 1999 from $94.1
million and $217.3 million in the prior year. Operating income decreased to
$13.6 million in the current year's third quarter from $14.9 million for the
same period during the prior year. For the first nine months of the current
year, operating income improved to $28.7 million from $24.3 million for the same
period of the prior year. These results reflect a higher volume, particularly
for ammunition and related components and other products, partially offset by
competitive pricing actions required during the quarter in one of this segment's
products. Sales by the segment's principal product groups were as follows (in
millions):
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
-------------------------- --------------------------
% Increase % Increase
1999 1998 in 1999 1999 1998 in 1999
- --------------------------- ------ ------ ---------- ------ ------ ----------
<S> <C> <C> <C> <C> <C> <C>
Ammunition and related products $ 71.6 $ 70.5 1.6% $176.6 $164.4 7.4%
Sports optical products 13.3 13.6 (2.2) 30.0 26.6 12.8
Other 13.6 10.0 36.0 33.4 26.3 27.0
- --------------------------- ------ ------ ------ ------
Total segment sales $ 98.5 $ 94.1 4.7% $240.0 $217.3 10.4%
- --------------------------- ====== ====== ====== ======
</TABLE>
Additionally, in the second half of 1998, the sporting equipment segment
completed certain cost reduction activities by consolidating its raw materials
purchasing and sales and marketing organizations, transferring certain
production to lower cost facilities and eliminating certain outsourcing. The
estimated annual savings from these efforts are approximately $3.7 million,
approximately $2.6 million of which was realized in operating income in the
first nine months of 1999.
The Company's industrial and power equipment segment is a cyclical, capital
goods business whose results are closely linked to the strength of the forestry
industry in general. A key indicator of this segment's market is the price of
Northern Bleached Softwood Kraft ("pulp") which declined 17% from an average of
$598 per ton in the fourth quarter of 1997 to an average of $498 per ton in the
first nine months of 1999 ($460 per ton in the first quarter, $500 per ton in
the second quarter, and $533 per ton in the third quarter), resulting in the
depressed market conditions characterized by sales declines of over 50% in the
Company's most important market (the Southeastern United States) and the need to
offer discounts in response to extremely aggressive competition for available
sales. Operating results for the Industrial and Power Equipment segment were
adversely affected by these poor market conditions in the third quarter and
first nine months of 1999. Sales by the segment's principal product groups were
as follows (in millions):
Page 20
<PAGE>
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
-------------------------- --------------------------
% Decrease % Decrease
1999 1998 in 1999 1999 1998 in 1999
- --------------------------- ------ ------ ---------- ------ ------ ----------
<S> <C> <C> <C> <C> <C> <C>
Timber harvesting and loading
equipment $ 31.6 $ 46.7 (32.3)% $ 85.1 $155.4 (45.2)%
Gear components and rotation
bearings 6.8 8.0 (15.0) 19.6 22.5 (12.9)
- --------------------------- ------ ------ ------ ------
Total segment sales $ 38.4 $ 54.7 (29.8)% $104.7 $177.9 (41.1)%
- --------------------------- ====== ====== ====== ======
</TABLE>
This segment incurred an operating loss of $0.7 million and $5.7 million during
the third quarter and first nine months of 1999, respectively, compared to
operating income of $5.6 million and $24.1 million during the comparable periods
of 1998, primarily due to the sharply reduced demand and manufacturing problems
at the Prentice facility which adversely impacted our ability to ship products
in the quarter and increased costs. In response to the weak market conditions,
the Company has implemented a program of production consolidation and
realignments in this segment to lower costs and improve productivity. Manpower
has been reduced by 21% from a year earlier. One manufacturing facility was
closed during the first half of 1999 with its production shifted to other
Company plants. Another small facility was closed during the third quarter of
1999 with its production outsourced. Costs of approximately $1.0 million and
$3.0 million related to these plant closings were charged to operations during
the third quarter and first nine months of 1999, respectively. Management
anticipates an annual cost savings of approximately $3.7 million beginning in
the third quarter of 1999 as a result of these actions. With recent pulp price
increases, low pulp inventory levels, increased demand for pulp and pulp
products from the recovering economies of Southeast Asia and an improved order
backlog, management is cautiously optimistic of an improvement in the near
future in this segment, although the extent and timing of any improvement is
highly uncertain. If the current slowdown continues, it would be unlikely that
this segment could achieve historical levels of sales and profitability.
The Company's total backlog increased to $100.8 million at September 30, 1999,
from $61.3 million at December 31, 1998, and $73.8 million at September 30,
1998, as follows (in millions):
Backlog
------------------------------------------
September 30, December 31, September 30,
1999 1998 1998
- ------------------------------------ ------------ ------------ -------------
Outdoor Products $ 41.4 $ 30.2 $ 30.9
Sporting Equipment 24.9 15.1 16.7
Industrial and Power Equipment 34.5 16.0 26.2
- ------------------------------------ ------ ------ ------
$100.8 $ 61.3 $ 73.8
- ------------------------------------ ====== ====== ======
Management continuously reviews for potential cost reductions. In addition to
cost savings efforts commented on elsewhere within management's discussion and
analysis, studies are underway to evaluate distribution processes and
distribution facility needs. These studies are expected to be completed in late
1999. While no assurance can be given that savings could be achieved until
these studies are completed, management estimates that potential annual savings
will range from $2 million to $4 million with implementation expenses estimated
Page 21
<PAGE>
to be $1.5 million to $2.5 million. Actual results could vary significantly
from these estimates.
Financial Condition, Liquidity and Capital Resources
At September 30, 1999, as a result of the recapitalization transactions, the
Company has significant amounts of debt, with interest payments on the notes and
interest and principal payments under the new credit facilities representing
significant obligations for the Company. The notes require semi-annual interest
payments and the term loan facilities under the new credit facilities require
payments of principal commencing on approximately December 31, 1999. Interest
on the term loan facilities and amounts outstanding under the revolving credit
facility is payable in arrears according to varying interest periods. The
Company's remaining liquidity needs relate to working capital needs, capital
expenditures and potential acquisitions.
The Company intends to fund working capital, capital expenditures and debt
service requirements through cash flows generated from operations and from the
revolving credit facility. The revolving credit facility has an availability of
up to $100.0 million. Letters of credit issued under the revolving credit
facility which reduced the amount available under the revolving credit facility
were $4.1 million at September 30, 1999. The revolving credit facility will
mature August 19, 2004.
Management believes that cash generated from operations, together with amounts
available under the revolving credit facility, will be sufficient to meet the
Company's working capital, capital expenditure and other cash needs, including
financing for acquisitions, in the foreseeable future. There can be no
assurance, however, that this will be the case. The Company may also consider
other options available to it in connection with future liquidity needs.
The Company has senior notes outstanding in the principal amount of $150 million
which mature in 2005. See Note 3 of Notes to the Consolidated Financial
Statements included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1998, for the terms and conditions of the senior notes. The
Company also has senior subordinated notes outstanding in the principal amount
of $325 million which mature in 2009 and senior term loans outstanding in the
principal amount of $395 million which mature at various dates through 2006.
See Note 2 of Notes to Condensed Consolidated Financial Statements for the terms
and conditions of the senior subordinated notes and senior term loans.
Cash balances at September 30, 1999, were $30.3 million compared to $45.1
million at December 31, 1998. Cash used in operating activities was $28.9
million in the first nine months of 1999 compared to cash provided by operating
activities of $43.8 million during the prior year's first nine months,
principally due to a net income decrease of $69.6 million. Working capital
increased to $233.1 million at September 30, 1999, compared to $232.2 million at
December 31, 1998. Accounts receivable increased by $49.4 million, inventories
by $3.3 million, notes payable and current maturities of long-term debt by $22.7
million, accounts payable by $7.8 million, and accrued expenses by $19.9
million. The higher inventories reflect increases of $4.8 million at the
sporting equipment segment resulting from a normal seasonal build-up in
anticipation of fourth quarter sales. The notes payable and current maturities
of long-term debt increase reflects $12.4 million of new term loans and $10.5
million of debt reclassified from long-term, principally industrial development
revenue bonds, which were redeemed on October 4, 1999. The accounts payable
increase reflects additional raw material purchases principally related to the
inventory increase. The increase in accrued expenses reflects the increased
interest on the additional debt and the balance of expenses associated with the
merger transaction. The accounts receivable increase reflects higher sales by
Page 22
<PAGE>
the outdoor products segment and sporting equipment segment as compared to the
fourth quarter of 1998 and longer terms used as a marketing tool by the sporting
equipment and industrial and power equipment segments.
Accounts receivable at September 30, 1999, and December 31, 1998, and sales by
segment for the third quarter of 1999 compared to the fourth quarter of 1998
were as follows (in millions):
September 30, December 31, Increase
1999 1998 (Decrease)
- ------------------------------------ ------------- ------------ ----------
Accounts Receivable:
Outdoor Products $ 60.0 $ 56.7 $ 3.3
Sporting Equipment 85.0 41.5 43.5
Industrial and Power Equipment 35.8 33.5 2.3
- ------------------------------------ ------ ------ ------
Total segment receivables $180.8 $131.7 $ 49.1
- ------------------------------------ ====== ====== ======
Three Months Ended
September 30, December 31, Increase
1999 1998 (Decrease)
- ------------------------------------ ------------- ------------ ----------
Sales:
Outdoor Products $ 82.7 $ 79.2 $ 3.5
Sporting Equipment 98.5 69.5 29.0
Industrial and Power Equipment 38.4 51.8 (13.4)
- ------------------------------------ ------ ------ ------
Total segment sales $219.6 $200.5 $ 19.1
- ------------------------------------ ====== ====== ======
The Company's outdoor products segment includes Oregon Cutting Systems,
Frederick Manufacturing and Dixon Industries. The higher sales by the outdoor
products segment are the principal reason for the increase in that segment's
receivables as compared to year-end. Because of the seasonal nature of the
sporting equipment business, the need to produce and ship efficiently in order
to ensure an adequate supply during peak sales periods and in response to
competitor programs, the Company offers extended payment terms within its
sporting equipment segment in advance of the fall hunting season. As a result,
receivables tend to peak in September and reach their low point in January. At
September 30, 1999, extended term receivables were $7.9 million greater than at
December 31, 1998. In addition, an unusually large payment ($4 million) due
after December 31, 1998, was received prior to December 31, 1998, from this
segment's largest customer. A similar advance payment was not received in the
third quarter of 1999. The remaining increase of approximately $31.6 million
principally reflects the increased sales of the third quarter of this year
compared to the fourth quarter of the prior year. The Industrial and Power
Equipment segment sales reflect the adverse market conditions described in
"Operating Results." Recently, this segment has begun to see improvement in its
market as reflected in the increased backlog of $24.9 million at September 30,
1999 compared to $15.1 million at December 31, 1998. Sales increases at the end
of the third quarter are further evidence of this improvement. In response
to the adverse market conditions, this segment began offering in the fourth
quarter of 1998 payment terms of 90, 120 and, in some cases, 180 days to
certain dealers based on their financial strength. At September 30, 1999, there
were approximately $12.6 million in receivables with extended terms compared to
$14.5 million at December 31, 1998. Extended term receivables at September 30,
1999, represent 33% of third quarter 1999 sales while extended term receivables
Page 23
<PAGE>
at December 31, 1998, represent 28% of fourth quarter 1998 sales. The increased
sales at the end of the third quarter, slow collections, and use of extended
terms have been the primary reasons for an increase in receivables of 7% since
year-end despite a 26% decrease in sales.
The Company has absorbed the increased receivables resulting from extended terms
through operating cash flows and, given the historically stronger second half
operating cash flows (in 1998, first half operating cash flows were $14.3
million and second half operating cash flows were $74.6 million), the Company
expects operating cash flows will be sufficient to cover any further increases
until market conditions in the industrial and power equipment segment improve
and terms return to those normally extended. No material adverse effect on the
operations, liquidity or capital resources of the Company is expected as a
result of the extended terms.
Cash used in investing activities in the first nine months of 1999 was $15.1
million, reflecting principally purchases of property, plant and equipment of
$11.9 million. Cash provided by financing activities in the first nine months
of 1999 was $29.2 million, principally reflecting $697.4 million from the
issuance of senior subordinated notes and senior term loans, and capital
contribution of $417.5 million partially offset by the redemption of common
stock of $1,068.8 million, the payment of dividends of $7.8 million, and payment
of long-term debt of $7.7 million (see Note 2 to Notes to Condensed Consolidated
Financial Statements).
Immediately after the merger transaction described in Note 2 to Notes to
Condensed Consolidated Financial Statements, the Company became substantially
leveraged which may adversely affect its operations.
This substantial leverage could have important consequences for the Company,
including the following:
1. the ability to obtain additional financing for working capital, capital
expenditures or other purposes may be impaired or that kind of financing may not
be on favorable terms;
2. a substantial portion of cash flows available from operations will be
dedicated to the payment of principal and interest expense, which will reduce
the funds that would otherwise be available for operations and future business
opportunities;
3. a substantial decrease in net income and cash flows or an increase in
expenses may make it difficult to meet debt service requirements or force the
Company to modify operations; and
4. substantial leverage may make the Company more vulnerable to economic
downturns and competitive pressure.
The Company has identified savings which will be effected in the Company's
corporate office including the elimination of the office of the former Chairman,
consolidation of certain similar corporate and segment functions, and
outsourcing of certain corporate administrative functions. Savings are
estimated to be approximately $7.3 million with costs incurred to implement
these changes estimated to be $4.8 million to $5.7 million.
Impact of Year 2000 Issue
The Company has been evaluating its internal date-sensitive systems and
equipment for Year 2000 compliance. The assessment phase of the Year 2000
included both information technology equipment and non-information technology
Page 24
<PAGE>
equipment. Based on its assessment, the Company determined that it was
necessary to modify or replace a portion of its information systems and other
equipment. As of September 30, 1999, the Company has completed the modification
or replacement and testing of the critical software, hardware and equipment
requiring remediation.
The Company believes that the above modifications and replacements should
mitigate the effect of the Year 2000 issue. However, if such modifications and
replacements fail to correct date-sensitive problems, the Year 2000 issue could
have a material impact on the Company's operations by disrupting its ability to
manufacture and ship products, process financial transactions or engage in
similar normal business activities. The Company does not believe that the
effect of the Year 2000 issue on non-information technology systems is likely to
have a material adverse impact. Finally, the Company has reviewed its own
products and believes that it has no significant Year 2000 issues for those
products.
The total estimated cost of the Year 2000 project, including system upgrades, is
approximately $5.4 million and is being funded by operating cash flows. As of
September 30, 1999, costs of $5.3 million had been incurred. Of the total cost
of the project, approximately $2.6 million is attributable to new software and
equipment, which is being capitalized. The remaining costs are expensed as
incurred.
With respect to third parties, the Company has identified and communicated with
third parties with which its systems interface or on which it relies to
determine the extent to which those companies are addressing their Year 2000
compliance. The Company has developed a program for evaluating their readiness
and assessing the impact on the Company if they are not compliant on a timely
basis, including identification of alternate sources of materials and supplies
where appropriate. The Company initiated third party surveys in mid-1998 and of
the approximately 150 key third parties identified, approximately 70% are
already compliant and the remaining 30% have responded that they expect to be
compliant on a timely basis. The Company will continue to monitor the Year 2000
readiness of key suppliers and service providers through the end of the year.
To date, the Company is not aware of any problems that would materially impact
results of operations, liquidity or capital resources.
Although the Company has not finalized its contingency plans for possible Year
2000 issues, it has completed initial communication with key third parties and
non-key third parties as noted above and is presently evaluating and assessing
risks including identification of alternate sources of materials and supplies
where appropriate. The Company has completed testing on all critical systems.
Where needed, the Company will establish contingency plans based on results of
its testing, its evaluation and assessment of third party responses and other
outside risks. The majority of its contingency plans are now in place and plans
will be finalized by October 31,1999.
The costs of the Year 2000 issue and completion dates are based on management's
best estimates, which were derived utilizing numerous assumptions of future
events including the continued availability of certain resources, third-party
modification plans and other factors. However, there can be no guarantee that
these estimates will be achieved and actual results could differ materially from
those plans.
The above statement in its entirety is designated a Year 2000 readiness
disclosure under the Year 2000 Information and Readiness Disclosure Act.
Page 25
<PAGE>
New Accounting Pronouncements
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 133 establishes accounting and
reporting standards for derivatives and hedging. It requires that all
derivatives be recognized as either assets or liabilities at fair value and
establishes specific criteria for the use of hedge accounting. The Company's
required adoption date is January 1, 2001. SFAS No. 133 is not to be applied
retroactively to financial statements of prior periods. The Company expects no
material adverse effect on consolidated results of operations, financial
position or cash flows upon adoption of SFAS No. 133, but does expect a small
reduction in stockholders' deficit.
Forward Looking Statements
Forward looking statements in this report, as defined by the Private Securities
Litigation Reform Law of 1995, involve certain risks and uncertainties that may
cause actual results to differ materially from expectations as of the date of
this report.
Part II. Other Information
Item 2 Changes in Securities
In connection with the transaction referred to herein in Note 2 to the Condensed
Consolidated Financial Statements, the stockholders of the Company approved and
the Company adopted the Agreement and Plan of Merger and Recapitalization, dated
as of April 18, 1999, between Blount International, Inc. and Red Dog
Acquisition, Corp., Restated Certificate of Incorporation of Blount
International, Inc. and By-Laws of Blount International, Inc., which among other
things called for each share of Blount Class A Common Stock and Blount Class B
Common Stock to be converted into the right to receive, at each stockholder's
election and depending on proration, either $30 in cash or two shares of common
stock of the new company. The Restated Certificate of Incorporation of Blount
International, Inc. authorized the issuance of 100,000,000 shares of Common
Stock.
Item 4 Submission of Matters to a Vote of Security Holders
A special meeting of the stockholders of the Company was held on August 18,
1999, to consider and vote upon a proposal to adopt the Agreement and Plan of
Merger and Recapitalization, dated as of April 18, 1999, between the Company and
Red Dog Acquisition, Corp. The proposal was approved by the stockholders by a
vote of 13,133,040 to 24,334, with 3,039 abstentions.
Item 6 Exhibits and Reports on Form 8-K
(a) Exhibits:
4 - $500,000,000 Credit Agreement dated as of August 19, 1999 among
Blount International, Inc., Blount, Inc., as Borrower, and the
Several Lenders from time to time Parties Hereto
4.1 - Indenture between Blount, Inc., as Issuer, Blount International,
Inc., BI Holdings Corp., Benjamin F. Shaw Company, BI, L.L.C.,
Blount Development Corp., Omark Properties, Inc., 4520 Corp.,
Inc., Gear Products, Inc., Dixon Industries, Inc., Frederick
Manufacturing Corporation, Federal Cartridge Company, Simmons
Outdoor Corporation, Mocenplaza Development Corp., and CTR
Page 26
<PAGE>
Manufacturing, Inc., as Guarantors, and United States Trust
Company of New York, dated as of August 19, 1999 (including
exhibits)
4.2 - Registration Right Agreement by and amoung Blount, Inc., Blount
International, Inc., BI Holdings Corp., Benjamin F. Shaw
Company, BI, L.L.C., Blount Development Corp., Omark Properties,
Inc., Gear Products, Inc., Dixon Industries, Inc., Frederick
Manufacturing Corporation, Federal Cartridge Company, Simmons
Outdoor Corporation, Mocenplaza Development Corp., CTR
Manufacturing, Inc., and Lehman Brothers Inc., dated as of
August 19, 1999
27 - Financial Data Schedule for the nine months ended September 30,
1999
27.1 - Restated Financial Data Schedule for the six months ended June
30, 1999
27.2 - Restated Financial Data Schedule for the three months ended March
31, 1999
27.3 - Restated Financial Data Schedule for the year ended December 31,
1998
27.4 - Restated Financial Data Schedule for the nine months ended
September 30, 1998
27.5 - Restated Financial Data Schedule for the six months ended June
30, 1998
27.6 - Restated Financial Data Schedule for the three months ended March
31, 1998
27.7 - Restated Financial Data Schedule for the year ended December 31,
1997
27.8 - Restated Financial Data Schedule for the transition period from
March 1, 1996 to December 31, 1996
(b) Reports on Form 8-K:
On August 20, 1999, the Company filed Form 8-K reporting Item 1 Changes
in Control of Registrant and Item 7(c) Exhibits, with respect to the
transaction referred to herein in Note 2 to the Condensed Consolidated
Financial Statements.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BLOUNT INTERNATIONAL, INC.
- ----------------------------------
Registrant
Date: November 15, 1999 /s/Harold E. Layman
--------------------------------------
Harold E. Layman
Executive Vice President - Finance
Operations and Chief Financial Officer
Page 27
<PAGE>
EXHIBIT 4
to the 9/30/99
Blount International, Inc.
Form 10-Q
==========================================================================
$500,000,000
CREDIT AGREEMENT
among
BLOUNT INTERNATIONAL, INC.
BLOUNT, INC.,
as Borrower
the Several Lenders
from time to time Parties Hereto
LEHMAN BROTHERS INC.,
as Advisor, Lead Arranger and Book Manager
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
BANK OF AMERICA, N.A.,
as Administrative Agent
WACHOVIA BANK, N.A.,
as Documentation Agent
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agent
Dated as of August 19, 1999
==========================================================================
TABLE OF CONTENTS Page
SECTION 1. DEFINITIONS ................................................ 1
1.1 Defined Terms ..................................................... 1
1.2 Other Definitional Provisions .....................................28
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ............................29
2.1 Term Loan Commitments .............................................29
2.2 Procedure for Term Loan Borrowing .................................29
2.3 Repayment of Term Loans ...........................................29
2.4 Revolving Credit Commitments ......................................31
2.5 Procedure for Revolving Credit Borrowing ..........................31
2.6 Swing Line Commitment .............................................32
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans .32
2.8 Repayment of Loans; Evidence of Debt ..............................34
2.9 Commitment Fees, etc. .............................................35
2.10 Termination or Reduction of Revolving Credit Commitments .........35
2.11 Optional Prepayments .............................................35
2.12 Mandatory Prepayments and Commitment Reductions ..................36
2.13 Conversion and Continuation Options ..............................37
2.14 Minimum Amounts and Maximum Number of LIBOR Tranches .............38
2.15 Interest Rates and Payment Dates .................................38
2.16 Computation of Interest and Fees .................................39
2.17 Inability to Determine Interest Rate .............................39
2.18 Pro Rata Treatment and Payments ..................................40
2.19 Requirements of Law ..............................................42
2.20 Taxes ............................................................43
2.21 Indemnity ........................................................45
2.22 Illegality .......................................................45
2.23 Change of Lending Office .........................................46
2.24 Replacement of Lenders under Certain Circumstances ...............46
SECTION 3. LETTERS OF CREDIT ..........................................46
3.1 L/C Commitment ....................................................46
3.2 Procedure for Issuance of Letter of Credit ........................47
3.3 Fees and Other Charges ............................................47
3.4 L/C Participations ................................................48
3.5 Reimbursement Obligation of the Borrower ..........................49
3.6 Obligations Absolute ..............................................49
3.7 Letter of Credit Payments .........................................50
3.8 Applications ......................................................50
3.9 Existing Letters of Credit ........................................50
SECTION 4. REPRESENTATIONS AND WARRANTIES .............................50
4.1 Financial Condition ...............................................50
4.2 No Change .........................................................51
4.3 Corporate Existence; Compliance with Law ..........................51
4.4 Corporate Power; Authorization; Enforceable Obligations ...........52
4.5 No Legal Bar ......................................................52
4.6 No Material Litigation ............................................52
4.7 No Default ........................................................53
4.8 Ownership of Property; Liens ......................................53
4.9 Intellectual Property .............................................53
4.10 Taxes ............................................................53
4.11 Federal Regulations ..............................................53
4.12 Labor Matters ....................................................54
4.13 ERISA ............................................................54
4.14 Investment Company Act; Public Utility Holding Company Act; Other
Regulations ....................................................54
4.15 Capitalization; Subsidiaries; Certain Investments ................55
4.16 Purpose of Loans .................................................55
4.17 Environmental Matters ............................................55
4.18 Accuracy of Information, etc. ....................................56
4.19 Security Documents ...............................................57
4.20 Solvency .........................................................58
4.21 Senior Debt ......................................................58
4.22 Real Property ....................................................58
4.23 Year 2000 Matters ................................................58
4.24 No Burdensome Restrictions .......................................58
SECTION 5. CONDITIONS PRECEDENT .......................................59
5.1 Conditions to Initial Extension of Credit .........................59
5.2 Conditions to Each Extension of Credit ............................63
SECTION 6. AFFIRMATIVE COVENANTS ......................................64
6.1 Financial Statements ..............................................64
6.2 Certificates; Other Information ...................................65
6.3 Payment of Obligations ............................................66
6.4 Conduct of Business and Maintenance of Existence, etc. ............66
6.5 Maintenance of Property; Insurance ................................67
6.6 Inspection of Property; Books and Records; Discussions ............67
6.7 Notices ...........................................................68
6.8 Environmental Laws ................................................68
6.9 Interest Rate Protection ..........................................69
6.10 Additional Collateral, etc. ......................................69
6.11 Further Assurances ...............................................71
SECTION 7. NEGATIVE COVENANTS .........................................71
7.1 Financial Condition Covenants .....................................71
7.2 Limitation on Indebtedness ........................................73
7.3 Limitation on Liens ...............................................75
7.4 Limitation on Fundamental Changes .................................77
7.5 Limitation on Disposition of Property .............................78
7.6 Limitation on Restricted Payments .................................78
7.7 Limitation on Capital Expenditures ................................79
7.8 Limitation on Investments .........................................80
7.9 Limitation on Optional Payments and Modifications of Instruments
and Agreements, etc. ............................................81
7.10 Limitation on Transactions with Affiliates .......................82
7.11 Limitation on Sales and Leasebacks ...............................83
7.12 Limitation on Changes in Fiscal Periods ..........................83
7.13 Limitation on Negative Pledge Clauses ............................83
7.14 Limitation on Restrictions on Subsidiary Distributions ...........84
7.15 Limitation on Lines of Business ..................................84
7.16 Hedge Agreements .................................................84
7.17 Limitation on Activities of Holdings .............................84
SECTION 8. EVENTS OF DEFAULT ..........................................85
SECTION 9. THE AGENTS .................................................88
9.1 Appointment .......................................................88
9.2 Delegation of Duties ..............................................88
9.3 Exculpatory Provisions ............................................88
9.4 Reliance by Agents ................................................89
9.5 Notice of Default .................................................89
9.6 Non-Reliance on Agents and Other Lenders ..........................90
9.7 Indemnification ...................................................90
9.8 Agent in Its Individual Capacity ..................................91
9.9 Successor Agents ..................................................91
9.10 Authorization to Release Liens ...................................91
9.11 The Arranger, etc. ...............................................92
SECTION 10. MISCELLANEOUS .............................................92
10.1 Amendments and Waivers ...........................................92
10.2 Notices ..........................................................93
10.3 No Waiver; Cumulative Remedies ...................................95
10.4 Survival of Representations and Warranties .......................95
10.5 Payment of Expenses ..............................................95
10.6 Successors and Assigns; Participations and Assignments ...........96
10.7 Adjustments; Set-off .............................................99
10.8 Counterparts ....................................................100
10.9 Severability ....................................................100
10.10 Integration ....................................................100
10.11 GOVERNING LAW ..................................................100
10.12 Submission To Jurisdiction; Waivers ............................101
10.13 Acknowledgements ...............................................101
10.14 Confidentiality ................................................102
10.15 Accounting Changes .............................................102
10.16 Delivery of Lender Addenda .....................................102
10.17 WAIVERS OF JURY TRIAL ..........................................103
SCHEDULES:
I Pricing Grid
1.1 Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.9 Intellectual Property
4.15 Capitalization, Subsidiaries and Investments
4.17 Environmental Matters
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A-1 Form of Non-Shared Guarantee and Collateral Agreement
A-2 Form of Shared Collateral Pledge Agreement
A-3 Form of Collateral Trust Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Cravath, Swaine & Moore
F-2 Form of Legal Opinion of General Counsel of the Credit Parties
F-3 Form of Legal Opinion of Milbank, Tweed, Hadley & McCloy LLP
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Prepayment Option Notice
I Form of Non-U.S. Lender Certificate
J Form of Lender Addendu
CREDIT AGREEMENT, dated as of August 19, 1999 among BLOUNT
INTERNATIONAL, INC., a Delaware corporation ("Holdings"), BLOUNT, INC., a
Delaware corporation ("Borrower"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and book manager
(in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER INC. ("LCPI"), as
syndication agent (in such capacity, the "Syndication Agent"), and BANK OF
AMERICA, N.A., as administrative agent (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower and the Subsidiary Guarantors (as
defined below) have requested that the Lenders extend credit to the Borrower
in an aggregate amount not exceeding $500,000,000, under the guarantee of the
Guarantors (as defined below), to, among other things, finance a portion of
the Recapitalization (as defined below) and pay related fees and expenses;
WHEREAS, the Lenders are willing to extend such credit upon and
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"Accepting Lenders": as defined in Section 2.18(d).
"Adjustment Date": the third Business Day following the date on
which the financial statements for the most recently completed fiscal
period furnished pursuant to Section 6.1(a) or (b), as the case may be,
and the compliance certificate with respect to such financial statements
furnished pursuant to Section 6.2(b) are delivered to the Administrative
Agent. For purposes of determining the Applicable Margin and the
Commitment Fee Rate, the first "Adjustment Date" shall mean the third
Business Day following the date on which the financial statements for
the fiscal quarter ended December 31, 1999 furnished pursuant to Section
6.1(b) and the related compliance certificate furnished pursuant to
Section 6.2(b) are delivered to the Administrative Agent.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person means the power, directly or indirectly, either to (a) vote
10% or more of the securities having ordinary voting power for the
election of directors (or persons performing similar functions) of such
Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Agents": the collective reference to the Syndication Agent and
the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and
(ii) the amount of such Lender's Revolving Credit Commitment then in
effect or, if the Revolving Credit Commitments have been terminated, the
amount of such Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all Lenders
at such time.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for (a) each Tranche B Term Loan that is a
LIBOR Loan, 4.0% per annum, (b) each Tranche B Term Loan that is a Base
Rate Loan, 3.0% per annum and (c) each Type of Revolving Credit Loan and
Tranche A Term Loan, the rate per annum set forth on the Pricing Grid
under the relevant column heading opposite the level of the Consolidated
Leverage Ratio most recently determined; provided that (i) the
Applicable Margin for each Type of Revolving Credit Loan and Tranche A
Term Loan commencing on the Closing Date shall be that set forth on the
Pricing Grid under the relevant column opposite a Consolidated Leverage
Ratio captioned "> 5.0 to 1" until the first Adjustment Date, (ii) the
Applicable Margin for each Type of Loan determined for any Adjustment
Date (including the first Adjustment Date) shall remain in effect until
a subsequent Adjustment Date for which the Consolidated Leverage Ratio
falls within a different level and (iii) if the financial statements and
related compliance certificate for any fiscal period are not delivered
by the date due pursuant to Section 6.1 and 6.2, the Applicable Margin
for each Type of Revolving Credit Loan and Tranche A Term Loan shall be
(x) for the first 30 days subsequent to such due date, the Applicable
Margin for such Type of Loan in effect prior to such due date and (y)
thereafter, that set forth on the Pricing Grid under the relevant column
opposite a Consolidated Leverage Ratio captioned "> 5.0 to 1", in either
case, until the date of delivery of such financial statements and
compliance certificate.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by
clause (a), (b), (c), (d) or (e) of Section 7.5) which yields gross
proceeds to Holdings or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in the
case of other non-cash proceeds) in excess of $500,000.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Attributable Debt": in respect of a sale and leaseback
transaction, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in
accordance with GAAP) of the obligations of the lessee for net rental
payments during the remaining term of the lease included in such sale
and leaseback transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be extended).
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the amount, if any, by
which (a) such Lender's Revolving Credit Commitment then in effect
exceeds (b) such Lender's Revolving Extensions of Credit then
outstanding; provided that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's
Available Revolving Credit Commitment pursuant to Section 2.9(a), the
aggregate principal amount of Swing Line Loans then outstanding shall be
deemed to be zero.
"Base CD Rate" as defined in the definition of "Base Rate" in this
Section.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1.00% and (c) the Federal Funds Effective Rate in effect on
such day plus 0.50%. For purposes hereof, "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by the
Reference Lender as its prime or base rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is
one minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
and "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such
day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by the Reference Lender from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. Any change in the Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"Base Rate Loans": Loans the rate of interest applicable to which
is based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business Day": (a) for all purposes other than as covered by
clause (b) below, a day other than a Saturday, Sunday or other day on
which commercial banks in Atlanta, GA and Charlotte, NC are authorized
or required by law to close and (b) with respect to all notices and
determinations in connection with, and payments of principal and
interest on, LIBOR Loans, any day which is a Business Day described in
clause (a) and which is also a day for trading by and between banks in
Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period)
which should be capitalized under GAAP on a consolidated balance sheet
of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States government, or
issued by any agency thereof and backed by the full faith and credit of
the United States government, in each case maturing within one year from
the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of
one year or less from the date of acquisition issued by any Lender or by
any commercial bank organized under the laws of the United States of
America or any state thereof having combined capital and surplus of not
less than $500,000,000; (c) commercial paper of a U.S. issuer rated at
least A-2 by Standard & Poor's Ratings Services ("S&P") or P-2 by
Moody's Investors Service, Inc. ("Moody's"), or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper
issuers generally; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 90 days with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) investments with foreign government entities which are
members of the OECD so long as the OECD member country has a local
currency credit rating of at least AA by Standard & Poor's or Aa by
Moody's (each, a "Qualifying OECD Country"), or foreign banks organized
under the laws of a Qualifying OECD Country having a minimum capital and
surplus of at least the foreign currency equivalent of the amount
referred to in clause (b) above, in each case similar to the types of
investments set forth in clauses (a) and (b) above (denominated in
foreign currency); (f) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's; (g) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b)
of this definition; or (h) shares of money market mutual or similar
funds at least 95% of the assets of which satisfy the requirements of
clauses (a) through (g) of this definition.
"C/D Assessment Rate": for any day as applied to any Base Rate
Loan, the annual assessment rate in effect on such day which is payable
by a member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Section 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution
in the United States.
"C/D Reserve Percentage": for any day as applied to any Base Rate
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board as in effect from time to time) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days
or more.
"Change in Control": the occurrence of any of the following
events:
(a) LBMBP II and its Affiliates shall cease to have the power to
vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of Holdings
(determined on a fully diluted basis);
(b) LBMBP II and its Affiliates shall cease to own of record and
beneficially at least a majority of the outstanding common stock of
Holdings;
(c) the board of directors of Holdings shall cease to consist of
a majority of directors appointed by LBMBP II and its Affiliates;
(d) Holdings shall cease to own of record and beneficially 100%
of the Capital Stock of the Borrower; or
(e) a "Change of Control" as defined in the Senior Subordinated
Notes Indenture.
"Closing Date": the date (which shall not be later than November
30, 1999) on which the conditions precedent set forth in Section 5.1
shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral": all Property of the Credit Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Trust Agreement": the Collateral Trust Agreement to
be executed and delivered by Holdings, the Borrower, each Subsidiary
Guarantor and the Collateral Trustee, substantially in the form of
Exhibit A-3.
"Collateral Trustee": Bank of America, N.A., in its capacities as
collateral trustee under the Shared Collateral Pledge Agreement and the
Foreign Subsidiary Pledge Agreements, and mortgagee under certain of the
Mortgages, together with its successors in such capacities.
"Commitment": as to any Lender, the sum of the Tranche A Term
Loan Commitment and the Tranche B Term Loan Commitment and the Revolving
Credit Commitment of such Lender.
"Commitment Fee Rate": the rate per annum set forth on the
Pricing Grid under the relevant column heading opposite the level of the
Consolidated Leverage Ratio most recently determined; provided that (a)
the Commitment Fee Rate commencing on the Closing Date shall be that set
forth on the Pricing Grid opposite a Consolidated Leverage Ratio
captioned "> 5.0 to 1" until the first Adjustment Date, (b) the
Commitment Fee Rate determined for any Adjustment Date (including the
first Adjustment Date) shall remain in effect until a subsequent
Adjustment Date for which the Consolidated Leverage Ratio falls within a
different level and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the
date due pursuant to Section 6.1 and 6.2, the Commitment Fee Rate shall
be (i) for the first 30 days subsequent to such due date, the Commitment
Fee Rate in effect prior to such due date and (ii) thereafter, that set
forth on the Pricing Grid under the relevant column opposite a
Consolidated Leverage Ratio captioned "> 5.0 to 1", in either case,
until the date of delivery of such financial statements and compliance
certificate.
"Commonly Controlled Entity": an entity, whether or not
incorporated that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated July 1999 and furnished to the initial
Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) which would, in conformity with GAAP, be
set forth opposite the caption "total current assets" (or any like
caption) on a consolidated balance sheet of the Holdings and its
Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
which would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated
balance sheet of Holdings and its Subsidiaries at such date, but
excluding (a) the current portion of any Funded Debt of Holdings and its
Subsidiaries and (b) without duplication of clause (a) above, all
Indebtedness of Holdings and its Subsidiaries consisting of Revolving
Credit Loans or Swing Line Loans to the extent otherwise included
therein.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as
a charge in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) Consolidated Interest
Expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, (e) any extraordinary,
unusual or non-recurring expenses or losses (including, whether or not
otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business), (f) fees and expenses
incurred in connection with the Recapitalization (including, without
limitation, the cost of repurchasing or retiring stock options held by
certain existing shareholders of Holdings immediately prior to the
Recapitalization) and (g) any other non-cash charges, and minus, to the
extent included in the statement of such Consolidated Net Income for
such period, the sum of (a) any extraordinary, unusual or non-recurring
income or gains (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business) and (b) any other non-cash income, all as determined on a
consolidated basis. Notwithstanding the foregoing, for purposes of
determining the Consolidated Leverage Ratio and the Consolidated
Interest Coverage Ratio as at the last day of the period of four fiscal
quarters ending with any fiscal quarter set forth below, Consolidated
EBITDA for such period shall be deemed to be equal to the amount
determined pursuant to the preceding paragraph plus the amount set forth
below opposite such fiscal quarter:
Fiscal Quarter Ending Amount
--------------------- -----------
December 31, 1999 $19,400,000
March 31, 2000 $15,000,000
June 30, 2000 $10,000,000
September 30, 2000 $5,000,000
"Consolidated Interest Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period; provided that for the purposes of determining
the Consolidated Interest Coverage Ratio (i) for the period of four
consecutive fiscal quarters of Holdings ending December 31, 1999,
Consolidated Interest Expense shall be deemed to be equal to
Consolidated Interest Expense for the fiscal quarter ending December 31,
1999 times four, (ii) for the period of four consecutive fiscal quarters
of Holdings ending March 31, 2000, Consolidated Interest Expense shall
be deemed to be equal to Consolidated Interest Expense for the period of
two consecutive fiscal quarters ending March 31, 2000 times two and
(iii) for the period of four consecutive fiscal quarters of Holdings
ending June 30, 2000, Consolidated Interest Expense shall be deemed to
be equal to Consolidated Interest Expense for the period of three
consecutive fiscal quarters ending June 30, 2000 times 4/3.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease
Obligations) of Holdings and its Subsidiaries for such period with
respect to all outstanding Indebtedness of Holdings and its Subsidiaries
(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 in respect of
interest rates to the extent such net costs are allocable to such period
in accordance with GAAP), net of any interest income of Holdings and its
Subsidiaries for such period.
"Consolidated Leverage Ratio": as at the last day of any period
of four consecutive fiscal quarters, the ratio of (a) Consolidated Total
Debt on such day to (b) Consolidated EBITDA for such period; provided
that for purposes of calculating Consolidated EBITDA of the Borrower and
its Subsidiaries for any period, the Consolidated EBITDA of any Person
acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation
of such acquisition and the incurrence or assumption of any Indebtedness
in connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of
such Person and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in respect of
which Consolidated EBITDA is to be calculated (i) have been previously
provided to the Administrative Agent and the Lenders and (ii) either (A)
have been reported on without a qualification arising out of the scope
of the audit by independent certified public accountants of nationally
recognized standing or (B) have been found acceptable by the
Administrative Agent.
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of Holdings and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the
income (or deficit) of any Person (other than a Subsidiary of the
Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any Contractual Obligation (other
than under any Credit Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Total Assets": at any date, all assets of Holdings
and its Subsidiaries as determined according to the consolidated balance
sheet most recently delivered pursuant to Section 6.1 or, if no such
balance sheet has yet been delivered pursuant to Section 6.1, the most
recent consolidated balance sheet referred to in Section 4.1(b).
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Funded Debt of Holdings and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Credit Documents": collectively, this Agreement, the Security
Documents, the Collateral Trust Agreement, the Applications and the
Notes.
"Credit Parties": collectively, Holdings, the Borrower and each
Subsidiary of the Borrower which is a party to a Credit Document.
"Default": any of the events specified in Section 8, whether or
not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof (excluding, without limitation, any Recovery Event);
the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States of America.
"ECF Percentage": with respect to any fiscal year of Holdings,
75%; provided that the ECF Percentage with respect to any fiscal year of
Holdings shall be 50% if the Consolidated Leverage Ratio as of the last
day of such fiscal year is not greater than 3.5 to 1.0.
"Environmental Laws": any and all applicable and binding laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, or
other legally enforceable requirements (including, without limitation,
common law) of any international authority, foreign government, the
United States, or any state, local, municipal or other Governmental
Authority, regulating, relating to or imposing liability or standards of
conduct concerning protection of the environment or of human health, or
employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
approvals, registrations, notifications, exemptions and/or other
authorizations required under any Environmental Law.
"Equity Documents": the Stockholder Agreement dated as of April
18, 1999 between Newco and The Blount Holding Company, L.P., the
Management Agreements (as defined in the Merger Agreement) and each
other agreement governing the equity capitalization of Holdings and the
rights of the equity holders of Holdings.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
LIBOR Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Event of Default": any of the events specified in Section 8;
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of Holdings, (a) the sum,
without duplication, of (i) Consolidated Net Income for such fiscal
year, (ii) an amount equal to the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working Capital
for such fiscal year, (iv) an amount equal to the aggregate net non-cash
loss on the Disposition of Property by Holdings and its Subsidiaries
during such fiscal year (other than sales of inventory in the ordinary
course of business), to the extent deducted in arriving at such
Consolidated Net Income and (v) the net increase during such fiscal year
(if any) in deferred tax accounts of Holdings minus (b) the sum, without
duplication, of (i) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the
aggregate amount actually paid by Holdings and its Subsidiaries in cash
during such fiscal year on account of (x) Capital Expenditures and (y)
Investments permitted by Section 7.8(h) made during such fiscal year
(excluding the principal amount of Indebtedness incurred or assumed in
connection with such expenditures or Investments, any such expenditures
or Investments financed with the proceeds of any Reinvestment Deferred
Amount and the amount of any such Investments in excess of $20,000,000),
(iii) the aggregate amount of all prepayments of Revolving Credit Loans
and Swing Line Loans during such fiscal year to the extent accompanying
permanent optional reductions of the Revolving Credit Commitments and
all optional prepayments of the Term Loans and other Funded Debt during
such fiscal year, (iv) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including, without limitation, the
Term Loans) of Holdings and its Subsidiaries made during such fiscal
year (other than in respect of any revolving credit facility to the
extent there is not an equivalent permanent reduction in commitments
thereunder), (v) increases in Consolidated Working Capital for such
fiscal year, (vi) an amount equal to the aggregate net non-cash gain on
the Disposition of Property by Holdings and its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of
business), to the extent included in arriving at such Consolidated Net
Income, and (vii) the net decrease during such fiscal year (if any) in
deferred tax accounts of Holdings.
"Excess Cash Flow Application Date": as defined in Section
2.12(c).
"Excluded Foreign Subsidiary": a Foreign Subsidiary with (a)
revenues for the most recently completed fiscal year of Holdings of not
more than $1,000,000 or (b) total assets as of the end of such fiscal
year of not more than $1,000,000.
"Existing Credit Facility": the credit facility made available to
the Borrower under the $150,000,000 Credit Agreement dated as of April
1, 1997 among the Borrower, Holdings, the lenders party thereto and
Morgan Guaranty Trust Company of New York, as Agent, as amended,
supplemented or otherwise modified and in effect on the Closing Date.
"Existing Letters of Credit": as defined in Section 3.9.
"Existing Senior Notes": the 7% Senior Notes Due June 15, 2005 of
the Borrower issued pursuant to the Existing Senior Notes Indenture in
an aggregate principal amount of $148,665,000 outstanding on the date
hereof.
"Existing Senior Notes Documents": the collective reference to
the Existing Senior Notes Indenture and the Existing Senior Notes.
"Existing Senior Notes Indenture": the Indenture dated as of June
18, 1998 among the Borrower, Holdings and LaSalle National Bank, as
Trustee.
"Facility": each of (a) the Tranche A Term Loan Commitments and
the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B
Term Loans made thereunder (the "Tranche B Term Loan Facility"), and (c)
the Revolving Credit Commitments and the extensions of credit made
thereunder (the "Revolving Credit Facility").
"Federal Funds Effective Rate": for any day, the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Reference Lender from three federal funds
brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
"Foreign Subsidiary Pledge Agreement": a pledge or similar
agreement between a Credit Party and the Administrative Agent (or a sub-
agent of, or any other Person designated or appointed by, the
Administrative Agent), providing for the pledge of or Lien on certain
equity interests of a Foreign Subsidiary, executed and delivered
pursuant to this Agreement.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation 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 from 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
from such date, including, without limitation, all current maturities
and current sinking fund payments in respect of such Indebtedness
whether or not required to be paid within one year from the date of its
creation and, in the case of the Borrower, Indebtedness in respect of
the Loans.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time, except that for
purposes of Section 7.1, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used
in the preparation of the most recent audited financial statements
delivered pursuant to Section 4.1(b).
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase Property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantors": the collective reference to Holdings and the
Subsidiary Guarantors.
"Hedge Agreements": all swaps, caps, collar or forward agreements
or similar arrangements entered into by the Borrower providing for
protection against fluctuations in interest rates, currency exchange
rates, commodity values or the exchange of nominal interest obligations,
either generally or under specific contingencies.
"Holdings": as defined in the preamble hereto.
"Indebtedness": of any Person at any date, 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 incurred in the ordinary course
of such Person's business), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all
indebtedness 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), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise, as
an account party under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or otherwise,
to purchase, redeem, retire or otherwise acquire for value any Capital
Stock of such Person, (h) all Attributable Debt of such Person with
respect to sale and leaseback transactions, (i) all Guarantee
Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (h) above, (j) all obligations of the
kind referred to in clauses (a) through (i) above secured by (or for
which the holder of such obligation 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, whether
or not such Person has assumed or become liable for the payment of such
obligation, and (k) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Initial Senior Subordinated Notes": as defined in the definition
of "Senior Subordinated Notes" in this Section.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how
and processes, and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the first
day of each January, April, July and October to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
LIBOR Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any LIBOR Loan having an Interest
Period longer than three months, each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Loan (other than
any Revolving Credit Loan that is a Base Rate Loan and any Swing Line
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any LIBOR Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may
be, with respect to such LIBOR Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and (b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such LIBOR Loan
and ending one, two, three or six (and, if available to all Lenders,
nine or twelve) months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on
the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Revolving Credit Termination Date or beyond the date final
payment is due on the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, shall end on the Revolving Credit
Termination Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(iv) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any LIBOR Loan during an
Interest Period for such Loan.
"Investments": as defined in Section 7.8.
"Issuing Lender": Bank of America, N.A., in its capacity as
issuer of any Letter of Credit.
"Joint Venture": any Person (other than a Subsidiary) in which
the Borrower and its Subsidiaries collectively hold a percentage
ownership interest of no greater than 50%.
"LBMBP II": Lehman Brothers Merchant Banking Partners II L.P., a
Delaware limited partnership.
"LCPI": as defined in the preamble hereto.
"L/C Commitment": (a) on or before December 31, 1999, $30,000,000
and (b) thereafter, $20,000,000.
"L/C Fee Payment Date": the first day of each January, April,
July and October and the last day of the Revolving Credit Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the Revolving
Credit Lenders other than the Issuing Lender.
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit J, to be executed and
delivered by such Lender on the Closing Date as provided in Section
10.16.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"LIBOR Base Rate": with respect to each day during each Interest
Period pertaining to a LIBOR Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "LIBOR Base Rate" for
purposes of this definition shall be determined by reference to such
other comparable publicly available service for displaying LIBOR Rates
as may be selected by the Administrative Agent or, in the absence of
such availability, by reference to the rate at which the Administrative
Agent is offered Dollar deposits at or about 11:00 A.M., Atlanta, GA and
Charlotte, NC time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar
and foreign currency and exchange operations are then being conducted
for delivery on the first day of such Interest Period for the number of
days comprised therein.
"LIBOR Loans": Loans the rate of interest applicable to which is
based upon the LIBOR Rate.
"LIBOR Rate": with respect to each day during each Interest
Period pertaining to a LIBOR Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
LIBOR Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"LIBOR Tranche": the collective reference to LIBOR Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may
be, outstanding under such Facility (or, in the case of the Revolving
Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments).
"Management Fees": for any period, the sum of all fees, salaries
and other compensation paid or incurred by Holdings and its Subsidiaries
to the New Investors and their respective Affiliates in respect of
management, advisory or consulting services rendered to Holdings and its
Subsidiaries.
"Material Adverse Effect": a material adverse effect on (a) the
Recapitalization, (b) the business, properties, assets, liabilities,
financial condition or results of operations of Holdings and its
Subsidiaries taken as a whole or (c) the validity or enforceability of
this Agreement or any of the other Credit Documents or the rights or
remedies of the Agents or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactive materials, and any other
substances or materials of any kind, whether or not any such substance
or material is defined as hazardous or toxic under any Environmental
Law, that is regulated pursuant to any Environmental Law.
"Merger Agreement": Agreement and Plan of Merger and
Recapitalization, dated as of April 18, 1999, between Newco and
Holdings.
"Mortgaged Properties": the real properties listed on Schedule
1.1 and any real property acquired after the Closing Date that is
required to be subject to a Mortgage pursuant to Section 6.10(b), and
ancillary rights relating thereto, as to which the Administrative Agent
for the benefit of the Lenders (or, in the case of any Mortgaged
Property which constitutes Principal Property, the Collateral Trustee
for the benefit of the Lenders and the holders of the Existing Senior
Notes on an equal and ratable basis) shall be granted a Lien pursuant to
the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by any
Credit Party in favor of, or for the benefit of, the Administrative
Agent or the Collateral Trustee for the benefit of the Lenders (and, to
the extent required by the Existing Senior Notes Indenture, the holders
of the Existing Senior Notes on an equal and ratable basis with the
Lenders), substantially in the form of Exhibit D (with such changes
thereto as shall be advisable in the reasonable opinion of the Agents
under the law of the jurisdiction in which such mortgage or deed of
trust is to be recorded), as the same may be amended, supplemented or
otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of (i) attorneys'
fees, accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset which is the subject of such Asset Sale
or Recovery Event (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in connection
therewith, (ii) taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (iii) cash amounts
required to be maintained by Holdings or any of its Subsidiaries as a
reserve or in escrow against any liabilities associated with such Asset
Sale and retained by Holdings or such Subsidiary, as the case may be,
after such Asset Sale and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"New Investors": as defined in Section 5.1(b)(ii).
"Newco": Red Dog Acquisition, Corp., a Delaware corporation.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-Operating Subsidiary: a Subsidiary of Holdings (a) with
revenues (on a consolidated basis with its Subsidiaries) for the most
recently completed fiscal year of Holdings of less than $500,000 or (b)
identified on Part B of Schedule 4.15 as a "Non-Operating Subsidiary".
"Non-Shared Guarantee and Collateral Agreement": the Non-Shared
Guarantee and Collateral Agreement to be executed and delivered by
Holdings, the Borrower and each Subsidiary Guarantor, substantially in
the form of Exhibit A-1, as the same may be amended, supplemented or
otherwise modified from time to time.
"Non-U.S. Lender": as defined in Section 2.20(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrower to the Administrative Agent or to any Lender
(or, in the case of Hedge Agreements, any Affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Credit Document,
the Letters of Credit, any Hedge Agreement entered into with any Lender
or any Affiliate of any Lender or any other document made, delivered or
given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender
that are required to be paid by the Borrower pursuant hereto or thereto)
or otherwise.
"OECD": the Organisation for Economic Co-operation and
Development.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any
other Credit Document.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrower and
the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Section
307 or Title IV of ERISA or Section 412 of the Code in respect of which
the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Pledged Stock": all Capital Stock or other equity interests, now
owned or hereafter acquired, upon which a Lien is purported to be
created by a Security Document.
"Prepayment Date": as defined in Section 2.18(d).
"Prepayment Option Notice": as defined in Section 2.18(d).
"Pricing Grid": the pricing grid attached as Schedule I.
"Prime Rate": as defined in the definition of "Base Rate" in this
Section.
"Principal Property": as defined in the Existing Senior Notes
Indenture.
"Pro Forma Balance Sheets": as defined in Section 4.1(a).
"Projected Financial Statements": as defined in Section 4.1(c).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Qualifying OECD Country": as defined in the definition of "Cash
Equivalents" in this Section.
"Recapitalization": the transactions contemplated by the
Recapitalization Documents.
"Recapitalization Documents": collectively, (a) the Merger
Agreement (b) the Equity Documents and (c) the Senior Subordinated Notes
Documents.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any Property of Holdings, the Borrower or any of its
Subsidiaries.
"Reference Lender": Bank of America, N.A. (or such other
commercial bank designated as such by the Syndication Agent).
"Refunded Swing Line Loans": as defined in Section 2.7.
"Refunding Date": as defined in Section 2.7.
"Register": as defined in Section 10.6(d).
"Registration Rights Agreement": the Registration Rights
Agreement, dated as of August 19, 1999, between Holdings, the Borrower,
each Subsidiary Guarantor and Lehman Brothers Inc.
"Regulation U": Regulation U of the Board as in effect from time
to time.
"Regulation X": Regulation X of the Board as in effect from time
to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by Holdings, the
Borrower or any of its Subsidiaries in connection therewith which are
not applied to prepay the Term Loans or reduce the Revolving Credit
Commitments pursuant to Section 2.12(b) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect
of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing
and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash
Proceeds of an Asset Sale or Recovery Event to acquire assets useful in
the business of the Borrower and its Subsidiaries prior to the date
occurring 18 months after the applicable Reinvestment Event.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire assets useful in the business of the Borrower and its
Subsidiaries.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring 18 months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets
useful in the business of the Borrower and its Subsidiaries with all or
any portion of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under Section 4043 or the regulations
thereunder.
"Required Lenders": at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments and (b) thereafter, the sum
of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and (ii) the Total Revolving Credit Commitments then in
effect or, if the Revolving Credit Commitments have been terminated, the
Total Revolving Extensions of Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president,
chief financial officer, treasurer or general counsel of Holdings and
the Borrower, but in any event, with respect to financial matters, the
chief financial officer or treasurer of Holdings and the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Revolving Credit Commitment": as to any Lender, the obligation
of such Lender, if any, to make Revolving Credit Loans and participate
in Swing Line Loans and Letters of Credit, in an aggregate principal
and/or face amount not to exceed the amount set forth under the heading
"Revolving Credit Commitment" opposite such Lender's name on Schedule 1
to the Lender Addendum delivered by such Lender, or, as the case may be,
in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original amount of the Total Revolving Credit
Commitments is $100,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section.
"Revolving Credit Lender": each Lender which has a Revolving
Credit Commitment or which is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Percentage": as to any Revolving Credit Lender
at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit Commitments
(or, at any time after the Revolving Credit Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Credit Loans then outstanding
constitutes of the aggregate principal amount of the Revolving Credit
Loans then outstanding).
"Revolving Credit Termination Date": August 19, 2004.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (b) such Lender's Revolving Credit Percentage of the L/C
Obligations then outstanding and (c) such Lender's Revolving Credit
Percentage of the aggregate principal amount of Swing Line Loans then
outstanding.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Security Documents": the collective reference to the Non-Shared
Guarantee and Collateral Agreement, the Shared Collateral Pledge
Agreement, the Mortgages, the Foreign Subsidiary Pledge Agreements and
all other security documents hereafter delivered to the Administrative
Agent granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Credit Party under any Credit
Document.
"Senior Subordinated Notes": collectively, the (a) subordinated
notes (the "Initial Senior Subordinated Notes") of the Borrower issued
on the Closing Date pursuant to the Senior Subordinated Notes Indenture,
(b) the subordinated notes of the Borrower, having the same terms as the
Initial Senior Subordinated Notes, issued in exchange for the Initial
Senior Subordinated Notes as contemplated by the Senior Subordinated
Notes Documents, and (c) any additional subordinated notes of the
Borrower issued after the Closing Date pursuant to the Senior
Subordinated Notes Indenture in an aggregate principal amount not to
exceed $125,000,000.
"Senior Subordinated Notes Documents": collectively, the Senior
Subordinated Notes Indenture, the Senior Subordinated Notes and the
Registration Rights Agreement.
"Senior Subordinated Notes Indenture": the Indenture or
Indentures entered into by Holdings, the Borrower and certain of
Subsidiaries of the Borrower in connection with the issuance of the
Senior Subordinated Notes, together with all instruments and other
agreements entered into by Holdings, the Borrower or such Subsidiaries
in connection therewith.
"Shared Collateral Pledge Agreement": the Shared Collateral
Pledge Agreement to be executed and delivered by Holdings, the Borrower
and each Subsidiary Guarantor, substantially in the form of Exhibit A-2,
as the same may be amended, supplemented or otherwise modified from time
to time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as
of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of
such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small amount
of capital with which to conduct its business, and (d) such Person will
be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim"
means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock
or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries,
or both, by such Person. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Foreign Subsidiary.
"Swing Line Commitment": the obligation of the Swing Line Lender
to make Swing Line Loans pursuant to Section 2.6 in an aggregate
principal amount at any one time outstanding not to exceed $10,000,000.
"Swing Line Lender": Bank of America, N.A., in its capacity as
the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Participation Amount": as defined in Section 2.7.
"Syndication Agent": as defined in the preamble hereto.
"Term Loan Facilities": the collective reference to the Tranche A
Term Loan Facility and the Tranche B Term Loan Facility.
"Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans and the Tranche B Term Loans.
"Three-Month Secondary CD Rate": as defined in the definition of
"Base Rate" in this Section.
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders outstanding at such time.
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Loan Facility": as defined in the definition of
"Facility" in this Section.
"Tranche A Term Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Tranche A Term Loan Commitments is $60,000,000.
"Tranche A Term Loan Lender": each Lender which has a Tranche A
Term Loan Commitment or is the holder a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to Tranche A Term Loan
Lender at any time, the percentage which such Lender's Tranche A Term
Loan Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Closing Date, the percentage
which the aggregate principal amount of such Lender's Tranche A Term
Loans then outstanding constitutes of the aggregate principal amount of
the Tranche A Term Loans then outstanding).
"Tranche B Prepayment Amount": as defined in Section 2.18(d).
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Commitment": as to Tranche B Term Loan
Lender, the obligation of such Lender, if any, to make a Tranche B Term
Loan to the Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading "Tranche B Term Loan Commitment"
opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the
same may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Tranche B Term Loan Commitments is
$340,000,000.
"Tranche B Term Loan Facility": as defined in the definition of
"Facility" in this Section.
"Tranche B Term Loan Lender": each Lender which has a Tranche B
Term Loan Commitment or which is the holder of a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at any time,
the percentage which such Lender's Tranche B Term Loan Commitment then
constitutes of the aggregate Tranche B Term Loan Commitments (or, at any
time after the Closing Date, the percentage which the aggregate
principal amount of such Lender's Tranche B Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche B Term
Loans then outstanding); provided that solely for purposes of
calculating the amount of each installment of Tranche B Term Loans
(other than the last installment) payable to a Term Loan Lender pursuant
to Section 2.3(b), such Term Loan Lender's Tranche B Term Loan
Percentage shall be calculated without giving effect to any portion of
any prior mandatory or optional prepayment attributable to such Term
Loan Lender's Tranche B Term Loans which shall have been declined by
such Term Loan Lender (or, in the case of any Term Loan Lender which
shall have acquired its Tranche B Term Loans by assignment from another
Person, by such other Person).
"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a LIBOR Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person all
of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Credit Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Credit Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holdings, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) Unless the context requires otherwise, any definition of or
reference to any agreement, instrument or other document in this Agreement
shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth in this Agreement).
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
hereof, (a) each Tranche A Term Loan Lender severally agrees to make a term
loan (a "Tranche A Term Loan") to the Borrower on the Closing Date in an
amount equal to the amount of the Tranche A Term Loan Commitment of such
Lender and (b) each Tranche B Term Loan Lender severally agrees to make a term
loan (a "Tranche B Term Loan") to the Borrower on the Closing Date in an
amount equal to the amount of the Tranche B Term Loan Commitment of such
Lender. The Term Loans may from time to time be LIBOR Loans or Base Rate
Loans, as determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.2 and 2.13.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 12:00 Noon, Atlanta, GA and Charlotte, NC
time, one Business Day prior to the anticipated Closing Date) requesting that
the Term Loan Lenders make the Term Loans on the Closing Date and specifying
the amount to be borrowed. The Term Loans made on the Closing Date shall
initially be Base Rate Loans. Upon receipt of such notice the Administrative
Agent shall promptly notify each Term Loan Lender thereof. Not later than
12:00 Noon, Atlanta, GA and Charlotte, NC time, on the Closing Date each Term
Loan Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the Term Loan or Term
Loans to be made by such Lender. The Administrative Agent shall make
available to the Borrower, upon its instructions, the aggregate of the amounts
made available to the Administrative Agent by the Term Loan Lenders in
immediately available funds.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of
each Tranche A Lender shall mature in 19 consecutive quarterly installments,
commencing on December 31, 1999, each of which shall be in an amount equal to
such Lender's Tranche A Term Loan Percentage multiplied by the amount set
forth below opposite such installment:
Installment Principal Amount
----------- ----------------
December 31, 1999 $2,000,000
March 31, 2000 $2,000,000
June 30, 2000 $2,000,000
September 30, 2000 $3,000,000
December 31, 2000 $3,000,000
March 31, 2001 $3,000,000
June 30, 2001 $3,000,000
September 30, 2001 $3,000,000
December 31, 2001 $3,000,000
March 31, 2002 $3,000,000
June 30, 2002 $3,000,000
September 30, 2002 $3,750,000
December 31, 2002 $3,750,000
March 31, 2003 $3,750,000
June 30, 2003 $3,750,000
September 30, 2003 $3,750,000
December 31, 2003 $3,750,000
March 31, 2004 $3,750,000
June 30, 2004 $3,750,000
(b) The Tranche B Term Loan of each Tranche B Lender shall mature
in 27 consecutive quarterly installments, commencing on December 31, 1999,
each of which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
December 31, 1999 $850,000
March 31, 2000 $850,000
June 30, 2000 $850,000
September 30, 2000 $850,000
December 31, 2000 $850,000
March 31, 2001 $850,000
June 30, 2001 $850,000
September 30, 2001 $850,000
December 31, 2001 $850,000
March 31, 2002 $850,000
June 30, 2002 $850,000
September 30, 2002 $850,000
December 31, 2002 $850,000
March 31, 2003 $850,000
June 30, 2003 $850,000
September 30, 2003 $850,000
December 31, 2003 $850,000
March 31, 2004 $850,000
June 30, 2004 $850,000
September 30, 2004 $850,000
December 31, 2004 $850,000
March 31, 2005 $850,000
June 30, 2005 $850,000
September 30, 2005 $80,000,000
December 31, 2005 $80,000,000
March 31, 2006 $80,000,000
June 30, 2006 $80,450,000
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's
Revolving Credit Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swing Line Loans
then outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Credit Loans may from time to time
be LIBOR Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.13; provided
that no Revolving Credit Loan shall be made as a LIBOR Loan after the day that
is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving Credit
Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day; provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 11:30 A.M., Atlanta, GA and Charlotte, NC
time, (a) three Business Days prior to the requested Borrowing Date, in the
case of LIBOR Loans, or (b) on the requested Borrowing Date, in the case of
Base Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans
to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
LIBOR Loans, the length of the initial Interest Period therefor. Any
Revolving Credit Loans made on the Closing Date shall initially be Base Rate
Loans. Each borrowing under the Revolving Credit Commitments shall be in an
amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple of $100,000 in excess thereof (or, if the then aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of LIBOR Loans, $5,000,000 or a whole multiple of $100,000 in
excess thereof; provided that the Swing Line Lender may request, on behalf of
the Borrower, borrowings under the Revolving Credit Commitments which are Base
Rate Loans in other amounts pursuant to Section 2.7. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00
Noon, Atlanta, GA and Charlotte, NC time, on the Borrowing Date requested by
the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower, upon its instructions,
by the Administrative Agent in like funds as received by the Administrative
Agent.
2.6 Swing Line Commitment. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make a portion of the
credit otherwise available to the Borrower under the Revolving Credit
Commitments from time to time during the Revolving Credit Commitment Period by
making swing line loans ("Swing Line Loans") to the Borrower; provided that
(i) the aggregate principal amount of Swing Line Loans outstanding at any time
shall not exceed the Swing Line Commitment then in effect (notwithstanding
that the Swing Line Loans outstanding at any time, when aggregated with the
Swing Line Lender's other outstanding Revolving Credit Loans hereunder, may
exceed the Swing Line Commitment then in effect) and (ii) the Borrower shall
not request, and the Swing Line Lender shall not make, any Swing Line Loan if,
after giving effect to the making of such Swing Line Loan, the aggregate
amount of the Available Revolving Credit Commitments would be less than zero.
During the Revolving Credit Commitment Period, the Borrower may use the Swing
Line Commitment by borrowing, repaying and reborrowing, all in accordance with
the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans
only.
(b) The Borrower shall repay all outstanding Swing Line Loans on
the Revolving Credit Termination Date.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans. (a) Whenever the Borrower desires that the Swing Line Lender make
Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 1:00 P.M., Atlanta, GA and Charlotte,
NC time, on the proposed Borrowing Date), specifying (i) the amount to be
borrowed and (ii) the requested Borrowing Date (which shall be a Business Day
during the Revolving Credit Commitment Period). Each borrowing under the
Swing Line Commitment shall be in an amount equal to $500,000 or a whole
multiple of $100,000 in excess thereof. Not later than 3:00 P.M., Atlanta, GA
and Charlotte, NC time, on the Borrowing Date specified in a notice in respect
of Swing Line Loans, the Swing Line Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swing Line Loan to be made by the Swing Line
Lender. The Administrative Agent shall make the proceeds of such Swing Line
Loan available to the Borrower, upon its instructions, on such Borrowing Date
in immediately available funds.
(b) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
Atlanta, GA and Charlotte, NC time, request each Revolving Credit Lender to
make, and each Revolving Credit Lender hereby agrees to make, a Revolving
Credit Loan, in an amount equal to such Revolving Credit Lender's Revolving
Credit Percentage of the aggregate amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date of such notice, to repay
the Swing Line Lender. Each Revolving Credit Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at the
Funding Office in immediately available funds, not later than 10:00 A.M.,
Atlanta, GA and Charlotte, NC time, one Business Day after the date of such
notice. The proceeds of such Revolving Credit Loans shall be immediately made
available by the Administrative Agent to the Swing Line Lender for application
by the Swing Line Lender to the repayment of the Refunded Swing Line Loans.
The Borrower irrevocably authorizes the Swing Line Lender to charge the
Borrower's accounts with the Administrative Agent (up to the amount available
in each such account) in order to immediately pay the amount of such Refunded
Swing Line Loans to the extent amounts received from the Revolving Credit
Lenders are not sufficient to repay in full such Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the Swing Line Lender in
its sole discretion, Revolving Credit Loans may not be made as contemplated by
Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving
Credit Loan was to have been made pursuant to the notice referred to in
Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided
participating interest in the then outstanding Swing Line Loans by paying to
the Swing Line Lender an amount (the "Swing Line Participation Amount") equal
to (i) such Revolving Credit Lender's Revolving Credit Percentage times (ii)
the sum of the aggregate principal amount of Swing Line Loans then outstanding
which were to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Lender its
Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender's pro rata portion of
such payment if such payment is not sufficient to pay the principal of and
interest on all Swing Line Loans then due); provided, however, that in the
event that such payment received by the Swing Line Lender is required to be
returned, such Revolving Credit Lender will return to the Swing Line Lender
any portion thereof previously distributed to it by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or the Borrower may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever, (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of this Agreement or
any other Credit Document by the Borrower, any other Credit Party or any other
Revolving Credit Lender, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the appropriate Revolving Credit Lender or Term Loan Lender, as the
case may be, (i) the then unpaid principal amount of each Revolving Credit
Loan of such Revolving Credit Lender on the Revolving Credit Termination Date
(or such earlier date on which the Loans become due and payable pursuant to
Section 8), (ii) the then unpaid principal amount of each Swing Line Loan of
such Swing Line Lender on the Revolving Credit Termination Date (or such
earlier date on which the Loans become due and payable pursuant to Section 8)
and (iii) the principal amount of each Term Loan of such Term Loan Lender in -
installments according to the amortization schedule set forth in Section 2.3
(or on such earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 2.15.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(e), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made
to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit G-1, G-2 or G-3, respectively,
with appropriate insertions as to date and principal amount.
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment
of such Lender during the period for which payment is made, payable quarterly
in arrears on the last Business Day of each March, June, September and
December and on the Revolving Credit Termination Date, commencing on the first
of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Syndication Agent the fees
in the amounts and on the dates previously agreed to in writing by the
Borrower and the Syndication Agent.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates from time to time agreed to in writing by
the Borrower and the Administrative Agent.
2.10 Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments; provided that no such termination or reduction of
Revolving Credit Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Credit Loans and Swing Line
Loans made on the effective date thereof, the Total Revolving Extensions of
Credit would exceed the Total Revolving Credit Commitments. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Credit Commitments then in
effect.
2.11 Optional Prepayments. (a) The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty (except as provided in Section 2.11(b)), upon irrevocable notice
delivered to the Administrative Agent not later than 11:30 A.M., Atlanta, GA
and Charlotte, NC time, three Business Days prior thereto in the case of LIBOR
Loans and on the date thereof in the case of Base Rate Loans, which notice
shall specify (i) the date and amount of prepayment, (ii) in the case of a
prepayment of Term Loans, the allocation of the prepayment among the Term Loan
Facilities and (iii) whether the prepayment is of LIBOR Loans or Base Rate
Loans; provided that if a LIBOR Loan is prepaid on any day other than the last
day of the Interest Period applicable thereto, the Borrower shall also pay any
amounts owing pursuant to Section 2.21. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans which are Base Rate Loans and Swing Line Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of Term
Loans and Revolving Credit Loans (whether Base Rate Loans or LIBOR Loans)
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swing Line Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
(b) Each optional prepayment in respect of the Tranche B Term
Loans made prior to the second anniversary of the Closing Date shall be
accompanied by a prepayment premium equal to (i) if such prepayment is made
prior to the first anniversary of the Closing Date, 1.50% of the principal
amount of such prepayment and (ii) if such prepayment is made between the
first anniversary of the Closing Date and the second anniversary of the
Closing Date, 0.50% of such prepayment.
2.12 Mandatory Prepayments and Commitment Reductions. (a) If
any Indebtedness shall be incurred by Holdings, the Borrower or any of its
Subsidiaries (excluding any Indebtedness incurred in accordance with Section
7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be
applied on the date of such issuance or incurrence toward the prepayment of
the Term Loans and the reduction of the Revolving Credit Commitments as set
forth in Section 2.12(d).
(b) If on any date Holdings, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered in respect
thereof, such Net Cash Proceeds shall be applied on such date toward the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in Section 2.12(d); provided that, notwithstanding
the foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans and the reduction of
the Revolving Credit Commitments as set forth in Section 2.12(d).
(c) If, for any fiscal year of the Borrower commencing with the
fiscal year ending December 31, 2000, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the
ECF Percentage of such Excess Cash Flow toward the prepayment of the Term
Loans and the reduction of the Revolving Credit Commitments as set forth in
Section 2.12(d). Each such prepayment and commitment reduction shall be made
on a date (an "Excess Cash Flow Application Date") no later than five days
after the earlier of (i) the latest date on which the financial statements of
the Borrower referred to in Section 6.1(a), for the fiscal year with respect
to which such prepayment is made, are required to be delivered to the Lenders
and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section shall be applied, first,
to the prepayment of the Term Loans and, second, to reduce permanently the
Revolving Credit Commitments. Any such reduction of the Revolving Credit
Commitments shall be accompanied by prepayment of the Revolving Credit Loans
and/or Swing Line Loans to the extent, if any, that the Total Revolving
Extensions of Credit exceed the amount of the Total Revolving Credit
Commitments as so reduced; provided that if the aggregate principal amount of
Revolving Credit Loans and Swing Line Loans then outstanding is less than the
amount of such excess (because L/C Obligations constitute a portion thereof),
the Borrower shall, to the extent of the balance of such excess, replace
outstanding Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative Agent for the benefit
of the Lenders on terms and conditions satisfactory to the Administrative
Agent. The application of any prepayment pursuant to this Section shall be
made, first, to Base Rate Loans and, second, to LIBOR Loans. Each prepayment
of the Loans under this Section (except in the case of Revolving Credit Loans
that are Base Rate Loans and Swing Line Loans) shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
(e) Each mandatory prepayment in respect of the Tranche B Term
Loans (other than mandatory prepayments pursuant to Section 2.12(c)) made
prior to the second anniversary of the Closing Date shall be accompanied by a
prepayment premium equal to (i) if such prepayment is made prior to the first
anniversary of the Closing Date, 1.50% of the principal amount of such
prepayment and (ii) if such prepayment is made between the first anniversary
of the Closing Date and the second anniversary of the Closing Date, 0.50% of
such prepayment.
2.13 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert LIBOR Loans to Base Rate Loans by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election; provided that any such conversion of LIBOR Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to LIBOR Loans by
giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor); provided that no Base Rate Loan under a
particular Facility may be converted into a LIBOR Loan (i) when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Majority Facility Lenders in respect of such Facility have determined in its
or their sole discretion not to permit such conversions or (ii) after the date
that is one month prior to the final scheduled termination or maturity date of
such Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any LIBOR Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans;
provided that no LIBOR Loan under a particular Facility may be continued as
such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted
to Base Rate Loans on the last day of such then expiring Interest Period.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of LIBOR Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of LIBOR Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and
be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the LIBOR Loans comprising each LIBOR
Tranche shall be equal to $5,000,000 or a whole multiple of $100,000 in excess
thereof and (b) no more than ten LIBOR Tranches shall be outstanding at any
one time.
2.15 Interest Rates and Payment Dates. (a) Each LIBOR Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the LIBOR Rate determined for such day
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
or Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue principal amount shall
bear interest at a rate per annum which is equal to (x) in the case of the
Loans, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this Section plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Base Rate Loans under the
Revolving Credit Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to Base Rate
Loans under the relevant Facility plus 2% (or, in the case of any such other
amounts that do not relate to a particular Facility, the rate then applicable
to Base Rate Loans under the Revolving Credit Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-
, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a LIBOR Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent
in determining any interest rate pursuant to Section 2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
LIBOR Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any LIBOR Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to LIBOR Loans shall be
continued as Base Rate Loans and (z) any outstanding LIBOR Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice
has been withdrawn by the Administrative Agent, no further LIBOR Loans under
the relevant Facility shall be made or continued as such, nor shall the
Borrower have the right to convert Loans under the relevant Facility to LIBOR
Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Tranche A Term Loan
Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages,
as the case may be, of the relevant Lenders. Each payment (other than
prepayments) in respect of principal or interest in respect of the Loans, each
payment in respect of fees payable hereunder, and each payment in respect of
Reimbursement Obligations, shall be applied to the amounts of such obligations
owing to the Lenders pro rata according to the respective amounts then due and
owing to the Lenders.
(b) Each optional prepayment pursuant to Section 2.11 in respect
of the Term Loans shall be allocated among the Term Loan Facilities as the
Borrower shall direct in the applicable notice delivered by it in accordance
with Section 2.11. Each mandatory prepayment required by Section 2.12 to be
applied to Term Loans shall be allocated among the Term Loan Facilities pro
rata according to the respective outstanding principal amounts of Term Loans
under such Facilities. Each payment (including each prepayment) of the Term
Loans outstanding under any Term Loan Facility shall be allocated among the
Term Loan Lenders holding such Term Loans pro rata based on the principal
amount of such Term Loans held by such Term Loan Lenders. Each prepayment of
the Term Loans outstanding under any Term Loan Facility shall be applied to
the installments of such Term Loans, first, to the next succeeding installment
thereof and, second, pro rata based on the remaining outstanding principal
amount of such installments. Amounts prepaid on account of the Term Loans may
not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(d) Notwithstanding anything to the contrary in Section 2.11,
2.12 or 2.18, so long as any Tranche A Term Loans are outstanding, each
Tranche B Term Loan Lender may, at its option, decline all or any portion of
any mandatory payment applicable to the Tranche B Term Loans of such Lender;
accordingly, with respect to the amount of any mandatory prepayment described
in Section 2.12 that is allocated to Tranche B Term Loans (such amounts, the
"Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain
outstanding, the Borrower will, in lieu of applying such amount to the
prepayment of Tranche B Term Loans, as provided in paragraph Section 2.12(d),
on the date specified in Section 2.12 for such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each Tranche B
Lender a notice (each, a "Prepayment Option Notice") as described below. As
promptly as practicable after receiving such notice from the Borrower, the
Administrative Agent will send to each Tranche B Lender a Prepayment Option
Notice, which shall be in the form of Exhibit H, and shall include an offer by
the Borrower to prepay on the date (each a "Prepayment Date") that is 10
Business Days after the date of the Prepayment Option Notice, the relevant
Term Loans of such Lender by an amount equal to the portion of the Prepayment
Amount indicated in such Lender's Prepayment Option Notice as being applicable
to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the
Borrower shall pay to the Administrative Agent the aggregate amount necessary
to prepay that portion of the outstanding relevant Term Loans in respect of
which Tranche B Lenders have accepted prepayment as described above (such
Lenders, the "Accepting Lenders"), and such amount shall be applied to reduce
the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii)
the Borrower shall pay to the Administrative Agent an amount equal to 50% of
the portion of the Tranche B Prepayment Amount not accepted by the Accepting
Lenders, and such amount shall be applied to the prepayment of the Tranche A
Term Loans, and (iii) the Borrower shall be entitled to retain the remaining
50% of the portion of the Tranche B Prepayment Amount not accepted by the
Accepting Lenders.
(e) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, Atlanta, GA and Charlotte, NC time, on the due date
thereof to the Administrative Agent, for the account of the Lenders, at the
Payment Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the LIBOR Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a LIBOR Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans under the relevant Facility,
on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such
required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application or
any LIBOR Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for Non-Excluded Taxes covered
by Section 2.20 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in the
determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining LIBOR Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender
for such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section, it shall
promptly notify the Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction; provided that the
Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any increased costs or reductions incurred more than 120 days
prior to the date that such Lender notifies the Borrower of the Requirement of
Law giving rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; and provided, further, that, if the
circumstances giving rise to such claim have a retroactive effect, then such
120 day period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable pursuant
to this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.20 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on any Agent or any Lender as a
result of a present or former connection between such Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Credit Document). If any such non-
excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to any Agent or any Lender hereunder, the amounts so
payable to such Agent or such Lender shall be increased to the extent
necessary to yield to such Agent or such Lender (after payment of all Non-
Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement;
provided, however, that the Borrower shall not be required to increase any
such amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the requirements
of paragraph (d) or (e) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time the
Lender becomes a party to this Agreement (or, subject to Section 2.23,
designates a new lending office), except to the extent that such Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to Section 2.20(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for the account of the relevant Agent or Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Non-
Excluded Taxes or Other Taxes when due to the appropriate taxing authority or
fails to remit to the Agents the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent
and the Lenders for any incremental taxes, interest or penalties that may
become payable by any Agent or any Lender as a result of any such failure.
The agreements in this Section 2.20 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder; provided, however, that the agreement in this Section 2.20 shall
terminate upon the applicable statute of limitations.
(d) Each Lender (or Transferee) that is not a citizen or resident
of the United States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of America (or
any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two copies of either U.S. Internal Revenue Service Form 1001
or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest" a statement substantially in the
form of Exhibit I and a Form W-8, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Credit Documents. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement or (except if such
Lender shall be unable to deliver such forms by reason of Section 2.23)
designates a new lending office (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time
it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction
of non-U.S. withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate;
provided that such Lender is legally entitled to complete, execute and deliver
such documentation and in such Lender's reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
(f) Any Lender that becomes aware that it is entitled to receive
a refund (whether by way of a direct payment or by offset) in respect of a
Non-Excluded Tax paid by the Borrower, which refund, in the sole discretion of
such Lender, is allocable to such payment made pursuant to this Section 2.20,
such Lender shall promptly notify the Borrower of the availability of such
refund and shall, within 30 days after the receipt of a request from the
Borrower, apply for such refund at the Borrower's sole expense; provided that
(i) the Borrower shall not be entitled to any damages as a result of the
failure of such Lender to so notify the Borrower of the availability of such
refund and (ii) the Borrower shall not have the right to examine the books or
records of any Lender. If any Lender receives any such refund (as described
in the preceding sentence), it shall repay the amount of such refund (together
with any interest received thereon) to the Borrower.
2.21 Indemnity. The Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of LIBOR Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment or
conversion of LIBOR Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest which would have accrued
on the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. A certificate
as to any amounts payable pursuant to this Section submitted to the Borrower
by any Lender shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.22 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make LIBOR Loans, continue LIBOR Loans
as such and convert Base Rate Loans to LIBOR Loans shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as LIBOR Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a LIBOR
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrower shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a)
or 2.22 with respect to such Lender, it will, if requested by the Borrower,
use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided
that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage, and provided, further, that nothing in this
Section shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or (b)
defaults in its obligation to make Loans hereunder, with a replacement
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) prior to any such
replacement, such Lender shall have taken no action under Section 2.23 so as
to eliminate the continued need for payment of amounts owing pursuant to
Section 2.19 or 2.20, (iv) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to such replaced Lender on
or prior to the date of replacement, (v) the Borrower shall be liable to such
replaced Lender under Section 2.21 (as though Section 2.21 were applicable) if
any LIBOR Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (vi) the replacement
financial institution, if not already a Lender, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time
as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.19, 2.20 or 2.21,
as the case may be, and (ix) any such replacement shall not be deemed to be a
waiver of any rights which the Borrower, the Administrative Agent or any other
Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in Section 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower or any Subsidiary
Guarantor on any Business Day during the Revolving Credit Commitment Period in
such form as may be approved from time to time by the Issuing Lender; provided
that the Issuing Lender shall have no obligation to issue any Letter of Credit
if, after giving effect to such issuance, (i) the L/C Obligations would exceed
the L/C Commitment or (ii) the aggregate amount of the Available Revolving
Credit Commitments would be less than zero. Each Letter of Credit shall (i)
be denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Revolving Credit Termination Date; provided that
any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the
date referred to in clause (y) above).
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing
Lender will process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall the Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed to
by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a
copy of such Letter of Credit to the Borrower promptly following the issuance
thereof. The Issuing Lender shall promptly furnish to the Administrative
Agent, which shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee in
respect of all outstanding Letters of Credit (i) in the case of commercial
Letters of Credit issued on or after the Closing Date, in an amount equal to
1.25% of the amount of any draft presented thereunder and paid by the Issuing
Lender and (ii) otherwise, on the aggregate drawable amount of all such
outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to LIBOR Loans under the Revolving Credit
Facility minus 0.25%, in each case shared ratably among the Revolving Credit
Lenders and payable (x) in the case of commercial Letters of Credit issued on
or after the Closing Date, on the date any draft is presented thereunder and
paid by the Issuing Lender and (y) otherwise, quarterly in arrears on each L/C
Fee Payment Date after the issuance date or, in the case of Existing Letters
of Credit, after the Closing Date. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee on the aggregate drawable
amount of all outstanding Letters of Credit of (i) in the case of commercial
Letters of Credit issued on or after the Closing Date, 0.25%, payable on the
issuance date and (ii) otherwise, 0.25% per annum, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date or, in the case
of Existing Letters of Credit, after the Closing Date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender, on demand, for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases
from the Issuing Lender, on the terms and conditions hereinafter stated, for
such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Revolving Credit Percentage in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender upon
demand at the Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's Revolving Credit Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit
is paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily
average Federal Funds Effective Rate during the period from and including the
date such payment is required to the date on which such payment is immediately
available to the Issuing Lender, times (iii) a fraction the numerator of which
is the number of days that elapse during such period and the denominator of
which is 360. If any such amount required to be paid by any L/C Participant
pursuant to Section 3.4(a) is not made available to the Issuing Lender by such
L/C Participant within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of the Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing
Lender notifies the Borrower of the date and amount of a draft presented under
any Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment. Each such
payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds. Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section from the date such amounts
become payable (whether at stated maturity, by acceleration or otherwise)
until payment in full at the rate set forth in (i) until the second Business
Day following the date of the applicable drawing, Section 2.15(b) and (ii)
thereafter, Section 2.15(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 8(f)
shall have occurred and be continuing with respect to the Borrower, in which
case the procedures specified in Section 3.4 for funding by L/C Participants
shall apply) constitute a request by the Borrower to the Administrative Agent
for a borrowing pursuant to Section 2.5 of Base Rate Loans (or, at the option
of the Administrative Agent and the Swing Line Lender in their sole
discretion, a borrowing pursuant to Section 2.7 of Swing Line Loans) in the
amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the date of such drawing.
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the
Issuing Lender that the Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or any claims whatsoever of the Borrower
against any beneficiary of such Letter of Credit or any such transferee. The
Issuing Lender shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of the Issuing Lender. The Borrower agrees that any action taken or omitted
by the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards or care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of the
Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall apply.
3.9 Existing Letters of Credit. Each letter of credit listed on
Schedule 7.2(d) in respect of which Bank of America, N.A. (or any predecessor
thereof) is identified on said Schedule 7.2(d) as the "Issuing Bank" (each, an
"Existing Letter of Credit") shall be deemed to be a Letter of Credit for all
purposes of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and issue or participate in the Letters of Credit,
Holdings and the Borrower hereby jointly and severally represent and warrant
to each Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheets of (i) Holdings and its consolidated Subsidiaries
and (ii) the Borrower and its consolidated Subsidiaries, in each case as at
June 30, 1999 (including the notes thereto) (collectively, the "Pro Forma
Balance Sheets"), copies of which have heretofore been furnished to each
Lender, have been prepared giving effect (as if such events had occurred on
such date) to (i) the consummation of the Recapitalization, (ii) the Loans to
be made and the Senior Subordinated Notes to be issued on the Closing Date and
the use of proceeds thereof and (iii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheets have been
prepared based on the best information available to Holdings and the Borrower
as of the date of delivery thereof, and present fairly on a pro forma basis
the estimated financial positions of Holdings and its consolidated
Subsidiaries or the Borrower and its consolidated Subsidiaries, as applicable,
as at June 30, 1999, assuming that the events specified in the preceding
sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of Holdings and its
consolidated Subsidiaries as at December 31, 1998 and December 31, 1997 and
the related consolidated statements of income and of cash flows for the fiscal
years ended on such dates, reported on by and accompanied by an unqualified
report from PricewaterhouseCoopers LLP, present fairly the consolidated
financial condition of Holdings and its consolidated Subsidiaries as at each
such date, and the consolidated results of its operations and its consolidated
cash flows for the respective fiscal years then ended. The unaudited
consolidated balance sheets of (i) Holdings and its consolidated Subsidiaries
and (ii) the Borrower and its consolidated Subsidiaries, in each case as at
March 31, 1999 and June 30, 1999, and the related unaudited consolidated
statements of income and cash flows for the three-month or six-month, as
applicable, period ended on such date, present fairly the consolidated
financial condition of Holdings and its consolidated Subsidiaries or the
Borrower and its consolidated Subsidiaries, as the case may be, as at each
such date, and the consolidated results of its respective operations and its
respective consolidated cash flows for the three-month and six-month periods
then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein). Holdings, the Borrower and its Subsidiaries do not have
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, which are
not reflected in the most recent financial statements referred to in this
paragraph. During the period from December 31, 1998 to and including the date
hereof there has been no Disposition by Holdings, the Borrower or any of its
Subsidiaries of any material part of its business or Property.
(c) The consolidated balance sheet projections, the consolidated
statements of income projections and the consolidated statements of cash flow
projections of the Borrower and its consolidated Subsidiaries for the 1999
through 2006 fiscal years (the "Projected Financial Statements"), copies of
which have heretofore been furnished to each Lender requesting the same, have
been prepared giving effect (as if such events had occurred on June 30, 1999)
to (i) the consummation of the Recapitalization, (ii) the Loans to be made and
the Senior Subordinated Notes to be issued on the Closing Date and the use of
proceeds thereof and (iii) the payment of fees and expenses in connection with
the foregoing.
4.2 No Change. Since December 31, 1998 there has been no
development or event which has had or is reasonably likely to have a Material
Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of Holdings,
the Borrower and its Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b)
has the corporate power and authority, and the legal right, to own and operate
its Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification except to the extent that the failure to be so
duly qualified or in good standing in such jurisdiction could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect; provided that this Section 4.3
shall not apply to the matters covered by Section 4.17.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Credit Party has the corporate power and authority, and the legal right,
to make, deliver and perform the Credit Documents to which it is a party and,
in the case of the Borrower, to borrow hereunder. Each Credit Party has taken
all necessary corporate action to authorize the execution, delivery and
performance of the Credit Documents to which it is a party and, in the case of
the Borrower, to authorize the borrowings on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the Recapitalization and the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
this Agreement or any of the Credit Documents, except (i) consents,
authorizations, filings and notices described in Schedule 4.4, which consents,
authorizations, filings and notices have been obtained or made and are in full
force and effect and (ii) the filings referred to in Section 4.19. Each
Credit Document has been duly executed and delivered on behalf of each Credit
Party party thereto. This Agreement constitutes, and each other Credit
Document upon execution will constitute, a legal, valid and binding obligation
of each Credit Party party thereto, enforceable against each such Credit Party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Credit Documents, the issuance of Letters of
Credit, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or any Contractual Obligation of Holdings, the
Borrower or any of its Subsidiaries (other than the obligation of the Borrower
to cash collateralize certain letters of credit identified on Schedule 7.2(d)
relating to certain industrial revenue bonds pending payment in full of such
industrial revenues bonds, for which notice of payment has been delivered by
the Borrower) and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents, including, to the extent required by the
Existing Senior Notes Indenture, Liens securing the Existing Senior Notes, and
Liens arising from the cash collateralization of the letters of credit
referred to above), except to the extent that any such violation could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of Holdings or the Borrower, threatened by or against
Holdings, the Borrower or any of its Subsidiaries or against any of their
respective properties or revenues (a) with respect to any of the Credit
Documents or any of the transactions contemplated hereby or thereby or (b) as
to which there is a reasonable possibility of an adverse determination that
could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; provided that this Section 4.6 shall not apply to any
matters covered by Section 4.17.
4.7 No Default. Neither Holdings, the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the Borrower
and its Subsidiaries has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest
in, all its other Property, and none of such Property is subject to any Lien
except as permitted by Section 7.3, except for such defects in title which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.9 Intellectual Property. Except as set forth in Schedule 4.9:
(a) Holdings, the Borrower and each of its Subsidiaries owns, or
is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted;
(b) no material claim has been asserted and is pending by any
Person challenging or questioning the use of any Intellectual Property
or the validity or effectiveness of any Intellectual Property, nor does
Holdings or the Borrower know of any valid basis for any such claim; and
(c) the use of Intellectual Property by Holdings, the Borrower
and its Subsidiaries does not infringe on the rights of any Person in
any material respect.
4.10 Taxes. Each of Holdings, the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns which are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its Property and all other taxes, fees or other charges imposed
on it or any of its Property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of Holdings, the Borrower or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of Holdings and the Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used by Holdings or any of its Subsidiaries, whether directly or
indirectly, and whether immediately, incidentally or ultimately, for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of Regulation U or Regulation X. Neither Holdings, the Borrower
nor any of the Borrower's Subsidiaries is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose
or purchasing or carrying "margin stock" (as such term is defined in
Regulation U). Not more than 25% of the value of the assets of Holdings and
its Subsidiaries taken as a whole constitutes or will constitute margin stock
(as so defined).
4.12 Labor Matters. There are no strikes or other labor disputes
against Holdings, the Borrower or any of its Subsidiaries pending or, to the
knowledge of Holdings or the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect.
Hours worked by and payment made to employees of Holdings, the Borrower and
its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable Requirement of Law dealing with such matters that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect. All payments due from Holdings, the Borrower or any
of its Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability
on the books of Holdings, the Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period, in either case with respect to which the Borrower has any outstanding
liability. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount that could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan which has resulted or could reasonably be expected to have
a material liability under ERISA which has not been satisfied as of the date
hereof, and, neither the Borrower nor any Commonly Controlled Entity would
become subject to any liability under ERISA that could reasonably be expected
to have a Material Adverse Effect if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made. To the knowledge of the Borrower, no
such Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Public Utility Holding Company Act;
Other Regulations. No Credit Party is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940, as
amended or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended. No Credit
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Capitalization; Subsidiaries; Certain Investments. (a) As
of the Closing Date (after giving effect to the Recapitalization), (i) the
authorized Capital Stock of Holdings consists of 100,000,000 common shares,
par value $0.01, of which 30,800,000 are duly and validly issued and
outstanding, and each of which shares is fully paid and nonassessable and (ii)
Part A of Schedule 4.15 contains a complete and correct list of each of record
and beneficial owner of issued and outstanding Capital Stock of Holdings,
together with, for each such owner, the percentage of such Capital Stock owned
by them (after giving effect to the Recapitalization).
(b) Set forth on Part B of Schedule 4.15 is a complete and
correct list of all of the direct and indirect Subsidiaries of Holdings as of
the Closing Date (after giving effect to the Recapitalization), together with,
for each such Subsidiary, the jurisdiction of incorporation of each such
Subsidiary and the percentage of each class of Capital Stock owned by any
Credit Party.
(c) Set forth on Part C of Schedule 4.15 is a complete and
correct list of all Investments (other than Investments disclosed in Part B of
Schedule 4.15 and other than Investments of the types referred to in Section
7.8(a), (b), (c), (d) and (f)) held by the Borrower or any of its Subsidiaries
in any Person as of the Closing Date (after giving effect to the
Recapitalization), together with, for each such Investment, the identity of
the Person or Persons holding such Investment and the nature of such
Investment.
(d) There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Capital Stock of Holdings or any of its Subsidiaries,
except as disclosed on Schedule 4.15.
4.16 Purpose of Loans. The proceeds of the Term Loans shall be
used to finance a portion of the Recapitalization, to pay related fees and
expenses and to refinance certain existing Indebtedness of the Borrower and
its Subsidiaries. The proceeds of the Revolving Credit Loans, the Swing Line
Loans and the Letters of Credit, shall be used to finance a portion of the
Recapitalization and for general corporate purposes of the Borrower and its
Subsidiaries in the ordinary course of business (including, without
limitation, acquisitions or Investments permitted by Section 7.8(h)).
4.17 Environmental Matters. Except as disclosed on Schedule 4.17
or in any reports filed by Holdings with the SEC, and other than exceptions to
any of the following that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect:
(a) the Borrower and its Subsidiaries: (i) are, and for the past
three years have been, in compliance with all applicable Environmental
Laws; (ii) hold all Environmental Permits (each of which is in full
force and effect) required for any of their current operations or for
any property owned or leased by any of them; (iii) are, for the past
three years have been, in compliance with all of their Environmental
Permits; and (iv) to the knowledge of the Borrower, there are no facts
or circumstances reasonably likely to result in the revocation or
violation of, or the inability to timely renew or comply with, any
Environmental Permit, or the inability to comply with any Environmental
Law that is or is expected to become applicable, required for the
operations of the Borrower or any of its Subsidiaries as currently
conducted;
(b) to the knowledge of the Borrower, there have no releases of
Materials of Environmental Concern at, on, under or in any real Property
now or formerly owned, leased or operated by the Borrower or any of its
Subsidiaries, or at any other location to which the Borrower or any of
its Subsidiaries have sent Materials of Environmental Concern for re-use
or recycling or for treatment, storage, or disposal which could
reasonably be expected to (i) result in liability of the Borrower or any
of its Subsidiaries under any Environmental Law or otherwise result in
costs to the Borrower or any of its Subsidiaries, or (ii) interfere with
the Borrower's or any of its Subsidiaries' continued operations, or
(iii) impair the fair saleable value of any real property owned or
leased by the Borrower or any of its Subsidiaries;
(c) there is no judicial, administrative, or arbitral proceeding
(including any written notice of violation or alleged violation) against
the Borrower or any of its Subsidiaries under or relating to any
Environmental Law;
(d) neither the Borrower nor any of its Subsidiaries has received
any written request for information or written notice that it is a
potentially responsible party under the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 or any
similar Environmental Law, or with respect to any Materials of
Environmental Concern;
(e) neither the Borrower nor any of its Subsidiaries has entered
into or agreed to any final judgment, consent decree or order in any
judicial, administrative, arbitral, or other forum for dispute
resolution, relating to a violation by the Borrower or any of its
Subsidiaries of any Environmental Law; and
(f) since January 1, 1992, neither the Borrower nor any of its
Subsidiaries has assumed or retained, by contract or operation of law,
any liabilities of any kind which could reasonably be expected to give
rise to a claim under any Environmental Law, relating to noncompliance
with any Environmental Law or with respect to any Material of
Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Credit Document, the Confidential
Information Memorandum or any other document, certificate or statement
furnished to the Administrative Agent or the Lenders or any of them, by or on
behalf of any Credit Party for use in connection with the transactions
contemplated by this Agreement or the other Credit Documents, contained as of
the date such statement, information, document or certificate was so furnished
(or, in the case of the Confidential Information Memorandum, as of the date of
this Agreement) and when taken as a whole with other such statements and
information theretofore so furnished, any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading; provided that with respect to the
projections and pro forma financial information contained in the materials
referenced above (including, without limitation, the Projected Financial
Statements) each of Holdings and its Subsidiaries represents only that such
projections and pro forma financial information are based upon good faith
estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein
by a material amount.
4.19 Security Documents. (a) The Non-Shared Guarantee and
Collateral Agreement, the Shared Collateral Pledge Agreement and each Foreign
Subsidiary Pledge Agreement is effective to create in favor of the
Administrative Agent or the Collateral Trustee, as the case may be, for the
benefit of the Lenders (and, to the extent required by the Existing Senior
Notes Indenture, the holders of the Existing Senior Notes on an equal and
ratable basis with the Lenders), a legal, valid and enforceable security
interest in the Collateral described therein. In the case of the certificated
Pledged Stock covered by the Shared Collateral Pledge Agreement and/or each
Foreign Subsidiary Pledge Agreement, when any stock certificate representing
such Pledged Stock is delivered to the Collateral Trustee (accompanied by an
undated stock power endorsed in blank), and in the case of the other
Collateral described in the Non-Shared Guarantee and Collateral Agreement and
the Shared Collateral Pledge Agreement (to the extent perfection of a security
interest in such Collateral can be obtained by filing Uniform Commercial Code
Financing Statements), when financing statements in appropriate form are filed
in the offices specified on Schedule 4.19(a) (which financing statements have
been duly completed and executed and delivered to the Administrative Agent)
and such other filings as are specified on the applicable Schedules to the
Non-Shared Guarantee and Collateral Agreement and the Shared Collateral Pledge
Agreement (all of which filings have been duly completed), the Non-Shared
Guarantee and Collateral Agreement, the Shared Collateral Pledge Agreement or
such Foreign Subsidiary Pledge Agreement, as the case may be, shall constitute
a perfected Lien on, and security interest in, all right, title and interest
of the Credit Parties in such Collateral, as security for the Secured
Obligations (as defined in the Non-Shared Guarantee and Collateral Agreement,
the Shared Collateral Pledge Agreement or such Foreign Subsidiary Pledge
Agreement, as the case may be), in each case prior and superior in right to
any other Person (except for Liens permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent for the benefit of the Lenders (or, in the case of any
Mortgaged Property that constitutes Principal Property, the Collateral Trustee
for the benefit of the Lenders and the holders of the Existing Senior Notes on
an equal and ratable basis), a legal, valid and enforceable Lien on the
Mortgaged Properties described therein and proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 4.19(b), each such
Mortgage shall constitute a perfected Lien on all right, title and interest of
the Credit Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Secured Obligations (as defined in the relevant Mortgage), in
each case prior and superior in right to any other Person, except for Liens
permitted by Section 7.3.
4.20 Solvency. Holdings and its Subsidiaries, on a consolidated
basis, are, and after giving effect to the Recapitalization and the incurrence
of all Indebtedness and obligations being incurred in connection herewith and
therewith will be and will continue to be, Solvent.
4.21 Senior Debt. The Obligations constitute "Senior Debt" of
the Borrower under and as defined in the Senior Subordinated Notes Indenture .
The Guarantee Obligations of Holdings and each Subsidiary Guarantor under the
Non-Shared Guarantee and Collateral Agreement constitute "Senior Debt" of such
Subsidiary Guarantor under and as defined in the Senior Subordinated Notes
Indenture.
4.22 Real Property. Set forth on Schedule 4.22 is complete and
correct list, as of the Closing Date (after giving effect to the
Recapitalization), of all of the real property interests held by the Borrower
and its Subsidiaries, indicating in each case whether the respective property
is owned or leased, the identity of the owner or lessee and the location of
the respective property.
4.23 Year 2000 Matters. Any replacement or repair (including
reprogramming) required to permit the proper processing of dates after
December 31, 1999, of (i) the Borrower's computer systems and (ii) equipment
containing embedded microchips and the testing of all such systems and
equipment (including, where reasonably available and material to the Borrower,
the testing or receipt of other commercially reasonable assurance with respect
to such systems and equipment supplied by others or with which the Borrower's
systems interface), as replaced or repaired, will be completed by September
30, 1999. The cost to the Borrower of such replacement and repair (including
reprogramming) and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower will not result in a Default or a Material Adverse
Effect.
4.24 No Burdensome Restrictions. Neither the Borrower nor any of
its Subsidiaries is a party to any agreements or other contractual
arrangements imposing unduly burdensome requirements upon the Borrower or any
of its Subsidiaries that (taking into account, in the case of any such
agreements or other arrangements, the benefits of such agreements or other
arrangements to the Borrower or such Subsidiary) could reasonably be expected
to result in a Material Adverse Effect.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit on the Closing Date, of the following conditions
precedent:
(a) Credit Documents. The Syndication Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer
of Holdings and the Borrower, (ii) the Non-Shared Guarantee and
Collateral Agreement, executed and delivered by a duly authorized
officer of Holdings, the Borrower and each Subsidiary Guarantor, (iii)
the Shared Collateral Pledge Agreement, executed and delivered by a duly
authorized officer of Holdings, the Borrower, each Subsidiary Guarantor
and the Collateral Trustee, (iv) a Mortgage covering each of the
Mortgaged Properties, executed and delivered by a duly authorized
officer of each party thereto, (v) a Foreign Subsidiary Pledge
Agreement, in form and substance satisfactory to the Agents, between the
Borrower and/or each Subsidiary of the Borrower that holds equity
interests of a Foreign Subsidiary designated on Schedule 4.15 as a
Foreign Subsidiary for which a Foreign Subsidiary Pledge Agreement is to
be delivered, executed and delivered by a duly authorized officer of the
Borrower and/or such Subsidiary, (vi) the Collateral Trust Agreement,
executed and delivered by a duly authorized officer of Holdings, the
Borrower, each Subsidiary Guarantor and the Collateral Trustee and (vii)
for the account of each requesting Lender, Notes conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) Recapitalization, etc. The following transactions shall have
been (or shall be simultaneously) consummated:
(i) The Recapitalization shall have been effected through
the merger of Newco into Holdings pursuant to and in accordance in
all material respects with the terms of the Merger Agreement, and
no condition or other provision thereof shall have been waived,
amended, supplemented or otherwise modified in any respect that is
materially adverse to the interests of the Lenders or the Agents,
unless the Lenders and, if applicable, the Agents shall have
approved such waiver, amendment, supplement or modification;
(ii) Newco shall have received $417,500,000 cash common
equity contributed by LBMBP II, its Affiliates and certain other
investors reasonably satisfactory to the Syndication Agent
pursuant to the Equity Documents (collectively, the "New
Investors") and, pursuant to the Recapitalization certain existing
stockholders of Holdings shall have retained common equity of
Holdings, such that Holdings shall (after giving effect to the
Recapitalization) have at least $462,000,000 of common equity (at
least 85% of which shall be owned by the New Investors); and
(iii) The Borrower shall have received at least
$325,000,000 in gross cash proceeds from the issuance of the
Senior Subordinated Notes.
(c) Aggregate Consideration. The Syndication Agent shall have
received evidence satisfactory to the Syndication Agent that the
Recapitalization shall have been (or shall be simultaneously)
consummated for an aggregate consideration not exceeding $1,400,000,000
(including (i) the payment of related fees and expenses, (ii) the
assumption of the Existing Senior Notes and (iii) the refinancing of
existing Indebtedness of the Borrower of up to $15,000,000).
(d) Pro Forma Balance Sheets; Financial Statements; Projections.
The Lenders shall have received (i) the Pro Forma Balance Sheets, (ii)
audited consolidated financial statements of Holdings and its
consolidated Subsidiaries for the 1997 and 1998 fiscal years and
(iii) unaudited interim consolidated financial statements of (A)
Holdings and its consolidated Subsidiaries and (B) the Borrower and its
consolidated Subsidiaries, in each case for each quarterly period
referred to in the second sentence of Section 4.1(b).
(e) Approvals, Etc. All material governmental and third party
approvals required to be obtained pursuant to the Merger Agreement and
the transactions contemplated hereby shall have been obtained and be in
full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose material
adverse conditions on the Recapitalization or the financing contemplated
hereby.
(f) Related Agreements. The Syndication Agent shall have
received (in a form reasonably satisfactory to the Agents), true and
correct copies, certified as to authenticity by the Borrower, of the
Merger Agreement, the Senior Subordinated Notes Indenture and such other
related documents or instruments as may be reasonably requested by the
Syndication Agent, including, without limitation, a copy of any other
debt instrument, security agreement or other material contract to which
any Credit Party may be a party.
(g) Repayment of Existing Indebtedness. The Syndication Agent
shall have received evidence satisfactory to the Agents that the
Existing Credit Facility shall have been (or shall be simultaneously)
terminated, all amounts thereunder or in respect of any other
Indebtedness indicated on Schedule 7.2(d) that is to be repaid on the
Closing Date shall have been (or shall be simultaneously) paid in full
and arrangements satisfactory to the Syndication Agent shall have been
made for the termination of Liens and security interests granted in
connection therewith.
(h) Fees. The Lenders, the Arranger and the Agents shall have
received all fees required to be paid, and all expenses for which
invoices have been presented (including reasonable fees, disbursements
and other charges of counsel to the Agents), on or before the Closing
Date. All such amounts will be paid with proceeds of Loans made on the
Closing Date and will be reflected in the funding instructions given by
the Borrower to the Agents on or before the Closing Date.
(i) Solvency. The Syndication Agent shall have received a
reasonably satisfactory certificate of the chief financial officer of
Holdings as to the solvency of Holdings and its Subsidiaries after
giving effect to the Recapitalization and the other transactions
contemplated hereby.
(j) Lien Searches. The Syndication Agent shall have received the
results of a recent lien search in each of the jurisdictions where
assets of the Credit Parties are located, and such search shall reveal
no liens on any of the assets of Holdings, the Borrower or its
Subsidiaries except for liens permitted by Section 7.3 or disclosed in
the Merger Agreement or liens to be discharged on or prior to the
Closing Date pursuant to documentation reasonably satisfactory to the
Syndication Agent.
(k) Environmental Matters. The Syndication Agent shall have
received information on environmental matters regarding the material
real Property of the Borrower and its Subsidiaries, including
environmental assessments, reasonably satisfactory to the Syndication
Agent.
(l) Expenses. The Syndication Agent shall have received
satisfactory evidence that the fees and expenses to be incurred in
connection with the Recapitalization and the financing thereof
(excluding the cost of repurchasing or retiring stock options held by
certain existing shareholders of Holdings immediately prior to the
Recapitalization) shall not exceed $50,000,000.
(m) Closing Certificate. The Syndication Agent shall have
received a certificate of each Credit Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments.
(n) Legal Opinions. The Syndication Agent shall have received
the following executed legal opinions:
(i) the legal opinion of Cravath, Swaine & Moore, special
counsel to Holdings and its Subsidiaries, substantially in the
form of Exhibit F-1;
(ii) the legal opinion of the General Counsel of the Credit
Parties, substantially in the form of Exhibit F-2;
(iii) the legal opinion of Milbank, Tweed, Hadley & McCloy
LLP, special New York counsel to the Syndication Agent,
substantially in the form of Exhibit F-3;
(iv) to the extent consented to by the relevant counsel,
each legal opinion, if any, delivered in connection with the
Merger Agreement, accompanied by a letter from the counsel
delivering such opinion (or authorization within such opinion)
authorizing reliance thereon by the Agents and the Lenders; and
(v) the legal opinion of local counsel in each jurisdiction
where a Mortgaged Property (designated on Schedule 1.1 as a
Mortgaged Property in respect of which a legal opinion of local
counsel is to be delivered) is located or where a Foreign
Subsidiary, the shares of which are pledged pursuant to a Foreign
Subsidiary Pledge Agreement, is organized, and of such other
special and local counsel as may be required by the Agents.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as either Agent may
reasonably require.
(o) Pledged Stock; Stock Power; Pledged Notes . The Syndication
Agent shall have received evidence satisfactory to it that the
Collateral Trustee shall have received (i) the certificates representing
the shares of certificated Capital Stock pledged pursuant to the
Shared Collateral Pledge Agreement and each Foreign Subsidiary Pledge
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note pledged to the Collateral
Trustee pursuant to the Shared Collateral Pledge Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form
in blank satisfactory to the Agents) by the pledgor thereof.
(p) Filings, Registrations and Recordings. Each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or reasonably
requested by the Agents to be filed, registered or recorded in order to
create in favor of the Administrative Agent or the Collateral Trustee,
as the case may be, for the benefit of the Lenders (and, to the extent
required by the Existing Senior Notes Indenture, the holders of the
Existing Senior Notes on an equal and ratable basis with the Lenders), a
perfected Lien on the Collateral described therein, prior and superior
in right to any other Person (other than with respect to Liens expressly
permitted by Section 7.3), shall be in proper form for filing,
registration or recordation.
(q) Title Insurance; Flood Insurance. (i) The Syndication Agent
shall have received, and the title insurance company issuing the policy
referred to in clause (ii) below (the "Title Insurance Company") shall
have received, maps or plats of an as-built survey of the sites of the
Mortgaged Properties designated on Schedule 1.1 as Mortgage Properties
for which a survey is to be delivered, certified to the Agents and the
Title Insurance Company in a manner satisfactory to them, dated a date
satisfactory to the Agents and the Title Insurance Company by an
independent professional licensed land surveyor satisfactory to the
Agents and the Title Insurance Company, which maps or plats and the
surveys on which they are based shall be reasonably satisfactory to the
Agents, and there shall be surveyed and shown on such maps, plats or
surveys such matters as may be reasonably requested by the Agents.
(ii) The Syndication Agent shall have received in respect
of each Mortgaged Property designated on Schedule 1.1 as a Mortgaged
Property for which a mortgagee's title insurance policy is to be
delivered a mortgagee's title insurance policy (or policies) or marked
up unconditional binder for such insurance. Each such policy shall (A)
be in an amount satisfactory to the Agents; (B) be issued at ordinary
rates; (C) insure that the Mortgage insured thereby creates a valid
first Lien on such Mortgaged Property free and clear of all defects and
encumbrances, except such defects and encumbrances approved by the
Agents; (D) name the Administrative Agent for the benefit of the Lenders
(or, in the case of any Mortgaged Property which constitutes Principal
Property, the Collateral Trustee for the benefit of the Lenders and the
holders of the Existing Senior Notes on an equal and ratable basis) as
the insured thereunder; (E) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain
such endorsements and affirmative coverage as the Agents may reasonably
request and (G) be issued by title companies satisfactory to the Agents
(including any such title companies acting as co-insurers or reinsurers,
at the option of the Agents). The Administrative Agent shall have
received evidence satisfactory to it that all premiums in respect of
each such policy, all charges for mortgage recording tax, and all
related expenses, if any, have been (or shall be simultaneously) paid.
(iii) If requested by the Agents, the Syndication Agent
shall have received (A) a policy of flood insurance which (1) covers any
parcel of improved real property which is encumbered by any Mortgage (2)
is written in an amount not less than the outstanding principal amount
of the indebtedness secured by such Mortgage which is reasonably
allocable to such real property or the maximum limit of coverage made
available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a
term ending not later than the maturity of the Indebtedness secured by
such Mortgage and (B) confirmation that the Borrower has received the
notice required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(iv) The Syndication Agent shall have received a copy of
all recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in clause (ii) above and a copy
of all other material documents affecting the Mortgaged Properties.
(r) Insurance. The Syndication Agent shall have received
insurance certificates satisfying the requirements of Section 6.5(b).
(s) Other Documents, etc. The Syndication Agent shall have
received such other certificates, legal opinions and documents as it may
reasonably request.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by any Credit Party in or pursuant to the Credit
Documents shall be true and correct on and as of such date as if made on
and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of Holdings and the Borrower shall and shall cause each of its
Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent (and the
Administrative Agent shall promptly furnish to each Lender):
(a) as soon as available, but in any event within 95 days after
the end of each fiscal year of Holdings, a copy of the audited
consolidated balance sheet of Holdings and its consolidated Subsidiaries
as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each
fiscal year of Holdings, the unaudited consolidated balance sheet of
Holdings and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments).
All such financial statements, together with the schedules and notes to such
financial statements, shall present fairly in all material respects the
consolidated financial condition of Holdings and its consolidated Subsidiaries
and shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
6.2 Certificates; Other Information. Furnish to each Agent (and
the Administrative Agent shall promptly furnish to each Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating, in performing their audit, nothing came to their attention that
caused them to believe that Holdings and the Borrower failed to comply
with the provisions of Section 7.1, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
each Credit Party during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Credit Documents to which it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, (x) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by Holdings, the Borrower and its Subsidiaries with the
provisions of this Agreement referred to therein as of the last day of
the fiscal quarter or fiscal year of Holdings, as the case may be, and
(y) to the extent not previously disclosed to the Administrative Agent,
a listing of any county or state within the United States where any
Credit Party keeps inventory (other than inventory held by a third party
on a consignment basis or otherwise the aggregate value of which does
not exceed $3,000,000) or equipment and of any Intellectual Property
acquired by any Credit Party since the date of the most recent list
delivered pursuant to this clause (y) (or, in the case of the first such
list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 90 days
after the beginning of each fiscal year of Holdings, a reasonably
detailed consolidated budget for the current fiscal year (including a
projected consolidated balance sheet of Holdings as of the end of the
current fiscal year, and the related consolidated statements of
projected cash flow, projected changes in financial position and
projected income), and, as soon as available, significant revisions, if
any, of such budget and projections with respect to such fiscal year
(collectively, the "Projections"), which Projections shall in each case
be accompanied by a certificate of a Responsible Officer stating that
such Projections have been prepared in good faith and are based on good
faith estimates and assumptions believed by the Borrower to be
reasonable at the time made (it being recognized by the Lenders that
such opinions, projections and forecasts as to any future event or state
of affairs are not to be viewed as factual information and that actual
results during the period or period covered by any such opinion,
projection or forecast may differ from the opinions and projected or
forecast results);
(d) (i) concurrently with the delivery of any financial
statements pursuant to Section 6.1(a), a narrative discussion and
analysis of the financial condition and results of operations of
Holdings and its Subsidiaries for such fiscal year and (ii) concurrently
with the delivery of any financial statements pursuant to Section
6.1(b), a narrative discussion and analysis of the financial condition
and results of operations of Holdings and its Subsidiaries for such
fiscal quarter, and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter (it being
understood that delivery to the Agents of Holdings' Report on Form 10-K
or Report on Form 10-Q, as applicable, filed with the SEC shall satisfy
the requirements of this Section 6.2(d) so long as the information
required to be contained in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" section of such Report is
substantially the same as that required under this Section 6.2(d));
(e) within five days after the same are sent, copies of all
financial statements and reports which Holdings or the Borrower sends to
the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all
financial statements and reports which Holdings or the Borrower may make
to, or file with, the SEC;
(f) as soon as possible and in any event within five days of
obtaining knowledge thereof: (i) any development, event, or condition
that, individually or in the aggregate with other developments, events
or conditions, could reasonably be expected to result in a Material
Adverse Effect; and (ii) any notice that any governmental authority may
deny any application for an Environmental Permit sought by, or revoke or
refuse to renew any Environmental Permit held by, the Borrower or any of
its Subsidiaries; and
(g) promptly, such additional financial and other information as
any Agent (or any Lender through the Administrative Agent) may from time
to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be,
all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of Holdings, the Borrower or its Subsidiaries, as
the case may be; provided that the Borrower and its Subsidiaries shall not be
prohibited from extending the date of payment of any trade payables consistent
with prudent business practices for companies engaged in the same or a similar
business.
6.4 Conduct of Business and Maintenance of Existence, etc. (a)
(i) Preserve, renew and keep in full force and effect its corporate existence
(except for Non-Operating Subsidiaries) and (ii) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business (except, in the case of clauses (i) and (ii)
above, as otherwise permitted by Section 7.4, and except, in the case of
clauses (i) (with respect to Non-Operating Subsidiaries only) and (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect); and (b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property
and systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) Maintain with financially sound and reputable insurance
companies insurance on all its Property in at least such amounts and against
at least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business (it
being understood that, to the extent consistent with prudent business practice
of Persons carrying on a similar business in a similar location, a program of
self-insurance for first or other loss layers may be utilized); and furnish to
the Administrative Agent with copies for each Lender, upon written request,
full information as to the insurance carried. The Agents and the Lenders
shall be named as additional insureds in respect of all public liability
insurance maintained by Holdings or its Subsidiaries and each of the
Administrative Agent and the Collateral Trustee shall be named as loss payee
in respect of all property and casualty insurance maintained by Holdings or
its Subsidiaries on their respective Property, as to the extent of their
interests therein. All insurance shall provide that no cancellation, material
reduction in amount or material change in coverage thereof shall be effective
until at least 30 days after receipt by the Administrative Agent of written
notice thereof.
6.6 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
(except to the extent any such access is restricted by a Requirement of Law)
at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of Holdings, the Borrower and its Subsidiaries with officers and employees of
Holdings, the Borrower and its Subsidiaries and with its independent certified
public accountants; provided that (i) the Administrative Agent or such Lender
shall notify Holdings prior to any contact with such accountants and give
Holdings and the Borrower the opportunity to participate in such discussions,
(ii) neither the Borrower nor any of its Subsidiaries will be required to
disclose any confidential information that it is precluded from disclosing to
the Agents or the Lender irrespective of the limitation set forth in Section
10.14 or the execution and delivery of a separate confidentiality agreement,
(iii) the Lenders shall be permitted to remove copies of documents and other
materials from premises of the Borrower or any of its Subsidiaries only with
the consent of the Borrower (such consent not to be unreasonably withheld),
(iv) any request by a Lender for any visit, inspection or discussion shall be
made through the Administrative Agent and the timing of any such visits or
discussions shall be coordinated with the Administrative Agent so as to
minimize the disruption of the business of the Borrower and its Subsidiaries
and (v) the costs of any such visits shall be for the account of the relevant
Lender(s) and/or Agent(s) (except that during the continuation of a Default or
Event of Default any such costs of the Agents shall be for the account of the
Borrower).
6.7 Notices. Promptly give notice to the Agents of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) event of default under any Contractual Obligation of
Holdings, the Borrower or any of its Subsidiaries, (ii) litigation,
investigation or proceeding which may exist at any time between
Holdings, the Borrower or any of its Subsidiaries and any Governmental
Authority, which in the case of either clause (i) or (ii), if not cured
or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect or (iii) any material
Disposition of Property by the Borrower or any of its Subsidiaries
(describing in reasonable detail the Property sold, the consideration
received therefor and the proposed use of the proceeds thereof);
(c) any other litigation or proceeding affecting Holdings, the
Borrower or any of its Subsidiaries in which the amount involved is
$1,000,000 or more and not covered by insurance or in which injunctive
or similar relief is sought;
(d) the following events, as soon as possible and, in any event,
within 30 days after the Borrower knows thereof: (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any Multiemployer
Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan;
(e) copies of all material notices which Holdings or the Borrower
receives from or on behalf of the holders of any class of its debt
securities (including, without limitation, any notice of acceleration of
the Senior Subordinated Notes or the Existing Senior Notes); and
(f) any development or event which has had or, in the judgment of
the Borrower, could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects
with, and use its reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain, and use its reasonable efforts to ensure that all tenants and
subtenants obtain and comply in all material respects with and maintain, any
and all Environmental Permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. In the case of the Borrower,
within 180 days after the Closing Date, enter into and thereafter maintain in
full force and effect through the second anniversary of the Closing Date, one
or more Hedge Agreements to the extent necessary to provide that at least 33%
of the aggregate principal amount of the Term Loans is subject to a fixed
interest rate, which Hedge Agreements shall have terms and conditions
reasonably satisfactory to the Syndication Agent.
6.10 Additional Collateral, etc. (a) With respect to any
Property acquired after the Closing Date by Holdings, the Borrower or any of
its Subsidiaries (other than (x) any real property or the Capital Stock of any
new Subsidiary and (y) Property acquired by a Foreign Subsidiary) as to which
the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, promptly (but in any event within 30 days after the
acquisition thereof) (i) execute and deliver to the Administrative Agent such
amendments to the relevant Security Documents or such other documents as the
Agents deem necessary or advisable to grant to the Administrative Agent or the
Collateral Trustee, as the case may be, for the benefit of the Lenders (and,
to the extent required by the Existing Senior Notes Indenture, the holders of
the Existing Senior Notes on an equal and ratable basis with the Lenders), a
security interest in such Property, (ii) take all actions necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in such Property except
for Liens permitted by Section 7.3, including without limitation, the filing
of Uniform Commercial Code financing statements in such jurisdictions as may
be required by such Security Documents or by law or as may be requested by the
Agents and (iii) if requested by the Agents, deliver to the Administrative
Agent legal opinions, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Agents.
(b) With respect to any fee interest in any real property having
a value (together with improvements thereof) of at least $500,000 acquired
after the Closing Date by Holdings, the Borrower or any of its Subsidiaries
(other than any such real property owned by a Foreign Subsidiary), promptly
(but in any event within 30 days after the acquisition thereof) (i) execute
and deliver a first priority Mortgage in favor of the Administrative Agent,
for the benefit of the Lenders (or, if such property constitutes Principal
Property, in favor of the Collateral Trustee for the benefit of the Lenders
and the holders of the Existing Senior Notes on an equal and ratable basis),
covering such real property, (ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance covering
such real property in an amount at least equal to the purchase price of such
real estate (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current survey thereof, together with a
surveyor's certificate (in each case satisfactory to the Agents) and (y) any
consents or estoppels reasonably deemed necessary or advisable by the Agents
in connection with such mortgage or deed of trust, each of the foregoing in
form and substance reasonably satisfactory to the Agents and (iii) if
requested by either Agent, deliver to the Administrative Agent legal opinions
in form and substance, and from counsel, reasonably satisfactory to the
Agents.
(c) With respect to any new Subsidiary (other than a Foreign
Subsidiary) created or acquired after the Closing Date (which, for the
purposes of this paragraph, shall include any existing Subsidiary that ceases
to be a Foreign Subsidiary), by Holdings, the Borrower or any of its
Subsidiaries, promptly (but in any event within 30 days after the creation or
acquisition thereof) (i) execute and deliver to the Administrative Agent such
amendments to the relevant Security Documents or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Collateral
Trustee, for the benefit of the Lenders and the holdings of the Existing
Senior Notes on an equal and ratable basis, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is owned
by Holdings, the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent evidence satisfactory to it of the delivery to the
Collateral Trustee of the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of Holdings, the Borrower or such Subsidiary, as the case
may be, (iii) cause such new Subsidiary (A) to become a party to such Credit
Documents and (B) to take such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders (and, to the extent
required by the Existing Senior Notes Indenture, the Collateral Trustee for
the benefit of the Lenders and the holders of the Existing Senior Notes on an
equal and ratable basis) a perfected first priority security interest in the
Collateral described in such Security Documents with respect to such new
Subsidiary, including, without limitation, the filing of Uniform Commercial
Code financing statements in such jurisdictions as may be required by such
Credit Documents or by law or as may be requested by the Administrative Agent,
and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Agents.
(d) With respect to any new Foreign Subsidiary (other than an
Excluded Foreign Subsidiary) created or acquired after the Closing Date by
Holdings, the Borrower or any of its Subsidiaries that is not a Foreign
Subsidiary, promptly (i) execute and deliver to the Agents such amendments to
the relevant Security Documents or, at the request of the Agents, a Foreign
Subsidiary Pledge Agreement, as the Agents deem necessary or advisable in
order to grant to the Collateral Trustee for the benefit of the Lenders and
the holders of the Existing Senior Notes, on an equal and ratable basis, a
perfected first priority security interest in the Capital Stock of such new
Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided
that in no event shall more than 65% of the total outstanding voting Capital
Stock of any such new Subsidiary be required to be so pledged), (ii) deliver
to the Administrative Agent satisfactory evidence of delivery to the
Collateral Trustee of any certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be, and
take such other action as may be necessary or, in the opinion of the Agents,
desirable to perfect the Lien of the Collateral Trustee thereon, and (iii) if
requested by the Agents, deliver to the Administrative Agent legal opinions in
form and substance, and from counsel, reasonably satisfactory to the Agents.
In addition, if at any time a Foreign Subsidiary ceases to be an Excluded
Foreign Subsidiary, the Borrower shall take such action, and shall cause its
relevant Subsidiaries to take such action, as shall be necessary to satisfy
the foregoing requirements of this Section 6.10(d) as if such Foreign
Subsidiary had been created or acquired on the date on which it ceased to be
an Excluded Foreign Subsidiary.
6.11 Further Assurances. From time to time execute and deliver,
or cause to be executed and delivered, such additional instruments,
certificates or documents, and take all such actions, as the Agents may
reasonably request, for the purposes of implementing or effectuating the
provisions of this Agreement and the other Credit Documents, or of more fully
perfecting or renewing the rights of the Administrative Agent and the Lenders
with respect to the Collateral (or with respect to any additions thereto or
replacements or proceeds thereof or with respect to any other property or
assets hereafter acquired by the Borrower which may be deemed to be part of
the Collateral) pursuant hereto or thereto. Without limiting the foregoing,
if at any time the Existing Senior Notes are refinanced, each of Holdings and
the Borrower agree to execute and deliver (and to cause their respective
Subsidiaries to deliver), such amendments to the relevant Security Documents
and such other documents, and to take all other actions, as the Agents deem
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Collateral (or to continue any security interest previously granted
thereunder).
SECTION 7. NEGATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that,
so long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of Holdings and the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of Holdings ending with any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Ending Leverage Ratio
December 31, 1999 5.90 to 1
March 31, 2000 5.90 to 1
June 30, 2000 5.90 to 1
September 30, 2000 5.75 to 1
December 31, 2000 5.75 to 1
March 31, 2001 5.75 to 1
June 30, 2001 5.75 to 1
September 30, 2001 5.50 to 1
December 31, 2001 5.25 to 1
March 31, 2002 5.25 to 1
June 30, 2002 5.25 to 1
September 30, 2002 5.00 to 1
December 31, 2002 4.75 to 1
March 31, 2003 4.75 to 1
June 30, 2003 4.75 to 1
September 30, 2003 4.50 to 1
December 31, 2003 4.25 to 1
March 31, 2004 4.25 to 1
June 30, 2004 4.25 to 1
September 30, 2004 4.00 to 1
December 31, 2004 4.00 to 1
March 31, 2005 4.00 to 1
June 30, 2005 4.00 to 1
September 30, 2005 3.75 to 1
December 31, 2005 3.75 to 1
March 31, 2006 3.75 to 1
June 30, 2006 3.75 to 1
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of Holdings ending with any fiscal quarter set forth below to be less
than the ratio set forth below opposite such fiscal quarter:
Consolidated Interest
Fiscal Quarter Ending Coverage Ratio
December 31, 1999 1.50 to 1
March 31, 2000 1.50 to 1
June 30, 2000 1.50 to 1
September 30, 2000 1.50 to 1
December 31, 2000 1.60 to 1
March 31, 2001 1.60 to 1
June 30, 2001 1.60 to 1
September 30, 2001 1.75 to 1
December 31, 2001 2.00 to 1
March 31, 2002 2.00 to 1
June 30, 2002 2.00 to 1
September 30, 2002 2.25 to 1
December 31, 2002 2.50 to 1
March 31, 2003 2.50 to 1
June 30, 2003 2.50 to 1
September 30, 2003 2.75 to 1
December 31, 2003 2.75 to 1
March 31, 2004 3.00 to 1
June 30, 2004 3.00 to 1
September 30, 2004 3.00 to 1
December 31, 2004 3.00 to 1
March 31, 2005 3.25 to 1
June 30, 2005 3.25 to 1
September 30, 2005 3.25 to 1
December 31, 2005 3.25 to 1
March 31, 2006 3.25 to 1
June 30, 2006 3.25 to 1
7.2 Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of any Credit Party pursuant to any Credit
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary Guarantor to the Borrower or any other Subsidiary and of any
Foreign Subsidiary to the Borrower or any other Subsidiary; provided
that the sum of (i) the aggregate amount of Indebtedness owing by
Foreign Subsidiaries to the Borrower or any Subsidiary Guarantor
pursuant to this Section 7.2(b), (ii) the aggregate amount of Guarantee
Obligations of the Borrower or any Subsidiary Guarantor in respect of
obligations of Foreign Subsidiaries pursuant to Section 7.2(e)(ii) and
(iii) the aggregate amount of Investments in Foreign Subsidiaries
pursuant to Section 7.8(c) or (f)(ii) shall not exceed, without
duplication, $50,000,000 (or its equivalent in foreign currency) at any
time outstanding;
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) incurred to finance the acquisition of fixed or capital
assets in an aggregate principal amount not to exceed $35,000,000 at any
one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) (excluding, however, (i) following the making of the
initial Loans hereunder, the Indebtedness that is to be repaid on the
Closing Date, as indicated on Schedule 7.2(d) and (ii) following any
date by which any other Indebtedness listed on Schedule 7.2(d) is to be
repaid, as indicated on Schedule 7.2(d), such other Indebtedness) and
any refinancings, refundings, renewals or extensions thereof (without
any increase in the principal amount thereof or any shortening of the
maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business
by the Borrower or any of its Subsidiaries of (i) obligations of the
Borrower or any Subsidiary Guarantor or (ii) subject to the proviso to
Section 7.2(b), obligations of any Foreign Subsidiary;
(f) (i) Indebtedness of any Credit Party under the Senior
Subordinated Notes Documents and (ii) Guarantee Obligations of Holdings
or any Subsidiary Guarantor in respect of such Indebtedness (provided
that, in each case, such Guarantee Obligations are subordinated to the
obligations of such Subsidiary Guarantor, as the case may be, under the
Non-Shared Guarantee and Collateral Agreement to the same extent as the
obligations of the Borrower in respect of the Senior Subordinated Notes
are subordinated to the Obligations), and any refinancing, refunding,
renewals or extensions thereof on terms and conditions satisfactory to
the Required Lenders;
(g) Indebtedness of Holdings and/or the Borrower under the
Existing Senior Notes Documents, and any refinancings, refundings,
renewals or extensions thereof on terms and conditions reasonably
satisfactory to the Agents and not materially less favorable to the
Lenders than the terms of such Indebtedness then in effect, so long as
the aggregate principal amount of such Indebtedness does not exceed 110%
of the aggregate principal amount of the Existing Senior Notes being
refinanced;
(h) Indebtedness of any Foreign Subsidiary owing to any Person
(other than Holdings, the Borrower or any of its Subsidiaries) in an
aggregate principal amount (for all Foreign Subsidiaries) not to exceed
$25,000,000 (or its equivalent in foreign currency) at any one time
outstanding (it being understood that if non-U.S. dollar Indebtedness is
incurred and, at the time of incurrence, it was permitted based on its
U.S. dollar equivalence, subsequent currency fluctuations shall not
cause a violation of this Section 7.4(h));
(i) Indebtedness assumed in connection with any Investment
permitted pursuant to Section 7.8(h);
(j) Guarantee Obligations of the Borrower or any of its
Subsidiaries in respect of Indebtedness of any Joint Venture that is an
Affiliate of the Borrower in an amount, together with the amount of
Investments by the Borrower and its Subsidiaries in Joint Ventures, not
to exceed, in the aggregate outstanding at any one time, 5% of
Consolidated Total Assets (or, if the Consolidated Leverage Ratio at any
time during the term of this Agreement is less than 5.0 to 1, 10% of
Consolidated Total Assets; provided that the aggregate amount of such
Guarantee Obligations outstanding at any one time shall not exceed 5% of
Consolidated Total Assets);
(k) Indebtedness in respect of commercial letters of credit
issued by banks and other financial institutions for account of the
Borrower or any of its Subsidiaries in an aggregate amount not exceeding
$7,500,000 at any one time outstanding; and
(l) additional Indebtedness of the Borrower or any of its
Subsidiaries (other than Foreign Subsidiaries) in an aggregate principal
amount (for the Borrower and all such Subsidiaries) not to exceed
$50,000,000 at any one time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings; provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which secure payments that are not more than 60 days delinquent
in accordance with their terms or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(e) (i) easements, rights-of-way, zoning restrictions, other
restrictions and other similar encumbrances which, in the aggregate, are
not substantial in amount and which do not in any case materially
detract from the value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries and (ii) exceptions which are set forth in any
title insurance policy delivered to the Agents pursuant to the terms of
this Agreement;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f), securing Indebtedness permitted by Section 7.2(d) (including,
without limitation, Liens created on the date hereof as a result of the
cash collateralization of the obligations of the Borrower under certain
letters of credit identified on Schedule 7.2(d));
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 7.2(c) to finance the
acquisition of fixed or capital assets; provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any Property other than the Property financed by such
Indebtedness (other than after acquired title in or on such Property and
proceeds of the existing collateral in accordance with the instrument
creating such Lien) and (iii) the principal amount of Indebtedness
secured by any such Lien shall at no time exceed 100% of the original
purchase price of such Property at the time it was acquired;
(h) Liens created pursuant to this Agreement and the Security
Documents (including (x) to the extent required by the Existing Senior
Notes Indenture, Liens securing the Existing Senior Notes and (y) in the
event the Existing Senior Notes are refinanced in accordance with
Section 7.2(g), Liens securing such refinancing Indebtedness so long as
such Liens do not encumber any type of Property not encumbered by the
Liens securing the Existing Senior Notes immediately prior to such
refinancing);
(i) any interest or title of a lessor under any lease entered
into by the Borrower or any other Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(j) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by Section 7.2(i); provided that (i) such Liens existed at the
time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not expanded to cover any
property or assets of such corporation after the time such corporation
becomes a Subsidiary (other than after acquired title in or on such
property and proceeds of the existing collateral in accordance with the
instrument creating such Lien), and (iii) the amount of Indebtedness
secured thereby is not increased;
(k) licenses, leases or subleases permitted hereunder granted to
other Persons not interfering in any material respect in the business of
the Borrower or any of its Subsidiaries;
(l) so long as no Default or Event of Default shall have occurred
and be continuing under clause (h) of Section 8, attachment or judgment
Liens in respect of judgments or decrees that have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the
entry thereof attachment or judgment Liens in an aggregate amount
outstanding at any one time not in excess of $5,000,000 (not paid or
fully covered by insurance as to which the relevant insurance company
has acknowledged in writing coverage above applicable deductibles);
(m) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by the Borrower, or any of its
subsidiaries in the ordinary course of business;
(n) Liens in favor of a banking institution arising by operation
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(o) Liens securing Indebtedness permitted under Section 7.2(k); and
(p) Liens not otherwise permitted by this Section 7.3 so long as
neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined, in the case of each such Lien, as of the date such Lien is
incurred) of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $25,000,000 at any one time.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) Holdings may consummate the Recapitalization;
(b) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any Subsidiary
Guarantor (provided that a Credit Party may only be merged or
consolidated with or into another Credit Party);
(c) any Subsidiary of the Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to the Borrower or
any other wholly-owned Subsidiary of the Borrower that is a Credit
Party; and
(d) any Foreign Subsidiary of the Borrower may be merged or
consolidated with or into, or Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to, any other Foreign Subsidiary of
the Borrower.
7.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out Property in the
ordinary course of business;
(b) the sale of inventory, the license of intellectual property
or the Disposition of cash or Cash Equivalents, in each case in the
ordinary course of business;
(c) Dispositions permitted by Section 7.4(b), (c) and (d);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary Guarantor;
(e) leases or subleases of Property not materially interfering
with the ordinary conduct of its business; and
(f) the Disposition of other assets having a fair market value
not to exceed 5% of Consolidated Total Assets in the aggregate during
any fiscal year of Holdings or 15% of Consolidated Total Assets in the
aggregate during the term of this Agreement; provided that the Net Cash
Proceeds thereof are applied in the manner and to the extent required by
Section 2.12(b).
7.6 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of Holdings,
the Borrower or any Subsidiary, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of Holdings, the Borrower or any
Subsidiary (collectively, "Restricted Payments"), except that:
(a) the Borrower may pay cash dividends to Holdings on the
Closing Date to the extent necessary to enable Holdings to consummate
the Recapitalization;
(b) any Subsidiary may make Restricted Payments to the Borrower
or any Subsidiary Guarantor;
(c) the Borrower may pay cash dividends to Holdings to permit
Holdings to repurchase, redeem or otherwise acquire or retire for value
any of Holdings' Capital Stock from present or former directors,
officers or employees of Holdings, the Borrower or any Subsidiary
pursuant to any management equity subscription agreement, stock option
agreement, employment agreement or any other management or employee
benefit plan or deferred compensation trust arrangement referred to in
Section 7.8(i); provided that the aggregate amount of payments under
this clause (c) subsequent to the date hereof (other than as a result of
death or disability) shall not exceed $2,500,000 in any twelve-month
period (with unused amounts in any calendar year being carried over to
succeeding calendar years, subject to a maximum of $5,000,000 in any
calendar year); and
(d) the Borrower may pay cash dividends to Holdings to permit
Holdings to (i) pay Management Fees permitted by Section 7.10(b)(v) and
(ii) pay any taxes which are due and payable by Holdings and the
Borrower as part of a consolidated group.
7.7 Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditure, except:
(a) Capital Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not exceeding, in the aggregate for the
Borrower and its Subsidiaries during any of the fiscal years of the
Borrower set forth below, the amount set forth opposite such fiscal year
below:
Fiscal Year Amount
----------- ------
1999 $25,000,000
2000 $40,000,000
2001 $42,500,000
2002 $45,000,000
2003 $45,000,000
2004 $45,000,000
2005 $50,000,000
provided that (i) up to 50% of any such amount referred to above, if not
so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year and (ii) Capital
Expenditures made pursuant to this clause (a) during any fiscal year
shall be deemed made, first, in respect of amounts carried over from the
prior fiscal year pursuant to subclause (i) above and, second, in
respect of amounts permitted for such fiscal year as provided above; and
(b) Capital Expenditures made with the proceeds of any
Reinvestment Deferred Amount received in connection with a Recovery
Event.
7.8 Limitation on Investments. Make any advance, loan, extension
of credit (by way of guaranty or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt securities
of, or any assets constituting an ongoing business from, or make any other
investment in, any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e) (but subject to the
proviso to Section 7.2(b));
(d) loans and advances to officers, directors and employees of
Holdings, the Borrower or any Subsidiaries of the Borrower in the
ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount for
Holdings, the Borrower and Subsidiaries of the Borrower not to exceed
$2,500,000 at any one time outstanding;
(e) Investments in Joint Ventures in an amount not to exceed, in
the aggregate outstanding (net of dividends and any other distribution
paid in respect thereof), 5% of Consolidated Total Assets;
(f) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) by the Borrower or any of its
Subsidiaries in (i) the Borrower or any Person that, prior to such
investment, is a Subsidiary Guarantor or (ii) subject to the proviso to
Section 7.2(b), Foreign Subsidiaries;
(g) Investments in existence on the Closing Date set forth in
Part C of Schedule 4.15 and extensions, renewals, modifications,
restatements or replacements thereof; provided that no such extension,
renewal, modification or replacement shall increase the original amount
of such Investment;
(h) Investments made to acquire all of the Capital Stock, or all
or substantially all of the assets (or all or substantially all of the
assets of any division), of any Person (other than a Borrower of any of
its Subsidiaries) that is engaged in a business permitted under Section
7.15; provided that (a) if such Investment is an acquisition of the
Capital Stock of any Person, such Person's board of directors or similar
governing body shall have approved such acquisition, (b) at the time of
each such Investment (both immediately prior to and after giving effect
to such Investment), (i) there shall exist no Default or Event of
Default and (ii) the aggregate consideration paid (excluding the portion
of such consideration paid with the proceeds of equity issuances or
Excess Cash Flow but including, in the case of an acquisition of assets,
any assumed obligations) in connection with all Investments made
pursuant to this paragraph (h) (x) during any fiscal year of Holdings
shall not exceed $20,000,000 (or, if the Consolidated Leverage Ratio at
the time of such Investment is less than 5.0 to 1, $50,000,000) and (y)
during the term of this Agreement shall not exceed $50,000,000 (or, if
the Consolidated Leverage Ratio at the time of such Investment is less
than 5.0 to 1, $125,000,000) and (c) at least five Business Days prior
to each such Investment, the Administrative Agent shall have received a
certificate of a Responsible Officer certifying as to the foregoing and
containing calculations, in form and substance reasonably satisfactory
to the Agents, demonstrating in reasonable detail compliance with this
paragraph (h) and Section 7.1 and with the debt incurrence covenant
under the Senior Subordinated Notes Indenture (in each case calculated
on a pro forma basis after giving effect to such Investment);
(i) Investments made in connection with (x) deferred compensation
trust arrangements existing, and as in effect, on the Closing Date or
(y) officer's life insurance obtained in the ordinary course of
business;
(j) in the case of Foreign Subsidiaries operating in Brazil,
Investments made in the ordinary course of business in (i) overnight
bank deposits, interest bearing accounts and certificates of deposit
with maturities of one year or less from the date of acquisition
thereof, in each case with any Brazilian commercial bank having a class
of debt securities rated at least B+ by S&P or B-1 by Moody's or (ii)
export notes in Dollars issued by a Brazilian commercial bank with
maturities of one year or less from the date of acquisition thereof (or,
if export notes are not available, certificates of deposit issued by a
Brazilian commercial bank with maturities of one year or less from the
date of acquisition thereof and denominated in Brazilian reals swapped
for Dollars pursuant to a Hedge Agreement);
(k) Investments in connection with Hedge Agreements permitted by
Section 7.16; and
(l) in addition to Investments otherwise expressly permitted by
this Section, Investments by the Borrower or any of its Subsidiaries in
an aggregate amount (valued at cost, at the time of such Investment) not
to exceed an aggregate of $10,000,000.
For purposes of clauses (c), (f)(ii) and (l) of this Section 7.8, the
aggregate amount of an Investment at any time shall be deemed to be equal to
(A) the aggregate amount of cash, together with the aggregate fair market
value of Property, loaned, advanced, contributed, transferred or otherwise
invested that gives rise to such Investment minus (B) the aggregate amount of
dividends, distributions or other payments received in cash in respect of such
Investment; the amount of an Investment shall not in any event be reduced by
reason of any write-off of such Investment nor increased by any increase in
the amount of earnings retained in the Person in which such Investment is made
that have not been dividended, distributed or otherwise paid out.
7.9 Limitation on Optional Payments and Modifications of
Instruments and Agreements, etc. (a) (i) Make or offer to make any optional
or voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease, the Existing Senior Notes and/or the Senior
Subordinated Notes (except as permitted by Section 7.2(f)), or segregate funds
for any such payment, prepayment, repurchase, redemption or defeasance or (ii)
amend, modify or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Existing
Senior Notes, the Senior Subordinated Notes (other than any such amendment,
modification, waiver or other change which (x) would extend the maturity or
reduce the amount of any payment of principal thereof, reduce the rate or
extend the date for payment of interest thereon or relax any covenant or other
restriction applicable to the Borrower or any of its Subsidiaries and (y) does
not involve the payment of a consent fee).
(b) Amend its certificate of incorporation in any manner that
adversely affects the rights of the Lenders under the Credit Documents or
their ability to enforce such rights.
(c) Designate any Indebtedness or other obligation, other than
Indebtedness under this Agreement and the Notes, as "Designated Senior Debt",
as such term is defined in the Senior Subordinated Notes Indenture as in
effect on the Closing Date, or any comparable designation that confers upon
the holders of such Indebtedness or other obligation (or any Person acting on
their behalf) the right to initiate blockage periods under the Senior
Subordinated Notes Indenture or any other Indebtedness or other obligation of
Holdings and its Subsidiaries.
(d) (i) Amend, supplement or otherwise modify (pursuant to a
waiver or otherwise) the terms and conditions of the indemnities and licenses
furnished to the Borrower or any of its Subsidiaries pursuant to the
Recapitalization Documents such that after giving effect thereto such
indemnities or licenses shall be materially less favorable to the interests of
the Credit Parties or the Lenders with respect thereto or (ii) otherwise
amend, supplement or otherwise modify the terms and conditions of the
Recapitalization Documents in any manner that adversely affects the interests
of the Lenders.
7.10 Limitation on Transactions with Affiliates. (a) Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than Holdings,
the Borrower or any Subsidiary Guarantor) unless such transaction is
(i) otherwise permitted under this Agreement and (ii) upon fair and reasonable
terms no less favorable to Holdings, the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, Holdings, the
Borrower and its Subsidiaries shall be entitled to make the following payments
and/or enter into the following transactions:
(i) the payment of reasonable and customary fees and
reimbursement of expenses payable to directors of the Borrower and
Holdings;
(ii) the employment arrangements with respect to the procurement
of services of directors, officers and employees in the ordinary course
of business and the payment of reasonable fees in connection therewith;
(iii) payments to directors and officers of the Borrower and its
Subsidiaries in respect of any indemnification of such Persons in such
respective capacities from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements, as the case may be, pursuant to the
organizational or governing documents or other corporate action of the
Borrower and its Subsidiaries, respectively, or pursuant to applicable
law;
(iv) the Recapitalization;
(v) so long as no Default or Event of Default shall have occurred
and be continuing, the payment of Management Fees in an aggregate amount
not to exceed $1,000,000 in respect of any single fiscal year; and
(vi) Investments permitted by Section 7.8(e), (f) or (g).
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by Holdings, the
Borrower or any Subsidiary of real or personal property which has been or is
to be sold or transferred by Holdings, the Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of
Holdings, the Borrower or such Subsidiary; provided that the Borrower or any
of its Subsidiaries may enter into (a) a sale and leaseback transaction if the
Borrower or such Subsidiary could have (i) incurred Indebtedness in an amount
equal to the Attributable Debt relating to such sale and leaseback transaction
and (ii) incurred a Lien to secure such Indebtedness, in each case in
accordance with the restrictions contained in this Agreement and other Credit
Documents and (b) any sale and leaseback transaction relating to newly
acquired property where such sale and leaseback is consummated within 180 days
after the initial acquisition of such assets by the Borrower or such
Subsidiary.
7.12 Limitation on Changes in Fiscal Periods. Permit the fiscal
year of Holdings to end on a day other than December 31 or change Holdings'
method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or suffer
to exist or become effective any agreement which prohibits or limits the
ability of Holdings, the Borrower or any of its Subsidiaries to create, incur,
assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, to secure the Obligations or, in the
case of any Guarantor, its obligations under the Non-Shared Guarantee and
Collateral Agreement, other than (a) this Agreement and the other Credit
Documents, (b) the Existing Senior Notes Indentures, (c) the Senior
Subordinated Notes Indenture and (d) any agreements governing any purchase
money Liens or Capital Lease Obligations otherwise permitted hereby (in which
case, any prohibition or limitation shall only be effective against the assets
financed thereby).
7.14 Limitation on Restrictions on Subsidiary Distributions.
Enter into or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Subsidiary to (a) make Restricted
Payments in respect of any Capital Stock of such Subsidiary held by, or pay
any Indebtedness owed to, the Borrower or any other Subsidiary, (b) make
Investments in the Borrower or any other Subsidiary or (c) transfer any of its
assets to the Borrower or any other Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions existing
under the Credit Documents, the Existing Senior Notes Indenture and the Senior
Subordinated Notes Indenture and (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into in
connection with the Disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary.
7.15 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or Joint Venture Affiliate, except
for those businesses in which the Borrower and its Subsidiaries are engaged on
the date of this Agreement or which are reasonably related thereto.
7.16 Hedge Agreements. Enter into or suffer to exist or become
effective any Hedge Agreement, other than (a) Hedge Agreements entered into
pursuant to Section 6.9 and (b) any other Hedge Agreements entered into in the
ordinary course of business and for non-speculative purposes.
7.17 Limitation on Activities of Holdings. In the case of
Holdings, notwithstanding anything to the contrary in this Agreement or any
other Credit Document, (a) conduct, transact or otherwise engage in, or commit
to conduct, transact or otherwise engage in, any business or operations other
than those incidental to its ownership of the Capital Stock of the Borrower,
(b) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or financial obligations, except (i) nonconsensual obligations
imposed by operation of law, (ii) pursuant to the Credit Documents to which it
is a party, (iii) obligations of Holdings as guarantor permitted under Section
7.2(f), (iv) obligations with respect to its Capital Stock and (v) obligations
of Holdings with respect to the payment of Management Fees permitted by
Section 7.10(b)(v), or (c) own, lease, manage or otherwise operate any
properties or assets (including cash (other than cash received in connection
with dividends made by the Borrower in accordance with Section 7.6 pending
application in the manner contemplated by said Section) and cash equivalents)
other than the ownership of shares of Capital Stock of the Borrower.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or under
any other Credit Document, within five days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any
Credit Party herein or in any other Credit Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement
or any such other Credit Document shall prove to have been inaccurate in
any material respect on or as of the date made or deemed made; or any
representation or warranty made by Newco or Holdings under the Merger
Agreement shall prove to have been inaccurate in any material respect
when made; or
(c) any Credit Party shall default in the observance or
performance of any agreement contained in (i) clause (i) of Section
6.4(a) (with respect to Holdings and the Borrower only), Section 6.7(a),
Section 7 or Section 2 of the Non-Shared Guarantee and Collateral
Agreement or (ii) Section 3.1 or 3.3(a) of any Mortgage, and (in the
case of clause (ii) only) such default shall continue unremedied for a
period of 10 days; or
(d) any Credit Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Credit Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days; or
(e) Holdings, the Borrower or any of its Subsidiaries shall (i)
default in making any payment of any principal of any Indebtedness
(including, without limitation, any Guarantee Obligation, but excluding
the Loans) on the scheduled or original due date with respect thereto
(giving effect to any applicable grace period); or (ii) default in
making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (iii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or beneficiary of such Indebtedness
(or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or (in the case of any such
Indebtedness constituting a Guarantee Obligation) to become payable;
provided that a default, event or condition described in clause (i),
(ii) or (iii) of this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $5,000,000; or
(f) (i) Holdings, the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or Holdings, the Borrower or any of its Subsidiaries shall make
a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against Holdings, the Borrower or any of its
Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against Holdings, the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) Holdings, the Borrower or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) Holdings, the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall be commenced by the PBGC to have a trustee appointed,
or a trustee shall be so appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, or (v) the Borrower or any
Commonly Controlled Entity shall incur any liability in connection with
a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan; and in each case in clauses (i) through (v) above,
such event or condition together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving for
Holdings, the Borrower and its Subsidiaries taken as a whole a liability
(to the extent not paid or fully covered by insurance as to which the
relevant insurance company has acknowledged in writing coverage above
applicable deductibles) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) (i) any of the Security Documents shall cease, for any
reason, to be in full force and effect (unless released by the
Administrative Agent at the direction of the requisite Lenders or as
otherwise permitted under this Agreement or the other Credit Documents),
or any Credit Party or any Affiliate of any Credit Party shall so
assert, or (ii) any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to
be created thereby (unless released by the Administrative Agent at the
direction of the requisite Lenders or as otherwise permitted under this
Agreement or the other Credit Documents); or
(j) the guarantee of any Credit Party contained in Section 2 of
the Non-Shared Guarantee and Collateral Agreement shall cease, for any
reason, to be in full force and effect or any Credit Party or any
Affiliate of any Credit Party shall deny or disaffirm its obligation in
respect of such guarantee (unless released by the Administrative Agent
at the direction of the requisite Lenders or as otherwise permitted
under this Agreement or the other Credit Documents); or
(k) a Change in Control shall occur; or
(l) the Senior Subordinated Notes or the guarantees thereof shall
cease, for any reason, to be subordinated to the Obligations or the
obligations of Holdings and the Subsidiary Guarantors under the Non-
Shared Guarantee and Collateral Agreement, as the case may be, as
provided in the Senior Subordinated Notes Indenture, respectively, or
any Credit Party, any Affiliate of any Credit Party, the trustee in
respect of the Senior Subordinated Notes or the holders of at least 25%
in aggregate principal amount of the Senior Subordinated Notes shall so
assert, as the case may be;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Credit Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries
of the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions
may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Credit Documents (including, without limitation,
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit
with respect to which presentment for honor shall not have occurred at the
time of an acceleration pursuant to this paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied
to repay other obligations of the Borrower hereunder and under the other
Credit Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Credit
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Credit Documents, and each such Lender irrevocably authorizes each
Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise
such powers and perform such duties as are expressly delegated to the such
Agent by the terms of this Agreement and the other Credit Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, no Agent shall have
any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against
any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. No Agent shall be
responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except to the extent that any of the foregoing are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from its or such Person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any Credit
Party or any officer thereof contained in this Agreement or any other Credit
Document or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agents under or in connection with,
this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure of any Credit Party a party
thereto to perform its obligations hereunder or thereunder. The Agents shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of any Credit Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to any of the Credit Parties),
independent accountants and other experts selected by the Administrative
Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. Each
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other
Credit Documents in accordance with a request of the Required Lenders (or, if
so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender, Holdings or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereinafter taken, including any review of the affairs of a Credit Party or
any affiliate of a Credit Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Credit Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties and
their affiliates. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
no Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any
Credit Party or any affiliate of a Credit Party which may come into the
possession of such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by Holdings or the
Borrower and without limiting the obligation of Holdings or the Borrower to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or,
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with such Aggregate Exposure Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such
Agent's gross negligence or willful misconduct. The agreements in this
Section 9.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Credit Party as though such Agent was not an Agent.
With respect to its Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, each Agent shall have the
same rights and powers under this Agreement and the other Credit Documents as
any Lender and may exercise the same as though it were not an Agent, and the
terms "Lender" and "Lenders" shall include each Agent in its individual
capacity.
9.9 Successor Agents. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or
Section 8(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided
for above. The Syndication Agent may, at any time, by notice to the Lenders
and the Administrative Agent, resign as Syndication Agent hereunder, whereupon
the duties, rights, obligations and responsibilities hereunder shall (subject
to the consent of the Administrative Agent) be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the
Syndication Agent, the Administrative Agent or any Lender. If no successor
agent has accepted appointment as Syndication Agent by the date that is 10
days following a retiring Syndication Agent's notice of resignation, the
retiring Syndication Agent's resignation shall nevertheless thereupon be
effective, and the Lenders shall assume and perform all of the duties of the
Syndication Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring Agent's
resignation as Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Credit Documents.
9.10 Authorization to Release Liens. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower or any of its Subsidiaries that is the
subject of a Disposition which is permitted by this Agreement or which has
been consented to in accordance with Section 10.1.
9.11 The Arranger, etc.. Each of the Arranger and the
Documentation Agent and Co-Documentation Agent identified on the cover page of
this Agreement, in their respective capacities as such, shall have no duties
or responsibilities, and shall incur no liability, under this Agreement and
the other Credit Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other
Credit Document, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this Section 10.1.
The Required Lenders and each Credit Party party to the relevant Credit
Document may, or (with the written consent of the Required Lenders) the Agents
and each Credit Party party to the relevant Credit Document may, from time to
time, (a) enter into written amendments, supplements or modifications hereto
and to the other Credit Documents (including amendments and restatements
hereof or thereof) for the purpose of adding any provisions to this Agreement
or the other Credit Documents or changing in any manner the rights of the
Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on such
terms and conditions as may be specified in the instrument of waiver, any of
the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
forgive any principal amount or extend the final scheduled date of maturity of
any Loan or Reimbursement Obligation, extend the expiration of any Letter of
Credit beyond the Revolving Credit Termination Date, extend the scheduled date
of any amortization payment in respect of any Term Loan, reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof, in each case without the consent of each Lender affected
thereby, or increase the amount or extend the expiration date of any
Commitment of any Lender, without the consent of such Lender; (ii) amend,
modify or waive any provision of this Section or reduce any percentage
specified in the definition of Required Lenders or Majority Facility Lenders,
or consent to the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement and the other Credit Documents, in each
case without the consent of all Lenders; (iii) release all or substantially
all of the Collateral or release all or substantially all of the Guarantors
from their guarantee obligations under the Credit Documents (except as
otherwise expressly permitted under the Credit Documents), in each case
without the consent of all Lenders; (iv) reduce the percentage specified in
the definition of Majority Facility Lenders with respect to any Facility
without the written consent of all Lenders under such Facility; (v) amend,
modify or waive any provision of Section 9 without the consent of any Agent
directly affected thereby; (vi) amend, modify or waive any provision of
Section 2.6 or 2.7 without the written consent of the Swing Line Lender; (vii)
amend, modify or waive any provision of Section 2.18 without the consent of
each Lender directly affected thereby; or (viii) amend, modify or waive any
provision of Section 3 without the consent of the Issuing Lender. In addition
to the foregoing, no modification or waiver of any provision of Section 2.8,
2.11, 2.12 or 2.18 that could reasonably be expected to adversely affect the
Lenders under a particular Facility in a manner that does not affect all
Facilities equally shall be effective against the Lenders under such Facility
unless the Majority Facility Lenders in respect of such Facility shall have
concurred with such waiver or modification (it being understood that any
modification or waiver of any provision which only postpones or reduces any
interim scheduled payment, voluntary or mandatory prepayment or Commitment
reduction from those set forth in Section 2.12 with respect to less than all
Facilities shall be deemed to not adversely affect the Lenders under each
other Facility in a manner that does not affect all Facilities equally and,
therefore, shall not require the concurrence of the Majority Facility Lenders
in respect of each other such Facility).
Notwithstanding anything to the contrary contained herein or in
any Security Document, upon request of the Borrower, the Administrative Agent
shall (without notice to or vote or consent of any Lender) take action having
the effect of releasing any Collateral and/or guarantee obligations provided
for in such Security Document to the extent necessary to permit consummation,
by the relevant Person in accordance with the terms of this Agreement and the
other Credit Documents, of any transaction not prohibited hereunder.
Any waiver and any amendment, supplement or modification of a
type referred to above shall apply equally to each of the Lenders and shall be
binding upon the Credit Parties, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Credit Parties,
the Lenders and the Administrative Agent shall be restored to their former
position and rights hereunder and under the other Credit Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written
instrument signed by the parties required to sign pursuant to the foregoing
provisions of this Section; provided that delivery of an executed signature
page of any such instrument by facsimile transmission shall be effective as
delivery of a manually executed counterpart thereof.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed (a) in the case of Holdings, the Borrower and
the Agents, as follows and (b) in the case of the Lenders, as set forth on
Schedule I to the Lender Addendum to which such Lender is a party or, in the
case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance or (c) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
Holdings: Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116-1602
Attention: Chief Financial Officer
Telecopy: (334) 271-8140
Telephone: (334) 244-4000
with a copy to:
Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116-1602
Attention: General Counsel
Telecopy: (334) 271-8130
Telephone: (334) 244-4000
The Borrower: Blount, Inc.
4520 Executive Park Drive
Montgomery, AL 36116-1602
Attention: Chief Financial Officer
Telecopy: (334) 271-8140
Telephone: (334) 244-4000
with a copy to:
Blount, Inc.
4520 Executive Park Drive
Montgomery, AL 36116-1602
Attention: General Counsel
Telecopy: (334) 271-8130
Telephone: (334) 244-4000
The Syndication Agent: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Michael O'Brien
Telecopy: (212) 526-0437
Telephone: (212) 526-7691
The Administrative Agent: Bank of America, N.A.
101 North Tryon Street, 15th Floor
Charlotte, NC 28255
Attention: Angela Berry
Telecopy: (704) 409-0009
Telephone: (704) 386-8958
with a copy to each of:
Bank of America, N.A.
600 Peachtree St. N.E., 19th Floor
Atlanta, GA 30308
Attention: David Jackson
Telecopy: (404) 607-4619
Telephone: (404) 607-6323
Bank of America, N.A.
One Perimeter Park South, Suite 100N
Birmingham, AL 35243
Attention: Alan Schweer
Telecopy: (205) 970-6176
Telephone: (205) 970-6154
provided that any notice, request or demand to or upon either Agent or any
Lender shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the either Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Credit Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Facilities (other than fees
payable to syndicate members) and the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements and other charges of counsel to the Syndication Agent
and the Administrative Agent, (b) to pay or reimburse each Lender and the
Agents for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other
Credit Documents and any such other documents, including, without limitation,
the fees and disbursements of counsel to each Lender and of counsel to the
Agents, (c) to pay, indemnify, and hold each Lender and the Agents harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Credit Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and the Agents and their respective
officers, directors, trustees, employees, affiliates, agents, controlling
persons, attorneys and advisers (each, an "Indemnitee") harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other
Credit Documents and any such other documents, including, without limitation,
any of the foregoing relating to the use of proceeds of the Loans or the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of Holdings, the Borrower any of its Subsidiaries
or any of the Properties and the fees and disbursements and other charges of
legal counsel in connection with claims, actions or proceedings by any
indemnitee against the Borrower hereunder (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"); provided that the Borrower
shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries so to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. The agreements in this Section shall
survive repayment of the Loans and all other amounts payable hereunder. It is
understood and agreed that, to the extent not precluded by a conflict of
interest and not resulting in a material disadvantage or risk, each Indemnitee
shall endeavor to work cooperatively with the Borrower with a view toward
minimizing the legal and other expenses associated with any such defense and
any such potential settlement or judgment (including, to the extent reasonably
practicable and not disadvantageous to any Indemnitee in its sole opinion, the
use of a single counsel on behalf of the affected Indemnitees).
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Holdings,
the Borrower, the Lenders, the Agents, all future holders of the Loans and
their respective successors and assigns, except that neither Holdings nor the
Borrower may assign or transfer any of its respective rights or obligations
under this Agreement without the prior written consent of the Agents and each
Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or
any other interest of such Lender hereunder and under the other Credit
Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall
remain the holder of any such Loan for all purposes under this Agreement and
the other Credit Documents, and the Borrower and the Agents shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Credit Documents.
In no event shall any Participant under any such participation have any right
to approve any amendment or waiver of any provision of any Credit Document, or
any consent to any departure by any Credit Party therefrom, except for those
matters specified in clauses (i) of the proviso in Section 10.1. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement; provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as provided in
Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of Sections
2.19, 2.20 and 2.21 with respect to its participation in the Commitments and
the Loans outstanding from time to time as if it was a Lender; provided that,
in the case of Section 2.20, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
law and upon written notice to the Administrative Agent and the Syndication
Agent, at any time and from time to time assign to any Lender or any Affiliate
thereof or, with the consent of the Borrower and the Agents and, in the case
of any assignment of Revolving Credit Commitments and Revolving Credit Loans
only, the written consent of the Agents, the Issuing Lender and the Swing Line
Lender (which, in each case, shall not be unreasonably withheld or delayed and
shall not be required in connection with an assignment involving LCPI or any
of its Affiliates or if the Assignee is already a Lender or an Affiliate of a
Lender) to an additional bank, financial institution or other entity (an
"Assignee") all or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
E, executed by such Assignee and such Assignor (and, where the consent of the
Borrower, the Agents, the Issuing Lender or the Swing Line Lender is required
pursuant to the foregoing provisions, by the Borrower and such other Persons)
and delivered to the Administrative Agent for its acceptance and recording in
the Register; provided that no such assignment to an Assignee (other than any
Lender or any Affiliate thereof, including, without limitation, in the case of
any Lender that is an investment fund which is regularly engaged in making,
purchasing or investing in loans or securities, any other such fund which is
under common (or affiliated) management with such Lender) shall (other than in
the case of an assignment of all of a Lender's rights under this Agreement) be
in an aggregate principal amount of less than $2,000,000 (or such lesser
amount as may be agreed to by the Borrower and the Agents). Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto); provided that the Assignor shall continue to be entitled to the
benefits of the indemnity and expense reimbursement provisions hereof for the
period prior to such assignment. Notwithstanding any provision of this
Section, the consent of the Borrower shall not be required for any assignment
which occurs at any time when any Event of Default shall have occurred and be
continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the Loans
and any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the Borrower marked
"cancelled". The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an Assignor and an Assignee (and, in any case where the consent of any other
Person is required by Section 10.6(c), by each such other Person) together
with payment to the Administrative Agent of a registration and processing fee
of $3,500 (except that (i) no such registration and processing fee shall be
payable in connection with an assignment (y) by or to LCPI or any of its
Affiliates or (z) by a Lender to any of its Affiliates (including, without
limitation in the case of any Lender that is an investment fund which is
regularly engaged in making, purchasing or investing in loans or securities,
any other such fund which is under common (or affiliated) management with such
Lender), (ii) if the Assignee is already a Lender the registration and
processing fee shall be $1,000 and (iii) only a single $3,500 registration and
processing fee shall be payable in connection with an assignment by a Lender
to an Assignee (that is not already a Lender) and one or more of its
Affiliates (including, without limitation in the case of any such Assignee
that is an investment fund which is regularly engaged in making, purchasing or
investing in loans or securities, any other such fund which is under common
(or affiliated) management with such Assignee)), the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower. On or prior to such effective date, the
Borrower, at its own expense, upon request, shall execute and deliver to the
Administrative Agent (in exchange for the Revolving Credit Note and/or
applicable Term Notes, as the case may be, of the assigning Lender) a new
Revolving Credit Note and/or applicable Term Notes, as the case may be, to the
order of such Assignee in an amount equal to the Revolving Credit Commitment
and/or applicable Term Loans, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loans, as the case may be, upon
request, a new Revolving Credit Note and/or Term Notes, as the case may be, to
the order of the Assignor in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Person including, without limitation, any Federal Reserve Bank in accordance
with applicable law.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to
the Lenders under a particular Facility, if any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of the Obligations owing
to it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral
ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
Holdings or the Borrower, any such notice being expressly waived by Holdings
and the Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by Holdings or the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of Holdings or the Borrower, as the case may be. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender; provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. Delivery of an executed signature page of this Agreement
by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by
all the parties shall be lodged with the Borrower and the Administrative
Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Borrower, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in the other Credit Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and
the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or the Borrower, as the case may be at its address
set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgements. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Holdings or the Borrower arising
out of or in connection with this Agreement or any of the other Credit
Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and Holdings and the Borrower, on the other hand,
in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings, the Borrower and the
Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders agrees
to keep confidential all non-public information provided to it by any Credit
Party pursuant to this Agreement that is designated by such Credit Party as
confidential (including any such information already in the possession of such
Lender or provided to such Lender by a third party not in violation of this
Agreement which, in either case, is not, to the knowledge of such Lender,
subject to a confidentiality agreement); provided that nothing herein shall
prevent any Agent or any Lender from disclosing any such information (a) to
any Agent or any other Lender or any of its Affiliates, (b) to any Participant
or Assignee (each, a "Transferee") or prospective Transferee or to any direct
or indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors which receives such information and
agrees to comply with the provisions of this Section, (c) any of its
employees, directors, agents, attorneys, accountants and other professional
advisors, (d) upon the request or demand of any Governmental Authority having
jurisdiction over it, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with
any litigation or similar proceeding, (g) which has been publicly disclosed
other than in breach of this Section, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender or (i) in connection with the exercise of any remedy hereunder or under
any other Credit Document; provided that in the case of the foregoing clauses
(d), (e) and (f) the relevant Agent or Lender shall (except with respect to
routine regulatory disclosure) promptly notify the Borrower of any such
request or demand for such information unless prohibited from doing so by
applicable law.
10.15 Accounting Changes. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered
by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to
be calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by
the promulgation of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC.
10.16 Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent and
the Syndication Agent a Lender Addendum duly executed by such Lender, the
Borrower and each Agent.
10.17 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
BLOUNT INTERNATIONAL, INC.
By: _____________________________
Name: ________________________
Title: ________________________
BLOUNT, INC.
By: _____________________________
Name: ________________________
Title: ________________________
LEHMAN BROTHERS INC.,
as Arranger
By: _____________________________
Name: ________________________
Title: ________________________
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
By: _____________________________
Name: ________________________
Title: ________________________
BANK OF AMERICA, N.A.
as Administrative Agent
By: _____________________________
Name: ________________________
Title: ________________________
SCHEDULE I
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE
LOANS, TRANCHE A TERM LOANS AND COMMITMENT FEES
Consolidated Tranche A Term Tranche A Term Commitment
Leverage Ratio Loan and Revolving Loan and Revolving Fee Rate
Credit Facility Credit Facility
Applicable Margin Applicable Margin
for LIBOR Loans for Base Rate Loans
=>5.0 to 1 3.25% 2.25% 0.50%
< 5.0 => 4.5 to 1 3.00% 2.00% 0.50%
< 4.5 => 4.0 to 1 2.75% 1.75% 0.50%
< 4.0 => 3.5 to 1 2.25% 1.25% 0.375%
<3.5 to 1 1.75% .075% 0.375%
SCHEDULE 1.1
MORTGAGED PROPERTY
See Schedule 4.22
<PAGE>
SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
Hart - Scott - Rodino filings, consents or expirations with respect to the
Recapitalization.
<PAGE>
SCHEDULE 4.9
INTELLECTUAL PROPERTY
None.
<PAGE>
SCHEDULE 4.15
COMMITMENTS RELATING TO THE CAPITAL STOCK OF
HOLDINGS AND ANY OF ITS SUBSIDIARIES
Registration Rights and Stock Transfer Restriction Agreement dated as of
November 3, 1995, by and between Holdings and Winton M. Blount, Carolyn S.
Blount, Winton M. Blount III, Samuel R. Blount, Joseph W. Blount, Thomas A.
Blount, and Katherine Blount Miles, and The Blount Holding Company, L.P., a
Delaware limited partnership.
<PAGE>
SCHEDULE 4.15
Part A
CAPITALIZATION, SUBSIDIARIES AND INVESTMENTS
Shares of Percentage
Name Capital Stock(1)(2)(3) Owned(1)(2)(3)
---- ---------------------- --------------
Lehman Brothers Merchant Banking
Partners(4). . . . . . . . . . 26,833,334 87.1%
John M. Panettiere . . . . . . . 390,231 1.3%
Harold E. Layman . . . . . . . . 153,912 <1.0%
James S. Osterman. . . . . . . . 42,624 <1.0%
Gerald W. Bersett. . . . . . . . 4,259 <1.0%
Donald B. Zorn . . . . . . . . . 55,951 <1.0%
Richard H. Irving, III . . . . . 54,645 <1.0%
D. Joseph McInnes. . . . . . . . -- 0.0%
Alan L. Magdovitz(4) . . . . . . 26,833,334 87.1%
Eliot M. Fried(4). . . . . . . . 26,833,334 87.1%
E. Daniel James(4) . . . . . . . 26,833,334 87.1%
Others . . . . . . . . . . . . . 3,265,044 10.6%
- ---------------
(1) Under their new employment agreements, the executives listed or
otherwise accounted for in the above table commit to invest specific
amounts for shares in Holdings after giving effect to the
recapitalization transactions, according to individual formulas based in
part upon the net tax proceeds resulting from the cancellation of their
respective existing stock options in Holdings. The above table applies
an assumed federal tax rate of 39.6%, 1.45% for medicare insurance and
various state tax rates, which may or may not prove to be the applicable
rates. The above computation also assumes that those executives who
hold any shares in the Borrower (other than those subject to stock
options) take actions equivalent to electing to receive the cash
consideration as to those shares. The above individual and aggregate
totals exclude ownership amounts of certain individuals pending
resolution thereof. While it is not expected that either the number of
shares or the total investment by management will vary materially from
the information set forth herein, final ownership percentages will be
established only at the consummation of the recapitalization
transactions.
(2) This table does not give effect to shares that may be acquired pursuant
to options and warrants.
(3) In connection with the recapitalization transactions, approximately 37
employees not named in the table above will collectively acquire
approximately 300,000 shares of capital stock, representing
approximately 1.0% ownership after giving effect to the recapitalization
transactions. In aggregate, management will contribute approximately
$15.0 million of cash, representing approximately 3.2% of ownership
after giving effect to the recapitalization transactions, through
purchase of equity at $15/share.
(4) Messrs. Magdovitz, Fried and James are affiliates of Lehman Brothers
Merchant Banking Partners and may be deemed to share beneficial
ownership of the shares of common stock shown as beneficially owned by
Lehman Brothers Merchant Banking Partners. Such individuals disclaim
beneficial ownership of such shares.
<PAGE>
SCHEDULE 4.15
Part B
CAPITALIZATION, SUBSIDIARIES AND INVESTMENTS
Percentage of
Jurisdiction Capital Stock
of owned by any Non-Operating
Subsidiary Incorporation Credit Party Subsidiary
Blount, Inc. Delaware 100%
BI Holdings Corp. Delaware 100%
Blount (Thailand) Ltd. Thailand 100% x
Benjamin F. Shaw Company Delaware 100% x
Blount Export Company,Inc. Barbados 100%
Svenska Blount AB Sweden 100%
Svenska Oregon AB Sweden 100%
BI, L.L.C. Delaware 100%
OOO Blount Russia 100%
Blount Canada Ltd. Canada 99.90%
Blount Europe, S.A. Belgium 100%
Blount U.K. Limited England 99.99%
Blount Holdings Ltd. Canada 99.99%
Ontario,
Oregon Distribution Ltd. Canada 100%
Blount Industrial LTDA Brazil 99.99%
Blount GmbH Germany 100%
Blount Development Corp. Delaware 100% x
Blount Japan Inc. Japan 100%
Omark Properties, Inc. Oregon 100%
4520 Corp., Inc. Delaware 100% x
Gear Products, Inc. Oklahoma 100%
Dixon Industries, Inc. Kansas 100%
Frederick Manufacturing
Corporation Delaware 100%
Federal Cartridge Company Minnesota 100%
Simmons Outdoor Corporation Delaware 100%
Mocenplaza Development
Corp. Delaware 100% x
CTR Manufacturing North Carolina 100%
<PAGE>
SCHEDULE 4.15
Part C
CAPITALIZATION, SUBSIDIARIES AND INVESTMENTS
Miscellaneous investments not exceeding $5,000,000.
100 shares of the common stock of Sturm, Ruger & Co.
Two notes from Lockheed Martin Corporation to the Borrower in the aggregate
amount of $118,888.
Until November 1, 1999, cash collateral accounts in an amount of up to
$22,000,000 relating to cash collateralization of letters of credit relating
to the industrial development revenue bonds described in Schedule 7.2(d).
<PAGE>
SCHEDULE 4.17
ENVIRONMENTAL MATTERS
Section 4.17(a)
Oregon Cutting Systems Division - Milwaukee, Oregon
OCSD received a Notice of Violation, Compliance Order and Assessment of Civil
Penalty relating to the June 29, 1998 hazardous waste management compliance
inspection conducted by the Oregon Department of Environmental Quality. A
cash settlement has been negotiated in the amount of $9,128 and is completed.
Sporting Equipment Division - Lewiston, Idaho
SED violated discharge standards at Lewiston Wastewater treatment plant in
1987. City of Lewiston assessed penalty of $184,000 pursuant to a compliance
order.
Forestry and Industrial Equipment Division - Owatonna, Minnesota
The wastewater from the plant was out of compliance in 1995. It was too high
in heavy metals. The matter was resolved with the installation of a closed
loop system for wastewater processing.
Forestry and Industrial Equipment Division - Prentice, Wisconsin
The wastewater from the plant was out of compliance in 1998; it was too high
in oils and grease. The matter was resolved with the installation of a closed
loop system for wastewater processing.
Forestry and Industrial Equipment Division - Spencer, Wisconsin
The wastewater from the plant was out of compliance in 1998; it was too high
in oils and grease. The matter was resolved with the installation of a closed
loop system for wastewater processing.
Section 4.17(b)
Blount Canada Ltd. - Guelph, Ontario Facility
Degreasing operations within the facility have caused localized contamination
in the soil overburden and shallow groundwater by volatile organic compounds.
No enforcement actions by the Ministry of the Environment or other third party
claims are pending against the Borrower.
An underground storage tank containing oily waste, removed in 1995, was found
to have caused localized volatile organic compound contamination. No
enforcement actions by the Ministry of the Environment or other third party
claims are pending against the Borrower.
Gasoline related compounds have impacted the site from a previous and/or
existing off-site gas station unrelated to the Blount operations.
The dumping of chromium sludge onto property was voluntarily reported. This
occurred about 70 years ago. The Borrower is investigating this release.
Federal Cartridge Company* - Anoka, Minnesota
At Master Site #11, there was a release of cyanide to soil beneath the
concrete floor of the building.
Oregon Cutting Systems Division
OCSD is currently working with the Oregon Department of Environmental Quality
Voluntary Cleanup Program to resolve a solvent release. Remediation of the
release is proceeding, with expected completion in summer of 2000. There are
minimal on-going costs for monitoring and remediating the release.
Forestry Industrial Equipment Division - Prentice, Wisconsin
Two underground storage tanks were removed in 1989. There were releases of
petroleum products and impacts to groundwater. Blount reported the release to
the Wisconsin Department of Natural Resources and is voluntarily remediating
the release.
In 1991 there was a release of trichloroethylene. The release was reported to
the Wisconsin Department of Natural Resources and the release is being
monitored by the Borrower and allowed to naturally attenuate.
Section 4.17(c)
HBC Vogue Rattan** - Lexington, Kentucky
Lawsuit for contribution involving cleanup of former Vogue Rattan leased
facility in Lexington, Kentucky with a total cleanup cost for all parties
expected to be less than $200,000. The lawsuit was initiated by subsequent
owners of the facility. A separate claim by the Commonwealth of Kentucky was
settled for $5,000.
Calstrip Steel Corp.** - Glen Avon, California
Austin v. Stringfellow, et al. This was an action against Calstrip Steel
Corp. and other contributors of waste to Stringfellow Quarry by certain
residents of the adjacent town, Glen Avon; it was settled in March 1994 for a
payment of $124,900 by Blount on behalf of Calstrip. A de minimis claim by
U.S. EPA was settled in August 1994, for $117,574. A second lawsuit was
initiated by residents (past and present) of the town of Glen Avon, which
residents did not participate in the first lawsuit.
Gear - Sand Springs, Oklahoma
ARCO consented to clean up Sand Springs Petrochemical Complex and then sued
potential responsible parties, including Gear, for contribution. Gear had a
previous de minimis settlement agreement. Gear tendered the lawsuit to Simon
U.S., which accepted tender based upon 1991 stock purchase agreement.
Oregon Cutting Systems Division
OCSD operated a plant in Bayamon, Puerto Rico. Waste was allegedly discharged
in a creek, which emptied into the Bayamon River. U.S. EPA filed suit in
February 1985, alleging Clean Water Act violations. The matter was settled
with payment of $576,100 in penalties.
Oregon Cutting Systems Division
OCSD sold a facility in Milwaukee, Oregon to ITT in 1979. ITT sold the
facility to Phillips Drill Company in 1985. ITT stock was sold to ITW.
Trichloroethane was discovered on the site. ITW initiated a lawsuit, which
included ITT. ITT joined Blount. Blount settled in January 1996 and paid
$90,000, even though Blount did not use TCE during its ownership.
Section 4.17(d)
Oregon Cutting Systems Division
Pasco Sanitary Landfill (See contingency section of financial footnote 7 to
Blount International, Inc. Form 10-K for period ending 12/31/98).
Western Processing Superfund Site - Kent, Washington. In 1987 this matter was
settled under a CERCLA Consent Decree. The site is now in Phase II of
subsurface remediation. There are annual allotments of response costs. To
date, the Borrower has paid $19,323.
Sporting Equipment Division - Onalaska, Wisconsin
Onalaska Municipal Landfill (See contingency section of financial footnote 7
to Blount International, Inc. Form 10-K for period ending 12/31/98).
HBC - Lindsay Wire**
New Lyme Landfill, Ashtabula County, Ohio. EPA and group of Defendants
settled. The defense group sent a letter to Blount offering to allow Blount
to settle for $5,000. The Borrower is investigating its responsibility at
this site.
Section 4.17(e)
Sporting Equipment Division - Lewiston, Idaho
Gould Superfund, Washington. Between 1963 - 1981, CCI and Speer deposited
small amounts of lead scraps at the Gould site. Blount paid $255,834 to
settle with EPA.
Young American Homes
Jack Creek Site, Pennsylvania. EPA and Pennsylvania Department of Interior
settlement offers were accepted in September 1994, for $5,513 and $198,
respectively.
KSM**
Malvern Superfund Site, Chester County, Pennsylvania. KSM sent six barrels of
trichloroethane to this site in 1979. KSM accepted an EPA de minimis buyout
for $2,801 in December 1998.
Section 4.17(f)
Acquisitions since January 1, 1992
CTR Manufacturing, Inc. 4/28/94
Simmons Outdoor Corporation 12/18/95
Frederick Manufacturing Corporation 1/3/97
Orbex, Inc. 1/3/97
Federal Cartridge Company* 10/31/97
Dispositions since January 1, 1992
Construction Division of Blount, Inc. 3/1/94
Pozzo Construction Co. 4/28/95
Injection Molding Metal Products Operations 5/2/95
BI Industries, Inc. ("BI") Oniskany/Utica, NY (Waterbury Felt Division) and
Florence, Mississippi (Lindsay Division). On February 12, 1992, BI sold the
assets of its Waterbury Felt Division. On February 1, 1993, BI sold the
assets of its Lindsay Wire Division. BI retained certain environmental
liabilities and obligations of BI existing as of the dates of such sales. BI
was a subsidiary of the Blount International, Inc. (then known as HBC,
Incorporated). On June 15, 1993, BI was merged into HBC, Inc. (now known as
Blount International, Inc.).
* There are excluded from the schedule certain on-site and off-site
matters involving Federal Cartridge Company, that are managed and
financed by Pentair, Inc., the prior parent of Federal, as provided in
the Blount and Pentair stock purchase agreement.
** Calstrip, Lindsay Wire, Vogue Rattan and KSM are no longer owned,
directly or indirectly, by Blount.
<PAGE>
SCHEDULE 4.19(A)
UCC FILING JURISDICTIONS
SHARED COLLATERAL FORMS UCC-1
DEBTOR STATE/FILING OFFICE
------ -------------------
1.(a) Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
2.(a) Blount, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) California SOS
(c) Idaho SOS
(d) Minnesota SOS
(e) Nebraska S0S
(f) North Carolina SOS
(g) Oregon SOS
(h) Wisconsin SOS
(i) Wisconsin Price County
(Prentice)
(j) Indiana Madison County
(Indianapolis)
(Offsite goods)
3.(a) Federal Cartridge Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Indiana S0S
(c) Indiana Wayne County
(Richmond)
(d) Minnesota S0S
4.(a) Dixon Industries, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Kansas S0S
(c) Kansas Montgomery County
(Coffeyville)
5.(a) Frederick Manufacturing
Corporation
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Missouri S0S
(c) Missouri Jackson County
(Kansas City)
6.(a) CTR Manufacturing Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) North Carolina SOS
(c) North Carolina Wake County
7.(a) Gear Products, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oklahoma Oklahoma County
(Central Filing)
8.(a) BI Holdings Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
9.(a) Benjamin F. Shaw Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
10.(a) BI, L.L.C.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oregon SOS
11.(a) Blount Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
12.(a) Omark Properties, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oregon SOS
13.(a) 4520 Corp., Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
14.(a) Mocenplaza Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
<PAGE>
NON-SHARED COLLATERAL FORMS UCC-1
DEBTOR STATE/FILING OFFICE
1.(a) Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
2.(a) Blount, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) California SOS
(c) Idaho SOS
(d) Minnesota SOS
(e) Nebraska S0S
(f) North Carolina SOS
(g) Oregon SOS
(h) Wisconsin SOS
(i) Wisconsin Price County
(Prentice)
(j) Missouri [ ] County
(Chesterfield)
3.(a) Federal Cartridge Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Indiana S0S
(c) Indiana Wayne County
(Richmond)
(d) Minnesota S0S
(e) Indiana Madison County
(Indianapolis)
(Offsite goods)
(f) New York SOS
(Offsite goods)
(g) New York Eirie County
(Offsite goods)
(h) Minnesota Anoka County
(St. Francis)
4.(a) Dixon Industries, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Kansas S0S
(c) Kansas Montgomery County
(Coffeyville)
(d) Alabama SOS
(e) Minnesota SOS
(f) Indiana SOS
(g) Indiana [ ] County
(Indianapolis)
(h) Utah [ ] SOS
(Salt Lake City)
5.(a) Frederick Manufacturing
Corporation
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Missouri S0S
(c) Missouri Jackson County
(Kansas City)
6.(a) CTR Manufacturing Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) North Carolina SOS
(c) North Carolina Wake County
7.(a) Gear Products, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oklahoma Oklahoma County
(Central Filing)
8.(a) Simmons Outdoor Corporation
4520 Executive Park Drive
Montgomery, AL 36116 Georgia Thomas County
9.(a) BI Holdings Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
10.(a) Benjamin F. Shaw Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
11.(a) BI, L.L.C.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oregon SOS
12.(a) Blount Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
13.(a) Omark Properties, Inc.
4909 S.E. International Way
Portland, OR 97222 Alabama SOS
(b) Oregon SOS
14.(a) 4520 Corp., Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
15.(a) Mocenplaza Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
<PAGE>
SCHEDULE 4.19(B)
MORTGAGE FILING JURISDICTIONS
See Schedule 4.22
<PAGE>
SCHEDULE 4.22
REAL PROPERTY
Owned Properties
----------------
LOCATION OWNER TO BE
MORTGAGED
AT CLOSING
DATE?
MONTGOMERY OFFICES
4520 Executive Park Drive
Montgomery, AL 36116
(Montgomery County) Blount, Inc. Yes
MONTGOMERY WAREHOUSE
2100 Blackshear Drive
Montgomery, AL 36108
(Montgomery County) Blount, Inc. Yes
605 Oro Dam Boulevard
Oroville, CA 95965
(Butte County) Blount, Inc. Yes
Lewiston - CCI
2299 Snake River Avenue
Lewiston, ID 83501
(Nez Perce County) Blount, Inc. Yes
Lewiston - Speer
1023 Snake River Avenue
Lewiston, ID 83501
(Nez Perce County) Blount, Inc. Yes
Lewiston - Southport
150 Southport Avenue
Lewiston, ID 83501
(Nez Perce County) Blount, Inc. Yes
Lewiston - Tammany
Tammany Road
Lewiston, ID 83501
(Nez Perce County) Blount, Inc. No
232 Industrial Parkway
Richmond, IN 4737 Federal Cartridge
(Wayne County) Company Yes
Airport Industrial Park
Coffeyville, KS 67337
(Montgomery County) Dixon Industries, Inc. Yes
900 Ehlen Drive
Anoka, MN 55303 Federal Cartridge
(Anoka County) Company Yes
3249 South Country Road 45
Owatonna, MN 55060
(Steele County) Blount, Inc. Yes
2840 East 12th Street Frederick
Kansas City, MO 64127 Manufacturing
(Jackson County) Corporation Yes
Grant & Nebraska Aves.
b/t 9th & 10th Streets
York, Nebraska
(York County) Blount, Inc. No
774 Zeb Road
Union Grove, NC 28689 CTR Manufacturing
(Iredell County) Inc. No
415 Mack Todd Road
Zebulon, NC 27597 Omark Properties,
(Wake County) Inc. Yes
1111 N.161st East Avenue
Tulsa, OK 74116
(Rogers County) Gear Products, Inc. Yes
4909 SE International Way Omark Properties, Inc.
Portland, OR 97222 (as to Tax Lots 100
(Clackamas County) and 300) and Blount,
Inc. (as to the
remainder) Yes
Route #2
N5549 County Trunk "Z"
Onalaska, WI 54650
(LaCrosse County) Blount, Inc. Yes
474 Birch Street
Prentice, WI 54556
(Price County) Blount, Inc. Yes
800 Monroe Street
Spencer, WI 54479
(Marathon County) Blount, Inc. No
LEASED PROPERTIES
LOCATION LESSEE LESSOR
1415 South 3200 West American Distribution
Salt Lake City, UT 84104 Dixon Industries, Inc. Centers, Inc.
2900 North Shadeland Avenue
Indianapolis, IN 46219 Dixon Industries, Inc. R&W Warehouse, Inc.
3703 Kennebec Drive
Eagan, MN 55122 Dixon Industries, Inc. FREIGHTMASTERS, Inc.
3200 2nd Avenue South
Birmingham, AL 35233 Dixon Industries, Inc. Shaw Warehouse Company
Montgomery Regional Airport
4445 Selma Highway The Montgomery Airport
Montgomery, AL 36108 Blount, Inc. Authority
Plantation Oak Industrial Park
Plantation Oak Drive Simmons Outdoor
Thomasville, GA Corporation Realty Four
900 Bob Ehlen Drive Federal Cartridge
Anoka, MN Company Hoffman Enclosures Inc.
The Wiltel Building
15450 South Outer Forty Road The Realty Associates
Chesterfield, MO 63017 Blount, Inc. Fund III, L.P.
1401 Bedford Frederick
North Kansas City, MO Manufacturing Corp. Barney A. Karbank
Hawthorne Industrial Park Blount, Inc.
10955 SE Jennifer (Oregon Cutting Hawthorne Investment
Clackamas, OR Systems Division) Company
LOCATION LESSEE LESSOR
Montgomery Offices
4520 Executive Park Drive
(Building B) Lockheed Martin
Montgomery, AL 36116 Corporation Blount, Inc.
Montgomery Offices
4520 Executive Park Drive
(Building B) Community
Montgomery, AL 36116 Communications, Inc. Blount, Inc.
Montgomery Offices
2511 Fairlane Drive
(Building C) Lockheed Martin
Montgomery, AL 36116 Corporation Blount, Inc.
Montgomery Offices
2511 Fairlane Drive
(Building C) Montgomery Home
Montgomery, AL 36116 Care, Inc. Blount, Inc.
Montgomery Offices
2511 Fairlane Drive
(Building C)
Montgomery, AL 36116 Thornton Farish, Inc. Blount, Inc.
<PAGE>
SCHEDULE 7.2(D)
EXISTING INDEBTEDNESS
Instrument Due Date Outstanding Rate Action
- ---------- -------- ----------- ---- ------
June 30,
1999
in '000's
-----------
$150.0m Senior Notes June 15, 2005 $148,665 7% Continue as is.
$150.0m Revolving Optional
Credit Agreement April 1, 2002 0 Termination on
Closing Date.
Industrial
Development
Revenue Bond: Optional
Village of Prentice, Redemption by
Series 1992 July 1, 2002 1,350 Var. Rate November 1, 1999.
Industrial
Development
Revenue Bond: Optional
City of Bluffton, Redemption by
Series 1988 June 1, 2013 2,200 Var. Rate November 1, 1999.
Industrial
Development
Revenue Bond: September 1, 2004 4,200 Optional
Village of Prentice, Restricted Cash 1,156 Redemption by
Series 1994 Net 3,044 Var. Rate November 1, 1999.
Industrial
Development
Revenue Bond:
County of Steele, December 1, 2004 3,200 Optional
Minnesota, Series Restricted Cash 2,111 Redemption by
1994 Net 1,389 Var. Rate November 1, 1999.
Industrial
Development
Revenue Bond: Optional
City of Coffeyville, Redemption by
Kansas (Dixon) November 1, 2004 1,800 Var. Rate November 1, 1999.
Donald Wintz Note October 31, 2002 438 Optional
Redemption by
November 1, 1999.
Blount Industrial
LTDA (Brazil) -
Export Advances 322 Continue as is.
Blount Canada - GE 5.86%
Capital Leases October 1, 1999 44 eff. rate Continue as is.
Blount Canada - 0%
Tuckahoe Leasing March 1, 2000 9 eff. rate Continue as is.
Federal - USL 6.0%
Corp Lease February 1, 2000 39 eff. rate Continue as is.
Blount Japan - 7.626%
NEC Lease March 20, 2003 186 eff. rate Continue as is.
TOTAL, as of June 30, 1999 $162,753
========
<PAGE>
<TABLE>
<CAPTION>
Letters of Credit
As of 8/18/99
Division/ Guaranty Issue Expiration
Company Number Issuing Bank In Favor of L/C Type Rate Amount Date Date
- ------------ ---------- -------------- ------------- ------------- ------ ------------- --------- ----------
<S> <S> <S> <S> <S> <S> <S> <S> <S>
Blount, Inc.
Blount, Inc. S-865606 Morgan Bank One, Bluffton, IDB 0.550% 2,282,876.71 30-Jun-92 30-Jun-00
Guaranty Trust Indianapolis
Blount, Inc. SA89488094 NationsBank* Aetna Insurance 0.475% 927,202.00 29-Jul-94 29-Jul-00
Casualty &
Surety
Blount, Inc. C7108641 Bank of
America* Aetna Insurance 0.475% 4,618,770.00 05-Sep-89 01-Jul-00
Casualty &
Surety
Blount Int'l,
Inc. C7305122 Bank of Employers Insurance 0.475% 1,000,000.00 01-Jul-96 01-Jul-00
America* Insurance
of Wassau
Blount, Inc. SA84637094 NationsBank* Norwest Bank, Prentice 94 0.475% 4,248,328.77 20-Oct-94 20-Oct-99
Minnesota IDB
Blount, Inc. SA84660094 NationsBank* Norwest Bank, Steele Cly 0.475% 3,540,273.97 08-Dec-94 08-Dec-99
Minnesota IDB
Total Blount,
Inc. 16,617,451.45
Dixon Industries, Inc.
Dixon Norwest Bank, Coffeyville
Industries SA84657094 NationsBank* Minnesota IDB 0.475% 1,820,712.33 23-Nov-94 22-Nov-99
Total Dixon 1,820,712.33
Forestry
Industrial
Equipment
Division
Blount, Inc. S-865539 Morgan Norwest Bank, Prentice 92 0.550% 1,050,115.07 15-Jun-92 15-Jul-00
Guaranty Trust Minnesota IDB
Blount, Inc. C7358410 Bank of Ambassador 0.475% 35,693.90 01-Jul-98 30-Apr-00
America* Corporation Standby
Total
Forestry
Industrial
Equipment
Division 1,085,808.97
Oregon Cutting Systems
Blount, Inc. 5103690 NationsBank, V.F. Electric Import 0.25% 53,623.20 02-Aug-99 15-Dec-99
Charlotte* Manufacturing
Co.
Blount, Inc. 3056143 NationsBank, V.F. Electric Import 0.25% 53,605.20 15-Jun-99 15-Oct-99
Charlotte* Manufacturing
Co.
Total Oregon
Cutting Systems 107,228.40
Orbex, Inc.
Orbex, Inc. S040502 NationsBank Donald E. Standby 0.475% 437,500.00 30-Sep-94 01-Oct-99
(now merged Corp* Wintz
into Frederick
Manufacturing
Corporation)
Total Orbex Inc. 437,500.00
Simmons Outdoor Corp.
Simmons 3052301 NationsBank, Shinhan Import 0.25% 143,160.00 27-Apr-99 30-Jul-99
Charlotte* Industrial
Simmons 3052303 NationsBank, Powerlink Import 0.25% 3,326.96 27-Apr-99 30-Jul-99
Charlotte*
Simmons 3054751 NationsBank, Sun Long Import 0.25% 170,606.00 27-May-99 30-Sep-99
Charlotte*
Simmons 3056124 NationsBank, Powerlink Import 0.25% 1,694,310.22 15-Jun-99 30-Sep-99
Charlotte*
Simmons 3056125 NationsBank, Shinhan Import 0.25% 44,751.04 15-Jun-99 30-Sep-99
Charlotte* Industrial
Simmons 5068257 Bank of Powerlink Import 0.25% 221,131.00 13-Aug-99 30-Nov-99
America, N.A.*
Simmons 5068772 Bank of Powerlink Import 0.25% 3,494,450.64 13-Aug-99 30-Nov-99
America, N.A.*
Simmons 5068773 Bank of Shinhan Import 0.25% 191,890.28 16-Aug-99 30-Nov-99
America, N.A.* Industrial
Simmons 5102440 NationsBank, Shinhan Import 0.25% 52,701.00 14-Jul-99 15-Sep-99
Charlotte* Industrial
Total Simmons
Outdoor Corp 6,016,327.14
Sporting Equipment Division
Blount, Inc. S277608 ABN AMRO Government Performance $215 32,641.00 28-Dec-98 31-Mar-00
Bank N.V. of Hong Bond
Kong
Total Sporting
Equipment Division 32,641.00
Fredrick Manufacturing Corp
Fredrick 5103517 NationsBank, Rong Shin Import 0.25% 73,600.00 29-Jul-99 21-Oct-99
Charlotte* Industrial
Co. Ltd.
Total Frederick
Manufacturing Corp 73,600.00
Federal Cartridge Company
None at this time
Total For All
Letters of Credit 26,191,269.29
</TABLE>
*Deemed to be Letters of Credit issued by the Issuing Lender under
this Agreement.
<PAGE>
SCHEDULE 7.3(F)
EXISTING LIENS
See Annex I to Schedule 7.3(f)
EXHIBIT A-1
[FORM OF NON-SHARED GUARANTEE AND COLLATERAL AGREEMENT]
NON-SHARED GUARANTEE AND COLLATERAL AGREEMENT
made by
BLOUNT INTERNATIONAL, INC.
BLOUNT, INC.
and certain of its Subsidiaries
in favor of
BANK OF AMERICA, N.A.
as Administrative Agent
Dated as of August 19, 1999
TABLE OF CONTENTS Page
SECTION 1. DEFINED TERMS 2
1.1 Definitions 2
1.2 Other Definitional Provisions 4
SECTION 2. GUARANTEE 5
2.1 Guarantee 5
2.2 Right of Contribution 5
2.3 Postponement of Subrogation 6
2.4 Amendments, etc. with respect to the Borrower Obligations 6
2.5 Guarantee Absolute and Unconditional 6
2.6 Reinstatement 7
2.7 Payments 8
SECTION 3. GRANT OF SECURITY INTEREST 8
SECTION 4. REPRESENTATIONS AND WARRANTIES 9
4.1 Representations in Credit Agreement 9
4.2 No Other Liens 9
4.3 Perfected First Priority Liens 9
4.4 Chief Executive Office 9
4.5 Inventory and Equipment 9
4.6 Intellectual Property 10
SECTION 5. COVENANTS 10
5.1 Delivery of Instruments and Chattel Paper 10
5.2 Maintenance of Perfected Security Interest; Further
Documentation 10
5.3 Changes in Locations, Name, etc. 11
5.4 Intellectual Property 11
SECTION 6. REMEDIAL PROVISIONS 13
6.1 Certain Matters Relating to Receivables 13
6.2 Communications with Obligors; Grantors Remain Liable 13
6.3 Proceeds to be Turned Over To Administrative Agent 14
6.4 Application of Proceeds 14
6.5 Code and Other Remedies 14
6.6 Waiver; Deficiency 15
SECTION 7. THE ADMINISTRATIVE AGENT 15
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. 15
7.2 Duty of Administrative Agent 17
7.3 Execution of Financing Statements 18
7.4 Authority of Administrative Agent 18
SECTION 8. MISCELLANEOUS 18
8.1 Amendments in Writing 18
8.2 Notices 18
8.3 No Waiver by Course of Conduct; Cumulative Remedies 18
8.4 Enforcement Expenses; Indemnification 19
8.5 Successors and Assigns 19
8.6 Set-Off 19
8.7 Counterparts 20
8.8 Severability 20
8.9 Section Headings 20
8.10 Integration 20
8.11 GOVERNING LAW 20
8.12 Submission To Jurisdiction; Waivers 21
8.13 Acknowledgements 21
8.14 Additional Guarantors 21
8.15 Releases 21
8.16 WAIVER OF JURY TRIAL 22
NON-SHARED GUARANTEE AND COLLATERAL AGREEMENT
NON-SHARED GUARANTEE AND COLLATERAL AGREEMENT, dated as of August
19, 1999, made by each of the signatories hereto (together with any other
entity that may become a party hereto as provided herein, the "Grantors"), in
favor of BANK OF AMERICA, N.A. as Administrative Agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions (the
"Lenders") from time to time parties to the Credit Agreement, dated as of
August 19, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among BLOUNT INTERNATIONAL, INC., a Delaware
corporation ("Holdings"), BLOUNT, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), LEHMAN BROTHERS INC., as
advisor, lead arranger and book manager (in such capacity, the "Arranger"),
LEHMAN COMMERCIAL PAPER INC., as syndication agent (in such capacity, the
"Syndication Agent"), and BANK OF AMERICA, N.A., as administrative agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms
and subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and
indirect benefit from the making OF the extensions of credit under the Credit
Agreement; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under
the Credit Agreement that the Grantors shall have executed and delivered this
Agreement to the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Agents and the Lenders to enter into the Credit Agreement and to induce
the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Agents, for the ratable
benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are
used herein as so defined: Accounts, Chattel Paper, Documents, Equipment,
Instruments, Inventory and Investment Property.
(b) The following terms shall have the following meanings:
"Agreement": this Non-Shared Guarantee and Collateral Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to any Agent or any Lender (or, in
the case of any Hedge Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, this Agreement, the other Credit
Documents, any Letter of Credit or any Hedge Agreement entered into by the
Borrower with any Lender (or any Affiliate of any Lender) or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Agents or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof,
whether registered or unregistered and whether published or unpublished
(including, without limitation, those listed in Schedule 5), all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as
licensor or licensee (including, without limitation, those listed in Schedule
5), granting any right under any Copyright, including, without limitation,
the grant of rights to manufacture, distribute, exploit and sell materials
derived from any Copyright.
"Excluded Collateral": all property included in the definition of
"Collateral" in the Shared Collateral Pledge Agreement and any Foreign
Subsidiary Pledge Agreement and all property included in the definition of
"Property" in any Mortgage made in favor of or to be made in favor of the
Collateral Trustee.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, including, without
limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which such
Grantor Is a party or under which such Grantor has any right, title or
interest or to which such Grantor or any property of such Grantor is subject,
as the same may from time to time be amended, supplemented or otherwise
modified, including, without limitation, (i) all rights of such Grantor to
receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of such Grantor to damages arising thereunder and
(iii) all rights of such Grantor to perform and to exercise all remedies
thereunder.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2) or
any other Credit Document to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Syndication Agent, the
Administrative Agent or to the Lenders that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any other Credit
Document).
"Guarantors": the collective reference to each Grantor other than
the Borrower.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"New York UCC": the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Patents": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without limitation,
any of the foregoing referred to in Schedule 5, (ii) all applications for
letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without
limitation, any of the foregoing referred to in Schedule 5, and (iii) all
rights to obtain any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to manufacture, use
or sell any invention covered in whole or in part by a Patent, including,
without limitation, any of the foregoing referred to in Schedule 5.
"Proceeds": all "proceeds" as such term is defined in Section 9-
306(l) of the Uniform Commercial Code in effect in the State of New York on
the date hereof.
"Receivable": any right to payment for goods sold or leased or
for services rendered, whether or not such right is evidenced by an
Instrument or Chattel Paper and whether or not it has been earned by
performance (including, without limitation, any Account).
"Secured Obligations": (i) in the case of the Borrower, the
Borrower Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter adopted or,
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule 5, and (ii) the
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to in
Schedule 5.
"Vehicles": all cars, trucks, trailers, construction and earth
moving equipment and other vehicles covered by a certificate of title law of
any state and, in any event including, without limitation all tires and other
appurtenances to any of the foregoing.
1.2 Other Definitional Provisions.
(a) The words "hereof," "herein", "hereto" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement,
and Section and Schedule references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall
refer to such Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for
the ratable benefit of the Lenders and their respective successors,
transferees and assigns, the prompt and complete payment and performance by
the Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder
and under the other Credit Documents shall in no event exceed the amount
which can be guaranteed by such Guarantor under applicable federal and state
laws relating to the insolvency of debtors (after giving effect to the right
of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at
any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section
2 or affecting the rights and remedies of the Administrative Agent or any
Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in
full force and effect until all the Borrower Obligations and the obligations
of each Guarantor under the guarantee contained in this Section 2 shall have
been satisfied by payment in full, no Letter of Credit shall be outstanding
and the Commitments shall be terminated, notwithstanding that from time to
time during the term of the Credit Agreement the Borrower may be free from
any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from time to
time in reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or
any payment received or collected from such Guarantor in respect of the
Borrower Obligations), remain liable for the Borrower Obligations up to the
maximum liability of such Guarantor hereunder until the Borrower Obligations
are paid in full, no Letter of Credit shall be outstanding and the
Commitments are terminated.
2.2 Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that a Subsidiary Guarantor shall have paid
more than its proportionate share of any payment made hereunder, such
Subsidiary Guarantor shall be entitled to seek and receive contribution from
and against any other Subsidiary Guarantor hereunder which has not paid its
proportionate share of such payment. Each Subsidiary Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3.
The provisions of this Section 2.2 shall in no respect limit the obligations
and liabilities of any Subsidiary Guarantor to the Administrative Agent and
the Lenders, and each Subsidiary Guarantor shall remain liable to the
Administrative Agent and the Lenders for the full amount guaranteed by such
Subsidiary Guarantor hereunder.
2.3 Postponement of Subrogation. Notwithstanding any
payment made by any Guarantor hereunder or any set-off or application of
funds of any Guarantor by the Administrative Agent or any Lender, no
Guarantor shall be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrower or any other
Guarantor or any collateral security or guarantee or right of offset held by
the Administrative Agent or any Lender for the payment of the Borrower
Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor in
respect of payments made by such Guarantor hereunder, until all amounts owing
to the Administrative Agent and the Lenders by the Borrower on account of the
Borrower Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all
of the Borrower Obligations shall not have been paid in full, such amount
shall be held by such Guarantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly indorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
2.4 Amendments, etc. with respect to the Borrower
Obligations. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for
payment of any of the Borrower Obligations made by the Administrative Agent
or any Lender may be rescinded by the Administrative Agent or such Lender and
any of the Borrower Obligations continued, and the Borrower Obligations, or
the liability of any other Person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released
by the Administrative Agent or any Lender, and the Credit Agreement and the
other Credit Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Lenders or all
Lenders, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither
the Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any of the Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; the
Borrower Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 2; and all
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment
to or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee
contained in this Section 2 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the Credit Agreement or any other Credit Document, any of
the Borrower Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off
or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by the Borrower or any other Person
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Borrower Obligations, or
of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor,
the Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on or otherwise pursue such rights and remedies as
it may have against the Borrower, any other Guarantor or any other Person or
against any collateral security or guarantee for the Borrower Obligations or
any right of offset with respect thereto, and any failure by and Agent or any
Lender to make any such demand, to pursue such other rights or remedies or to
collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of tile Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of any Agent or any
Lender against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this
Section 2 shall continue to be effective, or be reinstated, as the case may
be, if at any time payment, or any part thereof, of any of the Borrower
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as
though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent without set-off
or counterclaim in Dollars at the office of the Administrative Agent located
at the Payment Office specified in the Credit Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative
Agent, and hereby grants to the Administrative Agent, for the ratable benefit
of the Lenders, a security interest in, all of the following property now
owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor's Secured
Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Vehicles;
(j) all Investment Property;
(k) all deposit accounts and other bank accounts;
(l) all books and records pertaining to the Collateral; and
(m) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to
any of the foregoing.
Notwithstanding the foregoing, the Collateral shall not include (a) any
Excluded Collateral or (b) any other Property to the extent the grant by a
Grantor of a security interest pursuant to this Agreement in such Property is
prohibited by any applicable contractual obligation or requirement of law or
would give any party thereto (other than the Grantors or Affiliates of the
Grantors) the right to terminate its obligations with respect to such
Property (except that the foregoing limitation shall not affect, limit,
restrict or impair the grant by any Grantor of a security interest pursuant
to this Agreement in any money or other amounts due or to become due under
such Property, including, without limitation, any Account, contract,
agreement, Instrument or indenture).
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and
warrants to the Agents and each Lender that:
4.1 Representations in Credit Agreement. In the case of
each Guarantor, the representations and warranties set forth in Section 4 of
the Credit Agreement as they relate to such Guarantor or to the Credit
Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the Agents and
each Lender shall be entitled to rely on each of them as if they were fully
set forth herein, provided that each reference in each such representation
and warranty to the Borrower's knowledge shall, for the purposes of this
Section 4.1, be deemed to be a reference to such Guarantor's knowledge.
4.2 No Other Liens. No financing statement or other
public notice with respect to all or any part of the Collateral is on file or
of record in any public office, except such as have been filed in favor of
the Administrative Agent, for the ratable benefit of the Lenders, pursuant to
this Agreement or as are permitted by the Credit Agreement.
4.3 Perfected First Priority Liens. The security
interests granted pursuant to this Agreement (a) upon completion of the
filings and other actions specified on Schedule 2 (which, in the case of all
filings and other documents referred to on said Schedule, have been delivered
to the Administrative Agent in completed and duly executed form) will
constitute valid perfected security interests in all of the Collateral (to
the extent perfection of a security interest in such Collateral can be
obtained by such filings or other actions) in favor of the Administrative
Agent, for the ratable benefit of the Lenders, as collateral security for
such Grantor's Secured Obligations, enforceable in accordance with the terms
hereof against all creditors of such Grantor and any Persons purporting to
purchase any Collateral from such Grantor and (b) are prior to all other
Liens on the Collateral in existence on the date hereof except for (i) Liens
permitted by the Credit Agreement and (ii) Liens described on Schedule 6.
4.4 Chief Executive Office. On the date hereof, such
Grantor's jurisdiction of organization and the location of such Grantor's
chief executive office or sole place of business are specified on Schedule 3.
4.5 Inventory and Equipment. On the date hereof, the
Inventory (other than Inventory held by a third party on a consignment basis)
and the Equipment (other than Equipment that has been temporarily removed
from any such location for maintenance or repair and goods which are mobile
and which are of a type normally used in more than one jurisdiction) are kept
at the locations listed on Schedule 4 under its name or in transit from one
of such locations to another.
4.6 Intellectual Property.
(a) Schedule 5 lists all Intellectual Property that is
registered in the United States Patent and Trademark Office or the United
States Copyright Office by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is
valid, subsisting, unexpired and enforceable, has not been abandoned and does
not infringe the intellectual property rights of any other Person.
(c) Except as set forth in Schedule 5, on the date hereof, none
of the material Intellectual Property is the subject of any licensing or
franchise agreement pursuant to which such Grantor is the licensor or
franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of,
or such Grantor's rights in, any material Intellectual Property in any
respect that could reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge of
such Grantor, threatened, on the date hereof (i) seeking to limit, cancel or
question the validity of any Intellectual Property or such Grantor's
ownership interest therein, or (ii) which, if adversely determined, would
have a Material Adverse Effect.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent
and the Lenders that, from and after the date of this Agreement until the
Secured Obligations shall have been paid in full, no Letter of Credit shall
be outstanding and the Commitments shall have terminated:
5.1 Delivery of Instruments and Chattel Paper. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or
Chattel Paper shall be immediately delivered to the Administrative Agent,
effectively endorsed in a manner satisfactory to the Administrative Agent to
be held as Collateral pursuant to this Agreement; provided that, so long as
no Event of Default shall have occurred and be continuing, the relevant
Grantor may retain for collection in the ordinary course of business any
Instruments or Chattel Paper received by such Grantor in the ordinary course
of business.
5.2 Maintenance of Perfected Security Interest; Further
Documentation.
(a) Such Grantor shall maintain the security interest created
by this Agreement as a perfected security interest having at least the
priority described in Section 4.3 and shall defend such security interest
against the claims and demands of all Persons whomsoever (subject in each
case to permitted releases and permitted Liens).
(b) Such Grantor will furnish to the Administrative Agent and
the Lenders from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in
reasonable detail.
(c) At any time and from time to time, upon the written request
of the Administrative Agent, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby.
5.3 Changes in Locations, Name, etc. Such Grantor will
not, except upon 15 days' prior written notice to the Administrative Agent
and delivery to the Administrative Agent of (a) all additional executed
financing statements and other documents reasonably requested by the Agents
to maintain the validity, perfection and priority of the security interests
provided for herein, and (b) if applicable, a written supplement to Schedule
4 showing any additional location at which Inventory or Equipment shall be
kept:
(i) permit any of the Inventory or Equipment (other than
Equipment that has been temporarily removed from any such location for
maintenance or repair and goods which are mobile and which are of a
type normally used in more than one jurisdiction) to be kept at a
location other than those listed on Schedule 4 under its name or in
transit from one of such locations to another;
(ii) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent
in connection with this Agreement would become misleading.
5.4 Intellectual Property.
(a) Such Grantor (either itself or through licensees) will (i)
continue to use each material registered Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
use such registered Trademark with the appropriate notice of registration and
all other notices and legends required by applicable Requirements of Law,
(iii) not adopt or use any mark which is confusingly similar or a colorable
imitation of such Trademark unless the Administrative Agent, for the ratable
benefit of the Lenders, shall obtain a perfected security interest in such
mark pursuant to this Agreement, and (iv) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby
such registered Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not
do any act, or, omit to do any act, whereby any registered Patent that is
material to the conduct of its business may become forfeited, abandoned or
dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will
employ each registered Copyright material to the conduct of its business and
(ii) will not (and will not permit any licensee or sublicensee thereof to) do
any act or knowingly omit to do any act whereby any material portion of such
registered Copyrights may become invalidated or otherwise impaired. Such
Grantor will not (either itself or through licensees) do any act whereby any
material portion of such registered Copyrights may fall into the public
domain.
(d) Such Grantor (either itself or through licensees) will not
do any act that knowingly uses any material Intellectual Property in
violation of the intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the
Lenders immediately if it knows, or has reason to know, that any application
or registration of such Grantor relating to any registered Intellectual
Property material to the conduct of its business may become forfeited,
abandoned or dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent
and Trademark Office, the United States Copyright Office or any court or
tribunal in any country) regarding such Grantor's ownership of, or the
validity of, any registered Intellectual Property material to the conduct of
its business or such Grantor's right to register the same or to own and
maintain the same.
(f) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, such
Grantor shall report such filing to the Administrative Agent within five
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Administrative Agent, such Grantor shall execute
and deliver, and have recorded, any and all agreements, instruments,
documents, and papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Lenders' security interest in any registered
Copyright, Patent or Trademark and the goodwill and general intangibles of
such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all commercially reasonable steps,
including, without limitation, in any proceeding before the United States
Patent and Trademark Office, the United States Copyright Office or any
similar office or agency in any other country or any political subdivision
thereof, to maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the material Intellectual
Property, including, without limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability.
(h) In the event that any registered Intellectual Property
material to the conduct of its business is infringed, misappropriated or
diluted by a third party, such Grantor shall (i) take such actions as such
Grantor shall reasonably deem appropriate under the circumstances to protect
such Intellectual Property and (ii) promptly notify the Agents after it
learns thereof and, if consistent with good business judgment, sue for
infringement, misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such infringement,
misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables.
(a) If required by the Administrative Agent at any time after
the occurrence and during the continuance of an Event of Default, any
payments of Receivables, when collected by any Grantor, (i) shall be
forthwith (and, in any event, within two Business Days) deposited by such
Grantor in the exact form received, duly endorsed by such Grantor to the
Administrative Agent if required, in a Collateral Account maintained under
the sole dominion and control of the Administrative Agent, subject to
withdrawal by the Administrative Agent for the account of the Lenders only as
provided in Section 6.4, and (ii) until so turned over, shall be held by such
Grantor in trust for the Administrative Agent and the Lenders, segregated
from other funds of such Grantor. Each such deposit of Proceeds of
Receivables shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
(b) If required by the Administrative Agent at any time after
the occurrence and during the continuation of an Event of Default, each
Grantor shall deliver to the Administrative Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Receivables, including, without limitation, all original
orders, invoices and shipping receipts.
6.2 Communications with Obligors; Grantors Remain Liable.
(a) The Administrative Agent in its own name or in the name of
others may at any time after the occurrence and during the continuance of an
Event of Default communicate with obligors under the Receivables to verify
with them to the Administrative Agent's satisfaction the existence, amount
and terms of any Receivables.
(b) Upon the request of the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default, each
Grantor shall notify obligors on the Receivables that the Receivables have
been assigned to the Administrative Agent for the ratable benefit of the
Lenders and that payments in respect thereof shall be made directly to the
Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each
Grantor shall remain liable under each of the Receivables to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any Receivable (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Administrative Agent or any Lender of any payment relating thereto, nor shall
the Administrative Agent or any Lender be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Receivable (or
any agreement giving rise thereto), to make any payment, to make any inquiry
as to the nature or the sufficiency of any payment received by it or as to
the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to it or to which it
may be entitled at any time or times.
6.3 Proceeds to be Turned Over To Administrative Agent.
In addition to the rights of the Administrative Agent and the Lenders
specified in Section 6.1 with respect to payments of Receivables, if an Event
of Default shall occur and be continuing, all Proceeds received by any
Grantor consisting of cash, checks and other near-cash items shall be held by
such Grantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the Administrative Agent in the
exact form received by such Grantor (duly endorsed by such Grantor to the
Administrative Agent, if required). All Proceeds received by the
Administrative Agent hereunder shall be held by the Administrative Agent in a
Collateral Account maintained under its sole dominion and control. All
Proceeds while held by the Administrative Agent in a Collateral Account (or
by such Grantor in trust for the Administrative Agent and the Lenders) shall
continue to be held as collateral security for all the Secured Obligations
and shall not constitute payment thereof until applied as provided in Section
6.4.
6.4 Application of Proceeds. At such intervals as may be
agreed upon by the Borrower and the Administrative Agent, or, if an Event of
Default shall have occurred and be continuing, at any time at the Agents'
election, the Administrative Agent may apply all or any part of Proceeds
constituting Collateral, whether or not held in any Collateral Account, and
any proceeds of the guarantee set forth in Section 2, in payment of the
Secured Obligations in the following order:
First, to pay incurred and unpaid fees and expenses of the
Administrative Agent under the Credit Documents;
Second, to the Administrative Agent, for application by it
towards payment of amounts then due and owing and remaining unpaid in
respect of the Secured Obligations, pro rata among the Lenders
according to the amounts of the Secured Obligations then due and owing
and remaining unpaid to the Lenders;
Third, to the Administrative Agent, for application by it towards
prepayment of the Secured Obligations, pro rata among the Lenders
according to the amounts of the Secured Obligations then held by the
Lenders; and
Fourth, any balance of such Proceeds remaining after the Secured
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid
over to the Borrower or to whosoever may be lawfully entitled to
receive the same.
6.5 Code and Other Remedies. If an Event of Default
shall occur and be continuing, the Administrative Agent, on behalf of the
Lenders, may exercise, in addition to all other rights and remedies granted
to them in this Agreement and in any other instrument or agreement securing,
evidencing or relating to the Secured Obligations, all rights and remedies of
a secured party under the New York UCC or any other applicable law. Without
limiting the generality of the foregoing, the Administrative Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to
or upon any Grantor or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign,
give option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange,
broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent or any
Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in any Grantor, which right or equity is hereby waived and
released. Each Grantor further agrees, at the Administrative Agent's request
to assemble the Collateral and make it available to the Administrative Agent
at places which the Administrative Agent shall reasonably select, whether at
such Grantor's premises or elsewhere. The Administrative Agent shall apply
the net proceeds of any action taken by it pursuant to this Section 6.5,
after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Secured Obligations, in such order as the
Administrative Agent may elect, and only after such application and after the
payment by the Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(l)(c) of the
New York UCC, need the Administrative Agent account for the surplus, if any,
to any Grantor. To the extent permitted by applicable law, each Grantor
waives all claims, damages and demands it may acquire against the
Administrative Agent or any Lender arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable
and proper if given at least 10 days before such sale or other disposition.
6.6 Waiver; Deficiency. Each Grantor waives and agrees
not to assert any rights or privileges which it may acquire under Section 9-
112 of the New York UCC. Each Grantor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay its Secured Obligations and the fees and disbursements of
any attorneys employed by the Agents or any Lender to collect such
deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Administrative
Agent the power and right, on behalf of such Grantor, without notice to or
assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any Receivable or with respect to any other Collateral and file any
claim or take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Administrative Agent for
the purpose of collecting any and all such moneys due under any
Receivable or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property that is
Collateral, execute and deliver, and have recorded, any and all
agreements, instruments, documents and papers as the Administrative
Agent may request to evidence the Administrative Agent's and the
Lenders' security interest in such Intellectual Property and the
goodwill and general intangibles of such Grantor relating thereto or
represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of
the premiums therefor and the costs thereof,
(iv) execute, in connection with any sale provided for in
Section 6.6 or 6.7, any endorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (4) commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
portion thereof and to enforce any other right in respect of any
Collateral; (5) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Administrative Agent
may deem appropriate; (7) assign any Copyright, Patent or Trademark
that is Collateral (along with the goodwill of the business to which
any such Copyright, Patent or Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect
to or otherwise deal with any of the Collateral as fully and completely
as though the Administrative Agent were the absolute owner thereof for
all purposes, and do, at the Administrative Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and
things which the Administrative Agent deems necessary to protect,
preserve or realize upon the Collateral and the Administrative Agent's
and the Lenders' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Agreement to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this Section 7.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The reasonable expenses of the Administrative Agent
incurred in connection with actions undertaken as provided in this Section
7.1, together with interest thereon at a rate per annum equal to the rate per
annum at which interest would then be payable on past due Revolving Credit
Loans that are Base Rate Loans under the Credit Agreement, from the date of
payment by the Administrative Agent to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Administrative Agent on
demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 Duty of Administrative Agent. The Administrative
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
New York UCC or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar property for its own account.
Neither the Administrative Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of any Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
The powers conferred on the Administrative Agent and the Lenders hereunder
are solely to protect the Administrative Agent's and the Lenders' interests
in the Collateral and shall not impose any duty upon the Administrative Agent
or any Lender to exercise any such powers. The Administrative Agent and the
Lenders shall be accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor
for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to
Section 9-402 of the New York UCC and any other applicable law, each Grantor
authorizes the Administrative Agent to file or record financing statements
and other filing or recording documents or instruments with respect to the
Collateral without the signature of such Grantor in such form and in such
offices as the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under this
Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
7.4 Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and
valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or
provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except in accordance with Section 10.1 of the Credit
Agreement.
8.2 Notices. All notices, requests and demands to or
upon the Administrative Agent or any Grantor hereunder shall be effected in
the manner provided for in Section 10.2 of the Credit Agreement; provided
that any such notice, request or demand to or upon any Guarantor shall be
addressed to such Guarantor (other than Holdings) at its notice address set
forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Agents nor any Lender shall by any act (except by a written
instrument pursuant to Section 10.1 of the Credit Agreement), delay,
indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default.
No failure to exercise, nor any delay in exercising, on the part of any Agent
or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by any Agent
or any Lender of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which such Agent or such Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in
collecting against such Guarantor under the guarantee contained in Section 2
or otherwise enforcing or preserving any rights under this Agreement and the
other Credit Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other taxes which may be payable or determined to be payable
with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to do so pursuant to
Section 10.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment
of the Secured Obligations and all other amounts payable under the Credit
Agreement and the other Credit Documents.
8.5 Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of each Grantor and shall inure
to the benefit of the Agents and the Lenders and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any
of its rights or obligations under this Agreement without the prior
written consent of the Agents.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes
the Administrative Agent and each Lender at any time and from time to time
while an Event of Default pursuant to Section 8(a) of the Credit Agreement
shall have occurred and be continuing, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held
or owing by the Administrative Agent or such Lender to or for the credit or
the account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Grantor to the Administrative Agent or
such Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Credit
Document or otherwise, as the Administrative Agent or such Lender may elect,
whether or not the Administrative Agent or any Lender has made any demand for
payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender shall
notify such Grantor promptly of any such set-off and the application made by
the Administrative Agent or such Lender of the proceeds thereof, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Administrative Agent and each
Lender under this Section 8.6 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
8.10 Integration. This Agreement and the other Credit
Documents represent the agreement of the Grantors, the Agents and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Agents or any
Lender relative to subject matter hereof and thereof not expressly set forth
or referred to herein or in the other Credit Documents.
8.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 8.12 any special, exemplary, punitive or
consequential damages.
8.13 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit Documents
to which it is a party;
(b) neither the Agents nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Credit Documents,
and the relationship between the Grantors, on the one hand, and the
Agents and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Grantors and the
Lenders.
8.14 Additional Guarantors. Each Subsidiary of the
Borrower that is required to become a party to this Agreement pursuant to
Section 6.10(c) of the Credit Agreement shall become a Guarantor (and,
thereby a Grantor) for all purposes of this Agreement upon execution and
delivery by such Subsidiary of an Assumption Agreement in the form of Annex I
hereto.
8.15 Releases.
(a) At such time as the Loans, the Reimbursement Obligations
and the other Secured Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be
outstanding, the Collateral shall be released from the Liens created hereby,
and this Agreement and all obligations (other than those expressly stated to
survive such termination) of the Agents and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act
by any party, and all rights to the Collateral shall revert to the Grantors.
At the request and sole expense of any Grantor following any such
termination, the Agents shall deliver to such Grantor any Collateral held by
the Administrative Agent hereunder, and execute and deliver to such Grantor
such documents as such Grantor shall reasonably request to evidence such
termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent, at the request and sole expense of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral. At the request and sole expense of the
Borrower, a Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Guarantor shall be sold, transferred
or otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Borrower shall have delivered to the Administrative Agent
at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance
with the Credit Agreement and the other Credit Documents.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR
ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Non-
Shared Guarantee and Collateral Agreement to be duly executed and delivered
as of the date first above written.
BLOUNT INTERNATIONAL, INC.
By: ____________________________
Title:
BLOUNT, INC.
By: ____________________________
Title:
BI HOLDINGS CORP.
By:________________________
Title:
BENJAMIN F. SHAW COMPANY
By:________________________
Title:
BI, L.L.C.
By:________________________
Title:
BLOUNT DEVELOPMENT CORP.
By:________________________
Title:
OMARK PROPERTIES, INC.
By:________________________
Title:
4520 CORP., INC.
By:________________________
Title:
GEAR PRODUCTS, INC.
By:________________________
Title:
DIXON INDUSTRIES, INC.
By:________________________
Title:
FREDERICK MANUFACTURING
CORPORATION
By:________________________
Title:
FEDERAL CARTRIDGE COMPANY
By:________________________
Title:
SIMMONS OUTDOOR CORPORATION
By:________________________
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:________________________
Title:
CTR MANUFACTURING, INC.
By:________________________
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:________________________
Title:
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
FOR ALL GUARANTORS:
c/o Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116-1602
Attention: General Counsel
Telecopy: 334-271-8130
Telephone: 334-244-4340
SCHEDULE 2
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
As set forth on attached schedule of UCC filings.
Patent and Trademark Filings
Filing of copy of Non-Shared Guarantee and Collateral Agreement (or other
form of security agreement to be agreed) in the Patent and Trademark
Office.
Other Actions
None.
NON-SHARED COLLATERAL FORMS UCC-1
DEBTOR STATE/FILING OFFICE
------ -------------------
1.(a) Blount International, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
2.(a) Blount, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) California SOS
(c) Idaho SOS
(d) Minnesota SOS
(e) [Nebraska S0S]
(f) North Carolina SOS
(g) Oregon SOS
(h) Wisconsin SOS
(i) Wisconsin Price County
(Prentice)
(j) Missouri [ ] County
(Chesterfield)
3.(a) Federal Cartridge Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Indiana S0S
(c) Indiana Wayne County
(Richmond)
(d) Minnesota S0S
(e) Indiana Madison County
(Indianapolis)
(Offsite goods)
(f) New York SOS
(Offsite goods)
(g) New York Eirie County
(Offsite goods)
(h) Minnesota Anoka County
(St. Francis, Anoka)
4.(a) Dixon Industries, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Kansas S0S
(c) Kansas Montgomery County
(Coffeyville)
(d) Alabama SOS
(e) Minnesota SOS
(f) Indiana SOS
(g) Indiana [ ] County
(Indianapolis)
(h) Utah [ ] SOS
(Salt Lake City)
5.(a) Frederick Manufacturing
Corporation
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Missouri S0S
(c) Missouri Jackson County
(Kansas City)
6.(a) CTR Manufacturing Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) North Carolina SOS
(c) North Carolina Wake County
7.(a) Gear Products, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oklahoma Oklahoma County
(Central Filing)
8.(a) Simmons Outdoor Corporation
4520 Executive Park Drive
Montgomery, AL 36116 Georgia Thomas County
9.(a) BI Holdings Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
10.(a) Benjamin F. Shaw Company
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
11.(a) BI, L.L.C.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oregon SOS
12.(a) Blount Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
13.(a) Omark Properties, Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
(b) Oregon SOS
14.(a) 4520 Corp., Inc.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
15.(a) Mocenplaza Development Corp.
4520 Executive Park Drive
Montgomery, AL 36116 Alabama SOS
SCHEDULE 3
LOCATION OF JURISDICTION OF
ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Location
- ------------------------------- ----------------------------------------------
Jurisdiction of Jurisdiction of
Organization Chief Executive Office
----------------------- ----------------------
Blount International, Inc. Delaware Alabama
BI Holdings Corp. Delaware Alabama
Benjamin F. Shaw Company Delaware Alabama
BI, L.L.C. Delaware Oregon
Blount Development Corp. Delaware Alabama
Omark Properties, Inc. Oregon Oregon
4520 Corp., Inc. Delaware Alabama
Gear Products, Inc. Oklahoma Oklahoma
Dixon Industries, Inc. Kansas Kansas
Frederick Manufacturing
Corporation Delaware Missouri
Federal Cartridge Company Minnesota Minnesota
Simmons Outdoor Corporation Delaware Georgia
Mocenplaza Development Corp. Delaware Alabama
CTR Manufacturing, Inc. North Carolina North Carolina
SCHEDULE 4
LOCATION OF INVENTORY AND EQUIPMENT
See Schedule 4.22 of the Credit Agreement.
In addition:
Federal Cartridge Company
- -------------------------
Olin Brass
1800 South Holt Road
Indianapolis, IN 46241
(Madison County)
Outokumpo American Brass
70 Sayre Street
Buffalo, NY 14207
(Eire County)
Northland Screw Products
PO Box 429
3855 Stark Drive
St. Francis, MN
(Anoka County)
Blount, Inc.
- ------------
Olin Brass
1800 South Holt Road
Indianapolis, IN 46241
(Madison County)
SCHEDULE 5
REGISTERED COPYRIGHTS AND COPYRIGHT LICENSES
See Schedule 5A and 5B
REGISTERED PATENTS AND PATENT LICENSES
See Schedule 5A and 5B
REGISTERED TRADEMARKS AND TRADEMARK LICENSES
See Schedule 5A and 5B
SCHEDULE 5A
BLOUNT INC. - PATENTS
Chain saw with chain tensioner
Inventor: GIBSON D M; HILLE A A; HUNTINGTON K L; WEBER J
US 5896670 A 19990427
Appts. for loading primers into component holder for transfer into
cartridge casing - has primer holder strip with several primer containing
receptacles and teeth which form gaps, providing means of indexing strip as
it progresses along track in cartridge case primer loading device
Inventor: BILL E F; BLODGETT F B; BRAND J D; KOCH S J; RODRIQUES L V;
SCHUFELDT A D; SHIELDS S R; SMITH R L
US 5831197 A 19981103
Depth gauge for cutter teeth of chainsaws, sawblades etc. - has front end
offset from centreline and rear end offset to opposite side where distance
across offsets is greater than blade width
Inventor: HARFST M D
EP 865886 A2 19980923
JP 10315202 A 19981202
Steel composition and heat treatment for saw chains used at low temperature
- - the composition having an increased nickel content which increases the
toughness of the steel when austempered
Inventor: LEWIS D E; PECK J; THOMSON I A; WARD L G
US 5772957 A 19980630
Cutter for an endless cutter device - comprises a body portion with a
cutter, also has a depth gauge portion on the forward region of the body
portion which comprises a plate portion
Inventor: BURROWS J O; HUNTINGTON K L; JENSEN R D
US 5740715 A 19980421
Tool for inserting primer into cartridge case - comprises priming station
having holder that holds cartridge case with primer socket in target
position for receiving primer from target receptacle of primer holder strip
Inventor: BLODGETT F B; BRAND J D; LEGG D F; PETERS A F; RODRIQUES L V;
SHIELDS S R
US 5693905 A 19971202
Apparatus for loading cartridge reloading components, e.g. primers, into
component holder - has tray, including strip receptacle to receive and
position component holder, to receive and orient primers
Inventor: BILL E F; BLODGETT F B; BRAND J D; KOCH S J; RODRIQUES L V;
SCHUFELDT A D; SHIELDS S R; SMITH R L
EP 790477 A2 19970820
US 5747718 A 19980505
Holder for feeding components such as primers or bullets into reloading
machine, used by enthusiasts - includes elongate strip having notched
longitudinal margins for indexing the strip as it progresses through the
reloading machine, with strip having receptacles for holding these
components
Inventor: BILL E F; BLODGETT F B; PETERS A F; RANFT K; RODRIGUES L V; SMITH
R L; ZUCK D A
EP 789220 A2 19970813
US 5719348 A 19980217
US 5767433 A 19980616
Chain saw guide bar to aid in selection of replacement guide bar and saw
chain - has coloured insert installed in aperture of guide bar, with insert
is coloured to indicate the proper type of chain for the guide bar
Inventor: HILLE A A; PENBERTHY R J
US 5649367 A 19970722
EP 807498 A1 19971119
Target trap with ratchet and pawl mechanism - permits arm to rotate in
first rotational direction when arm begins motion from cocked position and
arrests motion of arm against rotation in first rotational direction when
arm changes rotational direction
Inventor: ORWOLL E G
US 5605139 A 19970225
High strength steel with good low temp. toughness - involves using compsn.
with reduced nickel@ content which is austenised and austempered, to
produce a steel suitable for saw chains
Inventor: LEWIS D E; PECK J; THOMSON I A; WARD L G
EP 745696 A1 19961204
JP 8311604 A 19961126
US 5651938 A 19970729
Cartridge magazine capacity extender for firearms - has metal body with
cartridges having upper outlet through which cartridges may exit having
follower body disposed in with slidable collar
Inventor: CHESNUT M G; SWEET D D
US 5526600 A 19960618
Saw chain cutter with bent over depth gauge esp, for cutting kerf in
workpiece - has cutter placed on rearward region of body, whose heel is
clipped to permit limited rearward rocking of cutter
Inventor: BURROWS J O; HUNTINGTON K L; JENSEN R D
EP 712700 A1 19960522
JP 8207004 A 19960813
US 5666871 A 19970916
Magazine for holding firearm cartridges - has follower assembly, for moving
cartridges through chamber towards open end, including follower body and
force spring unit
Inventor: CHESNUT M G; SWEET D D; ULASIK M A
US 5507110 A 19960416
Recoil pad assembly for attachment to stock of firearm - has lock including
locking plate for connecting recoil pad sub-assembly to mounting sub-
assembly, with fastener for causing bottom portions of recoil pad sub-
assembly to be compressed
Inventor: CHESNUT M G; ULASIK M
US 5471776 A 19951205
Motorised case trimmer for controlling length of cartridge for reloading
rifle and gun - has lever operated case holder having trimming blade
slidably mounted upon rails for quick and easy movement and handle
providing one stop motion
Inventor: BLODGETT F B; BRAND J D; KOCH S J; SMITH R L
EP 685703 A1 19951206
AU 9513643 A 19951207
BR 9502558 A 19951226
US 5497539 A 19960312
AU 686296 B 19980205
US 5718423 A 19980217
Wood processing device for delimbing tree limbs of felled trees - has
support and feeding structure having blading structure mounted on housing
having impact hammer structures operatively coupled to blade having
actuator
Inventor: LANSBERRY J B
US 5465771 A 19951114
EP 712571 A1 19960522
NO 9504532 A 19960520
CA 2160325 A 19960516
FI 9505483 A 19960516
BR 9505175 A 19971028
NO 302922 B1 19980511
CA 2160325 C 19980811
EP 712571 B1 19981216
DE 69506677 E 19990128
Tree harvesting and severing device - has housing with holding structure
constructed and arranged with respect to having cutting blade mounted to be
movable between positions
Inventor: LANSBERRY J B
US 5465770 A 19951114
EP 712570 A1 19960522
NO 9504531 A 19960520
CA 2160327 A 19960516
FI 9505484 A 19960516
BR 9505174 A 19971028
EP 712570 B1 19981216
DE 69506676 E 19990128
CA 2160327 C 19990202
Lens cap assembly for firearm scope having first scope lens - includes
first connection assembly for fixing lid assembly to firearm scope, with
first lid assembly having lens ring for receiving first polarised lens
Inventor: CHESNUT M G; SWEET D D; ULASIK M A; WATSON J B; CHESNUT M
WO 9529377 A1 19951102
AU 9523837 A 19951116
US 5495676 A 19960305
US 5561563 A 19961001
Tool, pref. hand held, for inserting primer into ammunition cartridge cases
- - has guard selectively closing off passage through which primers are
supplied to station when primer already in station is being inserted into
cartridge
Inventor: BLODGETT F B; SCHUFELDT A D; SHIELDS S R
US 5435223 A 19950725
AU 9511309 A 19950824
EP 672884 A2 19950920
BR 9500650 A 19951024
EP 672884 A3 19960417
EP 672884 B1 19980729
DE 69412065 E 19980903
Blade assembly with cooperating teeth for hedge trimmer - has guard
portions which prevent camming away or deflection of hedge material while
providing more open throat
Inventor: GIBSON D M
EP 635200 A1 19950125
CA 2125261 A 19950122
US 5412873 A 19950509
Chain saw blade with wire form connectors - has upright plate formed cutter
links connected by wire links with bore to permit limited degree of
vertical movement
Inventor: HARFST M D
EP 597816 A2 19940518
EP 597816 A3 19940817
Multi-ring sprocket for chain - comprises rounded polygon hub received in
bores of rings which have sprocket teeth, and mounted in face-to-face
nesting engagement
Inventor: KUZAROV E
US 5303477 A 19940419
Grapple saw for felling tree - has frame for receiving tree to be felled
and includes grapple arm mounted on frame to pivot to hold tree against
frame
Inventor: FISHER T A; WIEMERI R W
US 5267594 A 19931207
Method for cutting metal with chain saw - involves using slower speed chain
with first tooth of link at negative angle to reduce breakages on re-entry
RD 354017 A 19931010
Multi-purpose die for cartridge reloading press - uniformly coats exterior
of cartridge case with lubricant, eject spent primer, resize exterior of
case, wipe and lightly lubricate neck interior and resize neck interior in
one operation
Inventor: BENDER W W; CHANEY A
US 5221806 A 19930622
Saw chain for cutting aggregate material - has abrasive particle
impregnated mesh with support from edge links of chain
Inventor: SCOTT L A
US 5215072 A 19930601
Cutting tooth for tree felling - has aperture to receive mount, with
intersections of each side section with front surface forming cutting edge
Inventor: CARLSON B W; WIEMERI R W
US 5211212 A 19930518
Convertible ammunition reloading press - includes base with first and
second tool holder plates
Inventor: SHIELDS S R
US 5202529 A 19930413
Electroplating heat treatable chromium@ onto cutter elements - from
trivalent chromium bath contg. reducing agent and sulphate catalyst,
provides good wear resistance
Inventor: DASH J; DEHAVEN J
US 5194100 A 19930316
Rim-fire cartridge mfr., free from toxic metals - includes propellant
tamped over primer dried in situ in casing base
Inventor: BJERKE R K; KEES K P; STEVENS W H; WARD J P
EP 529230 A2 19930303
ZA 9202779 A 19921230
CA 2067302 A 19930109
BR 9202626 A 19930316
US 5216199 A 19930601
EP 529230 A3 19950503
EP 529230 B1 19980107
DE 69223881 E 19980212
ES 2111586 T3
Chain saw for aggregate materials - has guards formed or attached to side
link pairs positioned between successive cutting blocks
Inventor: BELL D A
US 5184598 A 19930209
Rivet connector for hedge cutting blade - has central flange and distal
hubs with flange occupying slots in cutting blade while hubs attach within
apertures of stationary blade
Inventor: KUZAROV E J; PENBERTHY R
US 5153996 A 19921013
System for controlling saw chain tension - guide bar is loosened by
loosening hold-down screw and this loosened guide bar is slightly spaced
away from chain saw mounting plate
Inventor: WEBER J
US 5144751 A 19920908
Selectable spray pattern chain saw bar system - with tubular or dual valve
plate flow controller slidable in chamber for engagement by harvester
actuator
Inventor: PLUMBLEY R A; SEIGNEUR C D
US 5143131 A 19920901
AU 9211260 A 19930429
Chain saw sprocket - has teeth defining gullets to receive centre link tang
portions of saw chain, and cooperates with guide bar
Inventor: BELL D A; KUZAROV E
US 5136783 A 19920811
Feed mechanism for cutting device - includes arm pivotally mounted to chain
saw carrying dog for pivotally engaging workpiece at kerb
Inventor: BELL D A
US 5129160 A 19920714
EP 517447 A1 19921209
EP 517447 B1 19951213
DE 69206683 E 19960125
Saw chain having headless fastener - has centre links and side link pairs
that are pivotally joined by headless fastener with side link pairs formed
into integral unit by bridge portion to receive centre link between
Inventor: EDGERTON J L
US 5123400 A 19920623
IT 1254396 B 19950914
Ultrasonic log grading system - uses computer to determine grade of log
and produce output signal from transient time data and length-dia. signals
Inventor: MACK M J
US 5097881 A 19920324
AU 9210895 A 19921029
SE 9200483 A 19921026
NO 9200530 A 19921026
BR 9200510 A 19921201
CA 2061218 A 19921026
FI 9200654 A 19921026
AU 648867 B
Repairable guide bar for tree harvesters - has bendable section
betweenmounting bracket and principal cutting portion of bar
Inventor: LOC ; SEIGNEUR C D
US 5093998 A 19920310
Chain saw drive sprocket - achieves reduced hammering and wear via support
portions on rims with relief between supports
Inventor: ONEEL T H
EP 476819 A 19920325
US 5098348 A 19920324
CA 2040526 A 19920319
BR 9102178 A 19920428
Saw chain - has cutter link with central pivot on bottom edge
Inventor: MAC ; MACGAVIN D J; PETROVICH M V
US 5092211 A 19920303
Fluid injecting nose sprocket for chain saw guide bar - has channels for
conducting fluid and sprocket with grooves for injecting fluid into bearing
surface
Inventor: EDGERTON J L; TAY ; TAYLOR W L
US 5092044 A 19920303
Bow sight with projected reticle aiming spot - with range adjustment
provided by moving reticle projection mirror to shift aiming spot between
different pre-calibrated range positions
Inventor: STAWARZ D A
US 5090805 A 19920225
Abrasive cutting appts. - has inverted cutting chain with inward facing
cutting elements
Inventor: SCOTT L A
EP 474446 A 19920311
CA 2050445 A 19920305
US 5119798 A 19920609
ZA 9106810 A 19920527
EP 474446 A3 19920826
Mfg. hollow point bullet - by forming slits in bullet jacket to promote
desired mushrooming without fragmentation
Inventor: IMTHURN D A; MOORE S R; OLIN B
US 5079814 A 19920114
Vegetation cutting tool - has fixed elongated blade mounted on power head
of tool with reciprocating teeth with sides configured in complex curve
Inventor: KLYZEK C R; KUZAROV E J; NEUSCHWANGER K E; RAETZ K P; NEUSCHWANG
K EEP 465117 A 19920108
CA 2041959 A 19911230
US 5093999 A 19920310
US 5138908 A 19920818
EP 465117 B1 19940921
DE 69104145 E 19941027
Chain saw guide bar - is formed by wire spacing laminates and contg.
adhesive foam core
Inventor: ONEEL T H
US 5067243 A 19911126
DE 4206064 A 19920924
FR 2674169 A1 19920925
CA 2058811 A 19920923
Cartridge case flash hole finishing tool - has pilot on shank of aperture
cutting tool coaxial to cutter, below limit stop
Inventor: SMITH R L
US 5066174 A 19911119
Tree harvester guide bar - has pattern of interconnecting oil channels
leading to bar edge, contg. C-shaped valves
Inventor: SEIGNEUR C D
US 5056224 A 19911015
EP 494491 A1 19920715
AU 9181348 A 19920716
CA 2047927 A 19920708
FI 9200056 A 19920708
Repairable guide bar for tree harvesters - has pliable section of lowered
hardness in limited zone between mounting bracket and cutter
Inventor: SEIGNEUR C D; VANDERZANDEN J L; VANDERZAND J L
US 5052109 A 19911001
ZA 9103314 A 19920226
EP 482763 A 19920429
AU 9176272 A 19920430
CA 2041449 A 19920427
FI 9102732 A 19920427
BR 9102177 A 19920616
EP 482763 B1 19940316
DE 69101422 E 19940421
Chain saw bar fluid passage - has bar with slot extending from attachment
end to nose end of bar
Inventor: HARFST M D; PINK P W; PLUMBLEY R A; SINCLAIR J B
US 5050303 A 19910924
Cartridge reloading press with controlled powder dispensing - has case-
detecting arm engaged with drive rod to operate powder measure
Inventor: BENDER W W
US 5024135 A 19910618
Chain saw sprocket assembly - has adaptor with opening for saw drive shaft,
and with shaft member having rim sprocket
Inventor: CALKINS E E; PETROVICH M V
EP 418436 A 19910327
Cutting chain for aggregate materials - has side plates spaced by
connecting web supporting front and rear of cutting block
Inventor: EDGERTON J L; SCOTT L A; WEBER J
US 4971022 A 19901120
EP 453322 A 19911023
ZA 9100645 A 19911030
CA 2035072 A 19911024
Sprocket nose guide bar for chain saw - has shaped sprocket to guide and
lift saw chain
Inventor: BELL D A
US 4970789 A 19901120
NO 9002563 A 19901211
EP 427370 A 19910515
AU 9050557 A 19910411
CA 2010757 A 19910406
SE 9002851 A 19910407
Primer compsn. - contains percussion sensitive explosive, sec. explosive,
nitrate ester fuel and strontium nitrate, for small arms munitions
Inventor: BJERKE R K; ELIS D O; KEES K P; WARD J P; ELLS D O
US 4963201 A 19901016
EP 440873 A 19910814
CA 2027449 A 19910711
CA 2027449 C 19940412
EP 440873 B1 19940622
DE 69010180 E 19940728
ES 2056290 T3 19941001
Device to fell tree - has circular saw mounted to felling head on vehicle
and fixed guard with opening
Inventor: MITCHELL J N; WIEMERI R W
US 4921024 A 19900501
Hay bale cutting chain - has cutting link with vertical cutting edge and
truncated top plate
Inventor: TALBOT R E; WUNDER B C
US 4903562 A 19900227
Low vibration centre drive cutter chain - side links of varying widths, and
provided with forward and rearward pivot openings
Inventor: HILLE A A
US 4898057 A 19900206
EP 402560 A 19901219
Integral dust cover and pump drive - has combination seal and worm gear
drive member slidably fitted to clutch cup
Inventor: LANE R D
US 4893407 A 19900116
EP 400768 A 19901205
BR 8906835 A 19901204
CA 2005956 A 19901130
Lubricating die for cartridge reloader - has reservoir for lubricant and
reloading die in form of rod which is lubricated for re-sizing
Inventor: BENDER W W
US 4890534 A 19900102
AU 8944446 A 19900906
Saw chain wear link - has abrasion resistant link with rectangular pin
openings
Inventor: HARFST M D
US 4873903 A 19891017
EP 351455 A 19900124
JP 2034301 A 19900205
AU 8825848 A 19900111
BR 8900692 A 19901002
Chain saw cutting aggregate stone, or concrete - consists of centre links,
side links and cutting block supported on some side links by bonding on
links upper edges
Inventor: BOLKAN K R; HOFFMAN F E; SCOTT L A
EP 337753 A 19891018
ZA 8808979 A 19890830
AU 8930164 A 19891019
US 4920947 A 19900501
Chain saw sprocket assembly - has relieved landing between spline base of
adaptor to provide clearance for tang
Inventor: CALKINS E E; PETROVICH M V
EP 333460 A 19890920
AU 8827464 A 19890921
US 4876796 A 19891031
BR 8900018 A 19900301
Saw chain cutting link hook angle - gauge has openings which can be placed
at different heights relative to bar edge
Inventor: PETROVICH M V
EP 333355 A 19890920
US 4862593 A 19890905
Laminated guide bar for chain saw - has laminate centre which resists
deformation and is inert to oil
Inventor: HILLE A A; KELSAY I
EP 333354 A 19890920
AU 8827471 A 19890921
JP 1297201 A 19891130
US 4885843 A 19891212
Vehicle mountable tree felling implement - has frame with opening for tree
and mounting for chain saw
Inventor: MITCHELL J N; WIEMERI R W
US 4848424 A 19890718
Hand gun and rifle cartridge reloading device - includes overhead die
holder, slidable plunger and cartridge holding turret mounted on top of
plunger, with indexing shaft
Inventor: BENDER W W; GAUSTAD C A
US 4841831 A 19890627
EP 366222 A 19900502
AU 8939317 A 19900426
EP 366222 B1 19940223
DE 68913266 E 19940331
US 34612 E 19940524
Saw chain with wrap-over depth gauge - includes planar side portions
carrying cutting element and interconnected by cross piece forming U-shaped
zone to determine cut depth
Inventor: MARTIN K B
US 4841825 A 19890627
Sprocket with radial clearing arrangement - has circumferentially-spaced
pockets to receive chain drive tangs, and including enlarged clearance
portions
Inventor: REYNOLDS M J
US 4816010 A 19890328
Saw chain hooded cutter link - has side and top plates with identical face
angles and more blunt then hook angle, itself about 30 deg.
Inventor: MACGAVIN D J; PETROVICH M V
EP 308276 A 19890322
AU 8822349 A 19890323
BR 8804767 A 19890425
Saw chain cutter with rearward meal tooth - has carbide layer fused onto
kerf side and bottom cutting parts
Inventor: SCOTT L A
EP 306767 A 19890315
Recessed-head riveted structure - comprises rivet opening with frusto-
conical surface between in board and outboard plate surfaces, with rivet
deformed into opening
Inventor: HARFST M D; HUNTINGTON K L
EP 304270 A 19890222
BR 8803094 A 19890228
Link for use in chain - has two integral portions, one folded to form bight
with parallel walls defining space receiving portion of adjacent link
Inventor: HARFST M D
EP 304256 A 19890222
US 4813323 A 19890321
AU 8819059 A 19890223
BR 8803080 A 19890502
EP 304256 B 19911016
DE 3865586 G 19911121
CA 1306405 C 19920818
Brush cutting circular blade - has cutter edge curved but outward directed
as hook-shape slitter edge to cut willow-type stems
Inventor: HUNTINGTON K L
US 4782731 A 19881108
EP 302609 A 19890208
AU 8815386 A 19890209
CA 1283546 C 19910430
Saw chain cutter link - has file guide edge extending between depth gauge
peak and cutter portion
Inventor: DAY K R; GIBSON D M; HUNTINGTON K L; PETROVICH M V
EP 292241 A 19881123
US 4785700 A 19881122
EP 292241 B 19910814
DE 3864189 G 19910919
CA 1307999 C 19920929
Chain saw drive sprocket with wear mark indicators - comprises grooves in
saw contacting surface, each at preset distance from chain tip
Inventor: SCOTT G
US 4776826 A 19881011
EP 332743 A 19890920
AU 8824408 A 19890914
BR 8806127 A 19900626
CA 1302734 C 19920609
Saw chain relieved link - has side links with splayed edges and centre with
inset portions
Inventor: WOLD J K
US 4773160 A 19880927
EP 353359 A 19900207
Chain for cutting wood - has first vertical links interconnected by second
horizontal links, each with associated cutting element
Inventor: SCOTT L A; WEBER J
EP 268054 A 19880525
AU 8780907 A 19880512
US 4827821 A 19890509
CA 1306404 C 19920818
EP 268054 B1 19930224
DE 3784311 G 19930401
Cutting line for rotating string cutter e.g. electric lawn mower - has
several sharp edges equally spaced apart circumferentially about periphery
of line enabling them to engage grass to be cut
Inventor: MICKELSON R
EP 260158 A 19880316
AU 8810046 A 19880728
NO 8800198 A 19880815
FI 8800263 A 19880724
US 4869055 A 19890926
CA 1292122 C 19911119
Saw chain with reduced vibration - includes cutting and safety side links,
latter acting to pivot during cutting to absorb impact
Inventor: MACGAVIN D J
US 4643065 A 19870217
EP 251493 A 19880107
CA 1284759 C 19910611
EP 251493 B 19910717
DE 3771403 G 19910822
Saw chain cutting link - has depth control projections to control cut and
avoid interference during sharpening
Inventor: PETROVICH M V
US 4625610 A 19861202
DE 3637134 A 19870507
GB 2182281 A 19870513
GB 2182281 B 19891004
CA 1280054 C 19910212
Primer compsn. for small arms ammunition - comprises non-metallic
percussion sensitive explosive, fuel source and manganese dioxide and opt.
sec. explosives, oxidisers and binders
Inventor: BJERKE R K; ELLS D O; KRAMPEN A A; WARD J P
GB 2167057 A 19860521
FR 2573066 A 19860516
US 4608102 A 19860826
DE 3616004 A 19871119
GB 2167057 B 19880810
IT 1182983 B 19871005
DE 3616004 C2 19950427
Chain saw drive wheel - has recesses for drive links with widened portion
between successive link pairs to clear cuttings from recesses
Inventor: REYNOLDS M J
DE 3418030 A 19850110
GB 2142409 A 19850116
SE 8403356 A 19841228
BR 8401972 A 19850319
US 4530679 A 19850723
CA 1202232 A 19860325
GB 2142409 B 19870311
SE 456147 B 19880912
DE 3418030 C2 19950803
Saw chain drive sprocket - has pockets for chain drive tangs with radial
bores for clearing debris
Inventor: REYNOLDS M J
GB 2100668 A 19830106
DE 3224863 A 19830120
SE 8204057 A 19830207
BR 8203782 A 19830621
CA 1170859 A 19840717
GB 2100668 B 19850411
SE 451811 B 19871102
DE 3224863 C 19920326
Sharpening attachment for chain saw - comprises housing bolted to nose of
chain bar and containing abrasive strips for tops and sides of teeth
Inventor: GIBSON D M; SCOTT L A
GB 2093743 A 19820908
SE 8201095 A 19820927
DE 3225098 A 19840105
FR 2529494 A 19840106
GB 2093743 B 19850103
CA 1204286 A 19860513
SE 8603025 A 19860707
CA 1219448 A 19870324
SE 450628 B 19870713
IT 1154293 B 19870121
DE 3225098 C 19911205
Grain dryer with heat exchange assembly - has housing and vertical granular
material conduit
Inventor: EIKERMAN H H; NAYLOR J L
US 4341516 A 19820727
Link for chain saw - has teeth shaped to be machine ground without need for
hand sharpening
Inventor: GIBSON D M; SCOTT L A
DE 3017519 A 19801113
BR 8002735 A 19801215
SE 8003434 A 19801207
CA 1119078 A 19820302
CH 638130 A 19830915
DE 3051108 A 19880204
DE 3017519 C 19920109
DIXON INDUSTRIES INC. - PATENTS
Operator-manipulated drive control mechanism for self-propelled, walk-
behind traction mower
Inventor: EISENBART R J; SPLITTSTOESSER C D
US 5915487 A 19990629
Automatic tensioner used with drive train of self-propelled mower for
drivingly connecting wheel to mower transmission - includes tensioning
mechanism and anti-slackening assembly with elongated take-up rod pivotally
coupled with idler arm
Inventor: CROCKETT B C; EISENBART R J; SPLITTSTOESSER C D
US 5569106 A 19961029
Variable speed friction drive device for lawn mower - includes pair of
drive cones supported by frame, and pair of drums supported by carriages
for rotation about axes transverse to lengths of carriages
Inventor: CROSBY D P; FUNK L S; PARK D G; SPLITTSTOESSER C D
US 5496226 A 19960305
Resilient rod coupling for friction drive - has elongate connector body
with offset bore to receive resilient rod
Inventor: SPLITTSTOE C D
US 4625586 A 19861202
D/RIDING LAWN MOWERInventors: Crosby Donald P (US); Splittstoesser Clair R
(US)
US D359740 19950627
D/RIDING LAWN MOWERInventors: Splittstoesser Clair D (US)
US D311742 19901030
FREDERICK MANUFACTURING - PATENTS
Variable speed drive transmission - has cone rotating in contact with
curved track
Inventor: FRANCIS J H; VANDERLIND R E
US 4682517 A 19870728
Conical drive for transmission - has input and output shafts aligned with
conical drive rolls
Inventor: FRANCIS J H; VANDERLIND R E
US 4644810 A 19870224
EP 263201 A 19880413
Cone-type rolling wobble press - has cone rolling on planar surface with
relative disposition such as to prevent slippage under normal use
Inventor: FRANCIS J H
US 4459840 A 19840717
Infinitely variable transmission e.g. for vehicle - comprises composite
angle cone connected to input shaft via crank and rotating about oblique
axis
Inventor: FRANCIS J H
EP 107388 A 19840502
US 4515028 A 19850507
US 4599910 A 19860715
Periodic lubricating appts. for conveyor chains - has chain with metal lugs
traveling past magnetic detector providing signal to energise solenoid
valves to dispense lubricant
Inventor: FITZMAURIC J P
EP 49598 A 19820414
FEDERAL CARTRIDGE COMPANY - PATENTS
FORMING NON-TOXIC FRANGIBLE BULLET CORE
Inventor: HALLIS J M; PROULX R W
US 5894645 A 19990420
A one-piece shot cup for use with hard shot includes circumferentially
spaced shield members - that protect the bore of the gun barrel from damage
Inventor: ALKHATIB Y F; RIEDEL J H; RUBATT J J
US 5874689 A 19990223
CA 2239632 A 19981202
Biodegradable injection molded articles, especially shot shell components -
manufactured from polycaprolactone surface coated with fatty acid amide and
vegetable oil
Inventor: LONGREN D C; SHAHID M
US 5859090 A 19990112
Photodegradable, injection-moulded, high-strength plastic shot-shell
component - comprising linear polyethylene having low melt index and
ethylene-vinyl acetate-carbon monoxide terpolymer in sufficient amount to
render linear polyethylene photodegradable
Inventor: SHAHID MUS 5795923 A 19980818
Lead free centrefire primer composition for small arms centrefire
cartridges - contains cupric azide primary explosive, secondary explosive,
oxidiser, fuel, frictionator and tetracene
Inventor: ERICKSON J A; MELBERG J M
WO 9828244 A2 19980702
AU 9865325 A 19980717
Lead free centre fire cartridge primer with no serious toxic effects when
fired - which uses barium nitrate oxidiser, has excellent propellant
igniting qualities providing substantially better velocity and pressure
results
Inventor: ERICKSON J A
WO 9825869 A1 19980618
AU 9860122 A 19980703
US 5831208 A 19981103
Non-toxic, lead-free, rim-fire primer compsn. for small arms - comprising
cupric azide, tetracene, nitrocellulose, glass particles and a gum binder.
Inventor: ERICKSON J A; HALLIS J M; KRAMER R L; MELBERG J M
US 5610367 A 19970311
WO 9712845 A1 19970410
AU 9675145 A 19970428
NO 9801568 A 19980406
EP 869934 A1 19981014
NZ 321740 A 19981125
Highly frangible training round bullet - comprises slug made of fragments
of non toxic metal swaged under pressure which fragment on hitting target
Inventor: HALLIS J M; PROULX R W
WO 9706401 A2 19970220
AU 9667152 A 19970305
WO 9706401 A3 19970410
US 5679920 A 19971021
EP 842389 A2 19980520
TW 326491 A 19980211
US 5852858 A 19981229
Non-toxic primer compsn. used in small arms cartridges - comprises
propellant, percussion sensitive diazo, triazole and tetrazole cpds.,
calcium silicide and fine glass particles
Inventor: ERICKSON J A; HALLIS J M; KRAMER R L
US 5547528 A 19960820
WO 9638397 A2 19961205
WO 9638397 A3 19970109
AU 9671032 A 19961218
NO 9705389 A 19980122
EP 828698 A2 19980318
Non-toxic bullet - has zinc slug which may be jacketed or non-jacketed and
adapted to perform as frangible or non-frangible bullet
Inventor: HALLIS J M
WO 9623193 A1 19960801
AU 9525900 A 19960814
FI 9703119 A 19970725
EP 805945 A1 19971112
BR 9510199 A 19971223
AU 693557 B 19980702
KR 98701776 A 19980625
Non-toxic primer for centre-fire cartridges for indoor use - comprising a
propellant, at least percussion sensitive cpds. and calcium silicide as a
moderator
Inventor: ERICKSON J A; HALLIS J M; KRAMER R L
US 5466315 A 19951114
WO 9607625 A1 19960314
AU 9531297 A 19960327
Match performance 0.22 calibre cartridge having enhanced accuracy - uses
synthetic lubricant coating to reduce lock-time and drag on the bullet
during aerodynamic flight
Inventor: CALLAHAN S F; JOHNSON D N; LAMBERTY B R
WO 9508747 A1 19950330
AU 9476382 A 19950410
US 5490463 A 19960213
Sabot bullet for shotgun shell - has centrally constructed body and
segments providing forward end guidance for accuracy
Inventor: KRAMER R L; LONGREN D C; RUBATT J J
US 5175389 A 19921229
AU 9230426 A 19930708
JP 6082199 A 19940322
AU 649581 B 19940526
NZ 245540 A 19940927
JP 96014478 B2 19960214
KR 9616217 B1 19961207
12 Gauge buckshot shell - contains pellets in single pairs in superimposed
manner in slightly axially offset relationship
Inventor: REED H B
US 4679505 A 19870714
Process for covering munition priming chamber vents - has anvil extending
outwards with pointed end, and shaper, support and cover
Inventor: KENT S J; PROULX R W
BE 903500 A 19860217
DE 3536455 A 19860522
US 4590840 A 19860527
FR 2573197 A 19860516
DE 3536455 C 19870806
CA 1242611 A 19881004
IT 1182936 B 19871005
Single piece plastics shot shell casing - has section of dollop telescoped
into thickened walls of tube, then formed into integral thickened base
Inventor: DAVICH L J; ERICKSON J A; PROULX R W
US 4509428 A 19850409
One-piece shot-shell casing of biaxially orientated polymer - with uniform
sidewalls and integral base wad
Inventor: DAVICH L J; ERICKSON J A; PROULX R W; SCHMIDT D D; SORENSON D D
CA 1182687 A 19850219
IT 1170710 B 19870603
Fluid-tight sealed lay-in cable duct - has channel between covers carrying
connecting sealing plate which is moved upwards to cooperate with sealing
flange gaskets
Inventor: MUNICH T L; SEMMEL G K; YOUNG S J
US 4398564 A 19830816
CA 1188638 A 19850611
Cartridge cases of partially reformed oriented thermoplastic tubing - with
a percussion flange strengthened by residual orientation
Inventor: DAVICH L J; ERICKSON J A; PROULX R W; SCHMIDT D D; SORENSON D D
BE 887321 A 19810514
GB 2069400 A 19810826
FR 2475209 A 19810807
US 4332766 A 19820601
JP 57129400 A 19820811
BR 8100545 A 19820928
DE 3102830 A 19821014
GB 2069400 B 19830706
US 4481885 A 19841113
CA 1177691 A 19841113
CA 1178121 A 19841120
US 4514352 A 19850430
DE 3102830 C 19870122
JP 89004120 B 19890124
Easily replaceable junction enclosure assembly - has junction mounting
panel mounted on rails and contg. hot-stick interengaging element securing
panel to rails
Inventor: HOFFMANN H W; POSTHUMA K A
US 4246436 A 19810120
Sealed lay-in conduit duct - uses U-shaped collar to connect adjacent end
portions of several trough or duct sections of sheet metal
Inventor: BRECKENRID J R; FRAYSTEH R D; SIECKERT E W
CA 1067428 A 19791204
Sealed lay-in conduit duct - has hinged covers and U-shaped sealing collars
bridging joints of adjacent duct sections
Inventor: BRECKENRID J R; FRAYSETH R D; SIECKERT E W
US 4077434 A 19780307
Self-retaining reload capsule for shotgun shells - has positive anchor to
insure fired reload capsule remains attached to head during firing
CA 964524 A 19750318
Wad column - with adjustable spacing member
US 3788224 A 19740129
Shotgun shell wad - with molded polyethylene members
US 3662683 A
CA 931818 A
Gun cartridge holder
US 3616976 A
CA 941338 A 19740205
Plastic shot shell
US 3611938 A
Plastic shot shell case
CA 860034 A
Obturator wads for shotgun cartridges
GB 1195282 A
CA 865969 A
Wad column in shotgun cartridges
GB 1195281 A
CA 865969 A
Plastics-shot sheel case having a crimped end closure
US 3349459 A
Polyolefin shell tube formed by molding and stretching
US 3284560 A
GB 1058362 A
Support die for a polyolefin tube in the expanding
US 3478390 A
CA 860832 A
SIMMONS OUTDOOR CORPORATION - PATENTS
Spotting scope with alignment viewer - has optical viewer lens within
finder body to provide optical axis in alignment with scope axis
Inventor: MISE M
US 4669833 A 19870602
D/SPOTTING SCOPE
Inventors: MISE MINORU (JP)
US D288210 19870210
CTR MANUFACTURING - PATENT
Slog cutting apparatus - has device removably attaching linking support
frame member to first and second support frame members for disassembly and
transport of support frame
Inventor: JOHNSON C S
US 5724876 A 19980310
Log cutting device - has U-shaped base with spaced arms defining cutting
area for receiving tree to be cut
Inventor: JOHNSON C S
US 5103881 A 19920414
Transportable work machine - has stabiliser leg with selectively operable
auxiliary chain saw
Inventor: JOHNSON C S
US 5086684 A 19920211
Tree felling device - has U-shaped base with lateral spaced cams defining
cutting area with movable chain saw cutting mechanism and tension adjuster
Inventor: JOHNSON C S
US 4958670 A 19900925
Tree felling machine - has U-shaped base with pivotally mounted chain saw
support
Inventor: JOHNSON C S
US 4763705 A 19880816
BLOUNT INTERNATIONAL, INC. - COPYRIGHTS
Doing it my way / by Winton M. "Red" Blount with Richard Blodgett.
REGISTRATION NUMBER: TX4374970
DATE REGISTERED: September 19, 1996 (19960919)
S. T. E. P. pipefitter training manual.
REGISTRATION NUMBER: TX1481289
DATE REGISTERED: December 24, 1984 (19841224)
S. T. E. P. millwright training manual.
REGISTRATION NUMBER: TX1481288
DATE REGISTERED: December 24, 1984 (19841224)
S. T. E. P. welder training manual.
STATUS: Registered
REGISTRATION NUMBER: TX1481287
S. T. E. P. structural ironworker manual.
REGISTRATION NUMBER: TX1481286
DATE REGISTERED: December 24, 1984 (19841224)
S. T. E. P. boilermaker training manual.
REGISTRATION NUMBER: TX1481285
DATE REGISTERED: December 24, 1984 (19841224)
DIXON INDUSTRIES - COPYRIGHTS
Dixon--because there's more to mowing than meets the eye.
REGISTRATION NUMBER: TX2917487
DATE REGISTERED: September 04, 1990 (19900904)
Because there's more to mowing.
REGISTRATION NUMBER: TX2915439
DATE REGISTERED: September 04, 1990 (19900904)
FREDERICK MANUFACTURING - COPYRIGHTS
Silver Streak outdoor power equipment replacement parts: [catalog].
REGISTRATION NUMBER: TX593450
Registered: December 08, 1980 (19801208)
Silver Streak engine parts: [catalog].
REGISTRATION NUMBER: TX593449
Registered: December 08, 1980 (19801208).
FEDERAL CARTRIDGE COMPANY - COPYRIGHTS
No titles given for all works of Federal Cartridge Corporation, including
its catalogs. Collateral patent, trademark, copyright, and license
assignment. PARTY OF THE FIRST: Federal Cartridge
Corporation
PARTY OF THE SECOND: First National Bank of Minneapolis & the
First National Bank of Boston.
DOC TYPE: Assignment of Copyright
DATE(s) OF EXECUTION: as of December 01, 1985; December 06,
1985 DATE RECORDED: December 26, 1985
MICROFILM: V002159 P147
CTR MANUFACTURING - COPYRIGHTS
314/418 delimber & topping saw : owners manual.
REGISTRATION NUMBER: TX3567506
DATE REGISTERED: May 24, 1993 (19930524)
BLOUNT, INC. - TRADEMARKS - UNITED KINGDOM:
CCI
GOODS/SERVICES: FIREARMS; AMMUNITION; PRIMERS.
REGISTRATION NUMBER: 2017811
OREGON and Design
GOODS/SERVICES: CLASS 7: POWER OPERATED MACHINES AND DEVICES
INCLUDING LAWN TRIMMERS, SHREDDING MACHINES AND CHIPPERS,
AND STUMP GRINDERS, PRIMERS; GREASE GUNS; CUTTING CHAINS AND
ROTARY CUTTING BLADES; POWEROPERATED CHAIN SHARPENING
DEVICES AND SAW CHAIN GRINDERS; PARTS AND FITTINGS FOR THE
AFORESAID GOODS; SPROCKETS, GUIDE BARS, FILES, FILE HANDLES,
BAR COVERS AND WEDGES AS ACCESSORIES FOR CHAIN SAWS AND
POWER-OPERATED MACHINES AND DEVICES. CLASS 8: HAND TOOLS,
GREASE GUNS, AXES, MAULS, CHISELS, CUTTING BARS, FILES,
GOUGERS, HATCHETS, HAMMERS, MAULS AND PRUNING SAWS. CLASS 9:
PROTECTIVE HEADGEAR, EYE PROTECTORS, EARMUFFS.
REGISTRATION NUMBER: 2001169
APPLICATION DATE: 31 October 1994 (October 31, 1994)
CLEAN FIRE
GOODS/SERVICES: AMMUNITION; PRIMERS; ALL INCLUDED IN CLASS 13.
REGISTRATION NUMBER: B1528501
APPLICATION DATE: 25 February 1993 (February 25, 1993)
WOODZIG
GOODS/SERVICES: POWER OPERATED PRUNING SAWS; ALL INCLUDED IN
CLASS 7.
REGISTRATION NUMBER: 1508733
APPLICATION DATE: 04 August 1992 (August 4, 1992)
TRAK LOK O OMARK and Design
GOODS/SERVICES: RIVETS AND FASTENERS INCLUDED IN CLASS 6, ALL
MADE OF METAL AND FOR USE WITH WELDING MACHINES OR WITH
ELECTRIC WELDING APPARATUS.
REGISTRATION NUMBER: B1120878
APPLICATION DATE: 18 September 1979 (September 18, 1979)
WOOD GRENADE
GOODS/SERVICES: HAND TOOLS ADAPTED FOR USE IN SPLITTING WOOD,
REGISTRATION NUMBER: 1118586
APPLICATION DATE: 02 August 1979 (August 2, 1979)
POWERSHARR
GOODS/SERVICES: SHARPENING DEVICES INSTALLED UPON CHAIN SAWS
FOR SHARPENING SAW CHAIN WHILE IN MOTION UPON A CHAIN SAW
SPROCKET AND SAW BAR.
REGISTRATION NUMBER: B909722
APPLICATION DATE: 22 May 1967 (May 22, 1967)
STARLINE
GOODS/SERVICES: PLASTIC CUTTING LINES FOR USE IN APPARATUS FOR
CUTTING GRASS OR WEEDS; ALL INCLUDED IN CLASS 20.
REGISTRATION NUMBER: B1390597
APPLICATION DATE: 21 July 1989 (July 21, 1989)
REDFIELD
GOODS/SERVICES: (1) Sighting devices, namely both iron and
telescopic rifle sights, spotting telescopes; mounts, and
clamps therefor. (2) Rifle scopes, rifle sights, spotting
scopes, scope and sight mounts and adapters, reticles, lens
covers, tripods and bipods, carrying cases, adjusting
screws, slot blanks, sighting discs, tap and drill sets,
sight bases, variable diopters and parallax control devices.
APP. NO.: 0361,404
REG. NO.: TMA201,001 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 9, 1974
FILED: February 13, 1973
BLOUNT, INC. - TRADEMARKS - U.S. FEDERAL
MICRO CHISEL
GOODS/SERVICES: SAW CHAIN FOR CHAIN SAWS
SERIAL NO.: 72-390,294
REG. NO.: 944,029
REGISTERED: October 3, 1972
FIRST USE: January 15, 1971 (U.S. Class 23)
BLOUNT, INC. - TRADEMARKS - SPAIN
CLEAN-FIRE
GOODS/SERVICES: MUNICIONES; DETONANTES.
APPLICATION NUMBER: 1755674 M
REGISTERED: 05 Febrero 1996 (February 5, 1996)
OREGON
GOODS/SERVICES: CADENAS DENTADAS, BARRAS, DIENTES Y PARTES DE
MOTOSIERRAS, QUE SON HERRAMIENTAS ACCIONADAS POR MOTOR.
APPLICATION NUMBER: 885661 M
REGISTERED: 05 Marzo 1979 (March 5, 1979)
SPEER
GOODS/SERVICES: BALAS Y CARTUCHOS.
APPLICATION NUMBER: 822430 M
REGISTERED: 17 Junio 1978 (June 17, 1978)
WOOD GRENADE
GOODS/SERVICES: HERRAMIENTAS E INSTRUMENTOS MANUALES;
CUCHILLERIA, TENEDORES Y CUCHARAS; ARMAS BLANCAS.
APPLICATION NUMBER: 916416 M
REGISTERED: 05 Marzo 1980 (March 5, 1980)
CCI y diseno (and Design)
GOODS/SERVICES: ARMAS DE FUEGO; MUNICIONES Y PROYECTILES;
SUSTANCIAS EXPLOSIVAS; FUEGOS ARTIFICIALES.
APPLICATION NUMBER: 916250 M
REGISTERED: 05 Abril 1980 (April 5, 1980)
C.C.I.
GOODS/SERVICES: ARMAS DE FUEGO; MUNICIONES Y PROYECTILES;
SUSTANCIAS EXPLOSIVAS; FUEGOS ARTIFICIALES.
APPLICATION NUMBER: 794384 M
REGISTERED: 09 Diciembre 1977 (December 9, 1977)
O OMARK y diseno (and Design)
GOODS/SERVICES: APARATOS, INSTRUMENTOS Y DISPOSITIVOS DE
INSTALACIONES DE ALUMBRADO, DE CALEFACCION, DE PRODUCCION DE
VAPOR, DE COCCION, DE REFRIGERACION, DE SECADO, DE
VENTILACION, DE DISTRIBUCION DE AGUA E INSTALACIONES
SANITARIAS.
APPLICATION NUMBER: 653455 M
REGISTERED: 27 Febrero 1978 (February 27, 1978)
WEAVER y diseno (and Design)
GOODS/SERVICES: MIRAS DE PUNTERIA TELESCOPICAS PARA FUSILES Y
MONTURAS DE LAS MISMAS.
APPLICATION NUMBER: 631523 M
APPLICATION DATE: 19 Diciembre 1970 (December 19, 1970)
OMARK
GOODS/SERVICES: MAQUINARIA Y HERRAMIENTAS PARA LA
CONSTRUCCION, DISCOS DE DIAMANTE, ABRASIVOS PARA CORTE DE
MATERIALES DE CONSTRUCCION Y HORMIGONES Y CORONAS
PERFORADAS.
APPLICATION NUMBER: 521465 M
REGISTERED: 25 Abril 1969 (April 25, 1969)
BLOUNT, INC. - TRADEMARKS - FRANCE
SUPER GUARD
GOODS/SERVICES: MACHINES ET MACHINES-OUTILS; MOTEURS (EXCEPTE
POUR VEHICULES TERRESTRES); ACCOUPLEMENTS ET COURROIES DE
TRANSMISSION (EXCEPTE POUR VEHICULES TERRESTRES); GRANDS
INSTRUMENTS POUR L'AGRICULTURE; COUVEUSES. CHAINES DE SCIES
POUR SCIES A CHAINES.
APPLICATION NUMBER: 851373
REGISTRATION NUMBER: 1404061
PRENTICE
GOODS/SERVICES: MACHINES, MACHINES-OUTILS ET NOTAMMENT ENGINS
POUVANT ETRE MONTES SUR VEHICULE POUR LA MANUTENTION ET LE
CHARGEMENT DE PIECES LOURDES TELS QUE TRONCS D'ARBRES ET
CANALISATIONS, POUR ABATTRE ET SCIER LES ARBRES, MACHINES A
SCIER, ENGINS DE LEVAGE, GRUES, APPAREILS HYDRAULIQUES, ET
VEHICULES, NOTAMMENT CAMIONS ET TRACTEURS.
APPLICATION NUMBER: 952128
REGISTRATION NUMBER: 1527147
RENEWED: 05 Aout 1998 (August 5, 1998)
APPLICATION DATE: 02 Septembre 1988 (September 2, 1988)
STARLINE
GOODS/SERVICES: FILS A COUPER EN MATIERE PLASTIQUE POUR
UTILISATION DANS DES EQUIPEMENTS POUR COUPER LE GAZON ET LES
MAUVAISES HERBES.
APPLICATION NUMBER: 900964
REGISTRATION NUMBER: 1495036
RENEWED: 15 Janvier 1998 (January 15, 1998)
OREGON
GOODS/SERVICES: MACHINES ET MACHINES-OUTILS; MOTEURS (A
L'EXCEPTION DES MOTEURS POUR VEHICULES TERRESTRES);
ACCOUPLEMENTS ET COURROIES DE TRANSMISSION (A L'EXCEPTION DE
CEUX POUR VEHICULES TERRESTRES); SCIES, SCIES A DENTS
ARTICULEES ET PIECES DETACHEES ET PARTIES CONSTITUTIVES POUR
SCIES. INSTRUMENTS AGRICOLES; COUVEUSES POUR LES OEUFS;
OUTILS ET INSTRUMENTS A MAIN, COUTELLERIE, FOURCHETTES ET
CUILLERS, ARMES BLANCHES, RASOIRS.
APPLICATION NUMBER: 949893
REGISTRATION NUMBER: 1484522
RENEWED: 05 Aout 1998 (August 5, 1998)
APPLICATION DATE: 22 Aout 1988 (August 22, 1988)
BLOUNT, INC. - TRADEMARKS - BENELUX
SUPER GUARD
APPLICATION NUMBER: 934907
APPLICATION DATE: 22 March 1999 (March 22, 1999)
STARLINE
GOODS/SERVICES: CL 22 FILS TRANCHANTS EN MATIERE PLASTIQUE
UTILISES EN RELATION AVEC DES EQUIPEMENTS DESTINES A COUPER
L'HERBE ET LE GAZON.
APPLICATION NUMBER: 710864
REGISTRATION NUMBER: 443671
RENEWED: 12 January 1998 (January 12, 1998)
SPEER
GOODS/SERVICES: CL 13 CARTOUCHES COMPRISES DANS CETTE CLASSE.
APPLICATION NUMBER: 614717
REGISTRATION NUMBER: 341515
RENEWED: 22 April 1996 (April 22, 1996)
WEAVER and Design
GOODS/SERVICES: CL 9,13 VISEURS TELESCOPIQUES POUR ARMES A FEU
ET LEURS MONTURES.
APPLICATION NUMBER: 9615
REGISTRATION NUMBER: 56511
RENEWED: 23 February 1990 (February 23, 1990)
BLOUNT, INC. - TRADEMARKS - DENMARK
O CCI og Figur (and Design)
GOODS/SERVICES: KLASSE 13: KUGLER OG AMMUNITION TIL RIFLER OG
HAANDVAABEN.
APPLICATION NUMBER: VA 3627 1975
REGISTRATION NUMBER: VR 1680 1977
REGISTERED: 05 Maj 1977 (May 5, 1977)
BLOUNT, INC. - TRADEMARKS - SWITZERLAND
SUPER GUARD
APPLICATION NUMBER: 2523
APPLICATION DATE: 22 March 1999 (March 22, 1999)
CCI
APPLICATION NUMBER: 9047
REGISTRATION NUMBER: 434268
APPLICATION DATE: 14 July 1995 (July 14, 1995)
823 H
APPLICATION NUMBER: 7490
REGISTRATION NUMBER: 429060
APPLICATION DATE: 09 May 1995 (May 9, 1995)
OREGON and Design
APPLICATION NUMBER: 9030
REGISTRATION NUMBER: 428147
APPLICATION DATE: 20 December 1994 (December 20, 1994)
CCI
APPLICATION NUMBER: 9047
APPLICATION DATE: 14 July 1995 (July 14, 1995)
H
APPLICATION NUMBER: 7490
APPLICATION DATE: 09 May 1995 (May 9, 1995)
OREGON and Design
APPLICATION NUMBER: 9030
APPLICATION DATE: 20 December 1994 (December 20, 1994)
BLOUNT, INC. - TRADEMARKS - GERMANY
CCI
GOODS/SERVICES: 13: MUNITION FUR FEUERWAFFEN.
APPLICATION NUMBER: .9 38066
REGISTRATION NUMBER: 39538066
REGISTERED: 20 Juni 1996 (June 20, 1996)
823H
GOODS/SERVICES: 07: MASCHINELL BETRIEBENE SAGEN.
APPLICATION NUMBER: .2 18963
REGISTRATION NUMBER: 39518963
REGISTERED: 12 Maerz 1996 (March 12, 1996)
WEAVER und Bild (and Design)
GOODS/SERVICES: ZIELFERNROHRE UND BUEGEL, HALTER UND TRAEGER
AUS METALL SOWIE DEREN KOMBINATIONEN ZUR BEFESTIGUNG EINES
ZIELFERNROHRES AUF HANDFEUERWAFFEN.
APPLICATION NUMBER: W 22449
REGISTRATION NUMBER: 885023
REGISTERED: 01 September 1971 (September 1, 1971)
PRENTICE
GOODS/SERVICES: MASCHINEN SOWIE DEREN TEILE, INSBESONDERE
HYDRAULISCHE VERLADEMASCHINEN UND -GERAETE, FUER
FORSTWIRTSCHAFTLICHE ZWECKE.
APPLICATION NUMBER: O 09874
REGISTRATION NUMBER: 1007228
REGISTERED: 04 September 1980 (September 4, 1980)
BLOUNT, INC. - TRADEMARKS - ITALY
STARLINE
GOODS/SERVICES: 22 FILI PLASTICI PER APPARECCHIATURE PER IL
TAGLIO DI ERBA E ERBACCE.
APPLICATION NUMBER: 98 245 MILANO
APPLICATION DATE: 14 Gennaio 1998 (January 14, 1998)
SUPER GUARD
GOODS/SERVICES: 07. PRODOTTI NON SPECIFICATI SUL VERBALE
APPLICATION NUMBER: 97 2550 ROMA-UFFI-CENT.B
APPLICATION DATE: 26 Maggio 1997 (May 26, 1997)
SURE SHARP
GOODS/SERVICES: GUIDE PER LIMARE CATENE DI SEGA
APPLICATION NUMBER: 96 3756 ROMA-UFFI-CENT.B
APPLICATION DATE: 23 Agosto 1996 (August 23, 1996)
SPEER
GOODS/SERVICES: ARMI DA FUOCO; MUNIZIONI E PROIETTILI;
ESPLOSIVI; FUOCHI D'ARTIFICIO
APPLICATION NUMBER: 96 2613 ROMA-UFFI-CENT.B
APPLICATION DATE: 12 Giugno 1996 (June 12, 1996)
SPEER
INTL CLASS: 13 (Armi da fuoco/Firearms)
STATUS: Deposito (Application) (Pending)
GOODS/SERVICES: 13 TUTTA LA CLASSE.
APPLICATION NUMBER: 96 2590 ROMA-UFFI-CENT.B
APPLICATION DATE: 10 Giugno 1996 (June 10, 1996)
OREGON
GOODS/SERVICES: CATENE A TAGLIENTI, BARRE, ROCCHETTI E PARTI
PER SEGHE A MOTORE CHE SONO UTENSILI MOTORIZZATI.
APPLICATION NUMBER: 95 4009 ROMA-UFFI-CENT.B
REGISTRATION NUMBER: 719653
REGISTERED: 23 Luglio 1997 (July 23, 1997)
APPLICATION DATE: 30 Agosto 1995 (August 30, 1995)
C.C.I.
GOODS/SERVICES: ARMI DA FUOCO, MUNIZIONI E PROIETTILI,
SOSTANZE ESPLOSIVE, FUOCHI D'ARTIFICIO
APPLICATION NUMBER: 95 2877 ROMA-UFFI-CENT.B
REGISTRATION NUMBER: 714635
REGISTERED: 18 Giugno 1997 (June 18, 1997)
823 H
GOODS/SERVICES: 07 "SEGHE A MOTORE".
APPLICATION NUMBER: 95 2310 ROMA-UFFI-CENT.B
REGISTRATION NUMBER: 714157
REGISTERED: 16 Giugno 1997 (June 16, 1997)
O OMARK INDUSTRIES
GOODS/SERVICES: CL. 06 TUTTA PIU SPINE DI FISSAGGIO E
RIBATTINI; CL. 07 TUTTA LA CLASSE PIU CATENE TAGLIATRICI,
BARRE, PIGNONI E PARTI PER SEGHE A MOTORE; APPARECCHIATURE A
MOTORE E IDRAULICHE PER CARICARE TRONCHI, RACCOGLIERE
ALBERI; GRU, TRAVI, APPARECCHIATURE E UTENSILI DI FISSAGGIO
PNEUMATICI E AZIONATI A MARTELLO AD INTRODUZIONE FORZATA;
LAME E PUNTE TAGLIENTI PER UTENSILI A MOTORE; MACCHINE
SALDATRICI, APPARECCHIATURE ED UTENSILI AZIONATI A MOTORE
PER SEGARE, ABRADERE, TRAPANARE E RIBADIRE; VALVOLE AD ARIA
COMPRESSA; COMANDI PER MOTORI E SISTEMI DI COMANDO; PARTI ED
ACCESSORI PER I SUDDETTI PRODOTTI. CL. 08 TUTTA LA CLASSE
PIU LAME DA TAGLIO, PUNTE DA TRAPANO, UTENSILI DI FISSAGGIO,
ABRASIONE E TAGLIO; CL. 09 TUTTA LA CLASSE PIU
APPARECCHIATURE DI SALDATURA E PARTI ACCESSORIE; CL. 11
TUTTA LA CLASSE. CL. 12 TUTTA LA CLASSE PIU FRENI AD ARIA
COMPRESSA, COMANDI DI TRASMISSIONE ED APPARECCHI DI CAMBIO
AD ARIA COMPRESSA, RITARDATORI DI FRENI A COMPRESSIONE,
COMANDI PER MOTORI; APPARECCHIATURE E PARTI MONTATE SU
VEICOLI PER RACCOGLIERE, CARICARE ED AFFERRARE ALBERI; CL.
13 TUTTA LA CLASSE PIU INNESCHI, APPARECCHI E PARTI DI
FISSAGGIO E DI FIBADITURA AZIONATI AD ESPLOSIONE.
APPLICATION NUMBER: 91 3287 ROMA-UFFI-CENT.B
REGISTRATION NUMBER: 613896
REGISTERED: 30 Dicembre 1993 (December 30, 1993)
GEAR PRODUCTS, INC. - TRADEMARKS - U.S. FEDERAL
DESIGN ONLY
GOODS/SERVICES: RING GEARS, BEARINGS, ROTATIONAL DRIVE SYSTEMS,
WINCHES AND PUMP DRIVES
SERIAL NO.: 75-480,198
FIRST USE: September 15, 1997 (Intl Class 7)
G and Design
GOODS/SERVICES: (INT. CL. 7) GEAR SYSTEMS, AND PARTS THEREFOR,
NAMELY PLANETARY SWING DRIVES, SPUR AND WORM GEAR SPEED
REDUCERS, ROTATION BEARINGS, PLANETARY WINCHES, WORM GEAR
WINCH ASSEMBLIES, HYDRAULIC PUMP DRIVES, AND HYDRAULIC MOTOR
SHAFT BRAKES NOT FOR USE IN LAND VEHICLES (INT. CL. 12) GEAR
SYSTEMS, AND PARTS THEREFOR FOR USE ON LAND AND WATER
VEHICLES, NAMELY GEAR DIGGERS, HYDRAULIC PUMP DRIVES,
CAPSTAN DRIVES, AND HYDRAULIC MOTOR SHAFT BRAKES FOR LAND
VEHICLES
SERIAL NO.: 73-825,563
REG. NO.: 1,624,458
REGISTERED: November 27, 1990
DIXON INDUSTRIES, INC. - TRADEMARKS - CANADA
ZTR
GOODS/SERVICES: (1) Lawnmowers.
APP. NO.: 0648,827
REG. NO.: TMA380,550 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: February 22, 1991
DIXON
GOODS/SERVICES: (1) Lawnmowers.
APP. NO.: 0648,826
REG. NO.: TMA394,678 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: February 28, 1992
DIXON INDUSTRIES, INC. - TRADEMARKS - U.S. FEDERAL
DIXON ESTATE
GOODS/SERVICES: LAWNMOWERS
SERIAL NO.: 75-317,372
FILED: June 30, 1997
HG HYDRO-GEAR
GOODS/SERVICES: LAWN MOWERS
SERIAL NO.: 74-026,566
REG. NO.: 1,617,343
REGISTERED: October 16, 1990
BLUE LINE
GOODS/SERVICES: FINANCIAL SERVICES, NAMELY, PROVIDING CREDIT TO
CUSTOMERS OF LAWN MOWER DEALERS
SERIAL NO.: 73-836,003
REG. NO.: 1,604,039
REGISTERED: June 26, 1990
DIXON
GOODS/SERVICES: LAWNMOWERS
SERIAL NO.: 73-779,687
REG. NO.: 1,555,507
REGISTERED: September 12, 1989
SPECTRUM
GOODS/SERVICES: SPAS IN THE NATURE OF HEATED POOLS
SERIAL NO.: 73-675,165
REG. NO.: 1,519,707
REGISTERED: January 10, 1989
HORIZON
GOODS/SERVICES: SPAS IN THE NATURE OF HEATED POOLS
SERIAL NO.: 73-675,127
REG. NO.: 1,519,706
REGISTERED: January 10, 1989
CALIFORNIA COOPERAGE
GOODS/SERVICES: HOT TUBS IN THE NATURE OF HEATED POOLS
SERIAL NO.: 73-662,181
REG. NO.: 1,505,721
REGISTERED: September 27, 1988
CONVERTIBLE
GOODS/SERVICES: FURNACES
SERIAL NO.: 73-662,180
REG. NO.: 1,503,462
REGISTERED: September 6, 1988
RANGING
GOODS/SERVICES: BINOCULARS AND OPTICAL RANGEFINDERS
SERIAL NO.: 73-643,962
REG. NO.: 1,480,570
REGISTERED: March 15, 1988
COLEMAN and Design
GOODS/SERVICES: (INT. CL. 25) JACKETS, < PARKAS, VESTS, SHELLS,
RAINSUITS, > PULLOVERS, < PANTS, SOCKS, > SHOES, BOOTS,
HIKING BOOTS, MOCCASINS, < HOSIERY, HATS, SKI CAPS, BASEBALL
CAPS, > SWEATERS, < SWIMSUITS, GLOVES, T-SHIRTS, >
SWEATSHIRTS < , SWEATPANTS, SHORTS, WARMUP SUITS, WIND-
RESISTANT JACKETS, AND SCARVES > (INT. CL. 26) < EMBROIDERED
EMBLEMS AND > BELT BUCKLES
SERIAL NO.: 73-639,490
REG. NO.: 1,497,802
REGISTERED: July 26, 1988
S and Design
GOODS/SERVICES: (INT. CL. 9) LIFE VESTS (INT. CL. 25) CLOTHING,
NAMELY, JACKETS, CAPS, SWEATERS, SHIRTS, AND SHORTS
SERIAL NO.: 73-622,717
REG. NO.: 1,463,339
REGISTERED: November 3, 1987
SKEETER
GOODS/SERVICES: (INT. CL. 3) BOAT POLISH AND CLEANER (INT. CL.
6) METAL KEY CHAINS (INT. CL. 12) BASS BOATS (INT. CL. 18)
TOTE BAGS (INT. CL. 21) PORTABLE ICE CHESTS FOR FOOD AND
BEVERAGES (INT. CL. 25) JACKETS, WINDBREAKERS, SWEATERS,
CAPS, SCARVES
SERIAL NO.: 73-616,139
REG. NO.: 1,457,907
REGISTERED: September 22, 1987
COLEMAN
GOODS/SERVICES: OUTDOOR KNIVES, KNIFE SHARPENERS, LEATHER
SHEATHS FOR KNIVES, AND SETS COMPRISED OF STAINLESS STEEL
KNIFE, FORK AND SPOON
SERIAL NO.: 73-569,091
REG. NO.: 1,427,226
REGISTERED: February 3, 1987
MASTER CRAFT
GOODS/SERVICES: BOATS AND BOAT TRAILERS
SERIAL NO.: 73-559,907
REG. NO.: 1,427,389
REGISTERED: February 3, 1987
CHALLENGER
GOODS/SERVICES: SPORTING GUNS AND AMMUNITION THEREFOR
SERIAL NO.: 73-501,401
REG. NO.: 1,336,551
REGISTERED: May 21, 1985
O'BRIEN
GOODS/SERVICES: BOATS
SERIAL NO.: 73-498,357
REG. NO.: 1,371,212
REGISTERED: November 19, 1985
NEWPORT
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 73-441,308
REG. NO.: 1,290,909
REGISTERED: August 21, 1984
QUIGGLE-ATOR
GOODS/SERVICES: REFRIGERANT CHARGE COMPENSATOR WHICH
AUTOMATICALLY MAINTAINS PROPER REFRIGERANT CHARGE IN HEAT
PUMPS
SERIAL NO.: 73-421,717
REG. NO.: 1,310,848
REGISTERED: December 25, 1984
DIXON
GOODS/SERVICES: LAWNMOWERS
SERIAL NO.: 73-404,950
REG. NO.: 1,288,443
REGISTERED: July 31, 1984
O' Stylized Letters
GOODS/SERVICES: WATER SKIS, WATER SKI VESTS, AND TOW ROPES FOR
WATER SKIING
SERIAL NO.: 73-403,941
REG. NO.: 1,265,133
REGISTERED: January 24, 1984
DELUXE ENERGY SAVER
GOODS/SERVICES: AIR CONDITIONING UNITS INCLUDING A REFRIGERANT
COMPRESSOR, AN OUTSIDE CONDENSING COIL, AND AN EVAPORATOR
COIL
SERIAL NO.: 73-376,950
REG. NO.: 1,283,834
REGISTERED: June 26, 1984
INSUL
GOODS/SERVICES: SYNTHETIC FILLING MATERIAL FOR SLEEPING BAGS
SERIAL NO.: 73-355,377
REG. NO.: 1,244,520
REGISTERED: July 5, 1983
STEEL-BELTED
GOODS/SERVICES: INSULATED FOOD AND BEVERAGE COOLERS
SERIAL NO.: 73-354,238
REG. NO.: 1,260,551
REGISTERED: December 6, 1983
TSR Stylized Letters
GOODS/SERVICES: AIR CONDITIONERS FOR RECREATIONAL VEHICLES
SERIAL NO.: 73-346,400
REG. NO.: 1,242,708
REGISTERED: June 21, 1983
ROLL-TOP
GOODS/SERVICES: COVERS FOR HOT TUBS AND SPAS
SERIAL NO.: 73-343,261
REG. NO.: 1,279,725
REGISTERED: May 29, 1984
CALIFORNIA COOPERAGE and Design
GOODS/SERVICES: HOT TUBS AND SPAS IN THE NATURE OF HEATED
POOLS, AND PARTS THEREFOR
SERIAL NO.: 73-343,260
REG. NO.: 1,245,176
REGISTERED: July 12, 1983
SCANOE
GOODS/SERVICES: SQUARE STERN CANOES
SERIAL NO.: 73-316,823
REG. NO.: 1,194,283
REGISTERED: April 27, 1982
PRESIDENTIAL
GOODS/SERVICES: GAS AND ELECTRIC RESIDENTIAL WATER HEATERS
SERIAL NO.: 73-312,384
REG. NO.: 1,323,061
REGISTERED: March 5, 1985
BULLFROG
GOODS/SERVICES: WATER KNEE BOARDS
SERIAL NO.: 73-300,135
REG. NO.: 1,198,934
REGISTERED: June 22, 1982
SHENANDOAH
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 73-296,430
REG. NO.: 1,219,042
REGISTERED: December 7, 1982
SUN VALLEY
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 73-296,429
REG. NO.: 1,224,140
REGISTERED: January 18, 1983
WILLIAMSBURG
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 73-296,428
REG. NO.: 1,264,152
REGISTERED: January 17, 1984
SEQUOIA
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 73-296,425
REG. NO.: 1,216,606
REGISTERED: November 16, 1982
POWERMATE
GOODS/SERVICES: PORTABLE ELECTRIC POWER SUPPLY UNIT COMPRISING
AN INTERNAL COMBUSTION ENGINE AND GENERATOR
SERIAL NO.: 73-294,441
REG. NO.: 1,229,284
REGISTERED: March 8, 1983
DIAMONDCORE and Design
GOODS/SERVICES: BOATS
SERIAL NO.: 73-277,397
REG. NO.: 1,175,067
REGISTERED: October 27, 1981
ZEETER
GOODS/SERVICES: LAWN MOWERS
SERIAL NO.: 73-254,009
REG. NO.: 1,207,863
REGISTERED: September 14, 1982
COPPERHEAD
GOODS/SERVICES: AMMUNITION FOR AIR GUNS
SERIAL NO.: 73-252,573
REG. NO.: 1,163,642
REGISTERED: August 4, 1981
CLASSIC
GOODS/SERVICES: TENTS
SERIAL NO.: 73-250,154
REG. NO.: 1,163,781
REGISTERED: August 4, 1981
PATIOMATIC and Design
GOODS/SERVICES: HOUSE AWNINGS
SERIAL NO.: 73-243,214
REG. NO.: 1,171,318
REGISTERED: September 29, 1981
POWER SLOT and Design
GOODS/SERVICES: SKI BOATS
SERIAL NO.: 73-235,816
REG. NO.: 1,185,668
REGISTERED: January 12, 1982
PELLGUNOIL
GOODS/SERVICES: LUBRICATING OIL FOR BB AND PELLET GUNS
SERIAL NO.: 73-233,595
REG. NO.: 1,156,061
REGISTERED: June 2, 1981
WESTLOCK
GOODS/SERVICES: KNIVES, NAMELY, KNIVES WITH LOCKING BLADES
SERIAL NO.: 73-228,080
REG. NO.: 1,185,488
REGISTERED: January 12, 1982
MACH
GOODS/SERVICES: AIR CONDITIONERS FOR RECREATIONAL VEHICLES
SERIAL NO.: 73-225,849
REG. NO.: 1,147,999
REGISTERED: March 3, 1981
MASTER CRAFT and Design
GOODS/SERVICES: SKI BOATS
SERIAL NO.: 73-205,059
REG. NO.: 1,136,108
REGISTERED: May 27, 1980
COLEMAN
GOODS/SERVICES: DUFFEL BAGS FOR WATER SKIING; WATER SKI VESTS,
WATER SKI HATS, WATER SKI GLOVES, WATER SKI SOCKS, T-SHIRTS,
SWIMSUITS, WET SUITS, AND JACKETS; WATER SKIS, WATER SKI
CASES, WATER SKI BINDING PARTS, AND WATER SKI ROPES
SERIAL NO.: 73-199,045
REG. NO.: 1,142,565
REGISTERED: December 9, 1980
COLEMAN and Design
GOODS/SERVICES: DUFFEL BAGS FOR WATER SKIING; WATER SKI VESTS,
WATER SKI HATS, WATER SKI GLOVES, WATER SKI SOCKS, T-SHIRTS,
SWIMSUITS, WET SUITS, AND JACKETS; WATER SKIS, WATER SKI
CASES, WATER SKI BINDING PARTS, AND WATER SKI ROPES
SERIAL NO.: 73-199,043
REG. NO.: 1,142,564
REGISTERED: December 9, 1980
D.E.S.
GOODS/SERVICES: AIR CONDITIONERS
SERIAL NO.: 73-194,912
REG. NO.: 1,136,712
REGISTERED: June 3, 1980
INFLATE-ALL
GOODS/SERVICES: PORTABLE AIR COMPRESSORS
SERIAL NO.: 73-187,946
REG. NO.: 1,138,590
REGISTERED: August 12, 1980
RAM-FLX
GOODS/SERVICES: BACKPACK FRAMES
SERIAL NO.: 73-178,533
REG. NO.: 1,125,982
REGISTERED: October 16, 1979
PONY
GOODS/SERVICES: SELF-PROPELLED ROTARY TILLERS FOR USE IN
CULTIVATING GARDENS AND THE LIKE
SERIAL NO.: 73-163,871
REG. NO.: 1,104,656
REGISTERED: October 24, 1978
COLEMAN
GOODS/SERVICES: BOATS AND BOAT CARRIERS
SERIAL NO.: 73-153,490
REG. NO.: 1,097,378
REGISTERED: July 25, 1978
RAM X
GOODS/SERVICES: MOLDED PLASTIC COMPONENTS OF BOATS-NAMELY,
SEATS, END CAPS AND BULKHEADS
SERIAL NO.: 73-127,391
REG. NO.: 1,085,978
REGISTERED: February 21, 1978
CALIFORNIA COOPERAGE Stylized Letters
GOODS/SERVICES: REDWOOD TUBS FOR USE FOR HUMAN BATHING
PURPOSES, THERAPEUTIC PURPOSES OR AS HOT TUBS FOR HUMAN
ENJOYMENT
SERIAL NO.: 73-126,713
REG. NO.: 1,126,944
REGISTERED: November 20, 1979
CALIFORNIA COOPERAGE REDWOOD HOT TUBS SAN LUIS OBISPO and Design
GOODS/SERVICES: REDWOOD TUBS FOR USE FOR HUMAN BATHING
PURPOSES, THERAPEUTIC PURPOSES OR AS "HOT TUBS" FOR HUMAN
ENJOYMENT
SERIAL NO.: 73-126,704
REG. NO.: 1,124,061
REGISTERED: August 14, 1979
VERSA-TOP
GOODS/SERVICES: AUTOMOBILE BOAT CARRIER
SERIAL NO.: 73-119,373
REG. NO.: 1,078,868
REGISTERED: December 6, 1977
COLEMAN and Design
GOODS/SERVICES: BOATS AND BOAT CARRIERS
SERIAL NO.: 73-119,317
REG. NO.: 1,078,866
REGISTERED: December 6, 1977
OSCAR
GOODS/SERVICES: PICNIC COOLERS
SERIAL NO.: 73-115,576
REG. NO.: 1,074,587
REGISTERED: October 4, 1977
PEAK 1
GOODS/SERVICES: (INT. CL. 11) BACKPACK STOVES (INT. CL. 18)
BACKPACK FRAMES, PACKS, AND DAY SACKS (INT. CL. 20) BACKPACK
SLEEPING BAGS AND TENTS
SERIAL NO.: 73-109,625
REG. NO.: 1,087,247
REGISTERED: March 14, 1978
PEAK 1.
GOODS/SERVICES: (INT. CL. 18) BACKPACKS (INT. CL. 25) <
CLOTHING FOR MEN AND WOMEN-NAMELY, JACKETS, PARKAS AND VESTS
>
SERIAL NO.: 73-109,327
REG. NO.: 1,074,546
REGISTERED: October 4, 1977
WRANGLER
GOODS/SERVICES: BOATS
SERIAL NO.: 73-101,630
REG. NO.: 1,105,586
REGISTERED: November 7, 1978
CROSMAN and Design
GOODS/SERVICES: (INT. CL. 13) SPORTING GUNS AND AMMUNITION
(INT. CL. 28) SPORTING GUN TARGETS
SERIAL NO.: 73-043,022
REG. NO.: 1,032,209
REGISTERED: February 3, 1976
ZTR
GOODS/SERVICES: LAWNMOWERS
SERIAL NO.: 73-040,438
REG. NO.: 1,024,513
REGISTERED: November 11, 1975
COLEMAN and Design
GOODS/SERVICES: PORTABLE AIR COMPRESSORS
SERIAL NO.: 73-035,332
REG. NO.: 1,021,409
REGISTERED: September 30, 1975
COLEMAN
GOODS/SERVICES: PORTABLE AIR COMPRESSORS
SERIAL NO.: 73-035,331
REG. NO.: 1,021,408
REGISTERED: September 30, 1975
WORLD TEAM
GOODS/SERVICES: SPORTING GOODS-NAMELY, WATER SKIS AND WATER SKI
VESTS
SERIAL NO.: 73-034,536
REG. NO.: 1,068,197
REGISTERED: June 21, 1977
R and Design
GOODS/SERVICES: RANGE FINDERS
SERIAL NO.: 73-033,578
REG. NO.: 1,022,557
REGISTERED: October 14, 1975
O'BRIEN
GOODS/SERVICES: SPORTING GOODS-NAMELY, WATER SKIS, WATER SKI
VESTS AND TOW ROPES FOR WATER SKIING
SERIAL NO.: 73-029,785
REG. NO.: 1,019,479
REGISTERED: September 2, 1975
O'BRIEN
GOODS/SERVICES: JACKETS, T-SHIRTS, GLOVES, HATS AND SWIMMING
TRUNKS
SERIAL NO.: 73-029,685
REG. NO.: 1,011,062
REGISTERED: May 20, 1975
CROSMAN
GOODS/SERVICES: (U.S. CL. 9) SPORTING GUNS AND AMMUNITION (U.S.
CL. 22) SPORTING GUN TARGETS
SERIAL NO.: 72-431,821
REG. NO.: 975,285
REGISTERED: December 25, 1973
COLEMAN and Design
GOODS/SERVICES: PORTABLE ELECTRIC LANTERNS AND BATTERIES
SERIAL NO.: 72-431,536
REG. NO.: 993,702
REGISTERED: September 24, 1974
COLEMAN
GOODS/SERVICES: PORTABLE ELECTRIC LANTERNS AND BATTERIES
SERIAL NO.: 72-431,457
REG. NO.: 995,200
REGISTERED: October 8, 1974
BRANDYWINE
GOODS/SERVICES: CAMPING TRAILERS
SERIAL NO.: 72-421,167
REG. NO.: 946,678
REGISTERED: November 7, 1972
WESTERN
GOODS/SERVICES: (U.S. CL. 4) HONES (U.S. CL. 23) KNIVES, AXES,
SAWS, FILES, SHEATHS, AND HOLDERS THEREFOR
SERIAL NO.: 72-414,622
REG. NO.: 1,003,134
REGISTERED: January 28, 1975
COLEMAN
GOODS/SERVICES: (U.S. CL. 3) BACKPACK FRAMES, BACKPACK SACKS,
AND BACKPACK DAY PACKS (U.S. CL. 19) CAMPING TRAILERS, <
MOTORCYCLES > AND AIR CONDITIONERS FOR VEHICLES (U.S. CL. 22)
BACKPACK GEAR-NAMELY, BACKPACK SLEEPING BAGS, BACKPACK TENTS,
AND BACKPACK FOAM SLEEPING PADS
SERIAL NO.: 72-406,422
REG. NO.: 973,159
REGISTERED: November 20, 1973
CHARGER
GOODS/SERVICES: PORTABLE ELECTRIC LANTERNS AND BATTERIES
THEREFOR
SERIAL NO.: 72-405,526
REG. NO.: 951,798
REGISTERED: January 30, 1973
PRESIDENTIAL
GOODS/SERVICES: FORCED AIR FURNACES BURNING HYDROCARBON FUELS
AND OPTIONALLY INCLUDING AIR COOLING MEANS
SERIAL NO.: 72-381,714
REG. NO.: 960,424
REGISTERED: June 5, 1973
WESTMARK
GOODS/SERVICES: KNIVES FOR SPORTSMEN, SUCH AS HUNTING KNIVES,
AND SHEATHS THEREFOR
SERIAL NO.: 72-369,152
REG. NO.: 940,457
REGISTERED: August 8, 1972
POLY-LITE
GOODS/SERVICES: COOLERS FOR PICNIC AND CAMPING USE
SERIAL NO.: 72-327,858
REG. NO.: 888,899
REGISTERED: April 7, 1970
COLEMAN VAGABOND
GOODS/SERVICES: TENTS FOR OUTDOOR CAMPING
SERIAL NO.: 72-279,374
REG. NO.: 858,231
REGISTERED: October 8, 1968
OASIS
GOODS/SERVICES: TENTS FOR OUTDOOR CAMPING
SERIAL NO.: 72-279,372
REG. NO.: 848,151
REGISTERED: April 30, 1968
COLEMAN Stylized Letters
GOODS/SERVICES: (U.S. CL. 2) JUGS AND COOLERS FOR PICNIC AND
CAMPING USE, AND FOR CAMPING WATER BAGS (U.S. CL. 6)
PACKAGED LIQUEFIED HYDROCARBON GAS FUELS FOR LANTERNS AND
OUTDOOR COOKERS (U.S. CL. 13) CAMP STOVE COOKING UTENSILS
(U.S. CL. 15) PACKAGED HYDROCARBON LIQUID FUELS FOR
LANTERNS, PORTABLE RADIANT HEATERS, AND OUTDOOR COOKERS
(U.S. CL. 22) CAMPING SLEEPING BAGS AND TENTS (U.S. CL. 34)
LIQUID AND GAS FUEL BURNING LANTERNS AND LAMPS, REPLACEMENT
PARTS THEREFOR, ACCESSORIES AND SUPPLIES-NAMELY,
GENERATORS, GLOBES, FILTER FUNNELS, AND MANTELS; LIQUID AND
GAS FUEL BURNING COOKING STOVES FOR PICNIC AND CAMPING USE,
REPLACEMENT PARTS THEREFOR, ACCESSORIES AND SUPPLIES FOR USE
THEREWITH-NAMELY, CAMP STOVE OVENS, CAMP STOVE STANDS, CAMP
STOVE GRIDDLES, < AND CAMP STOVE HEAT DRUMS, > PORTABLE
RADIANT HEATERS USING CATALYTIC COMBUSTION FOR OUTDOOR OR
CAMPING USE, GAS, OIL, AND ELECTRIC FURNACES AND WALL
HEATERS, AIR CONDITIONERS, HEAT PUMPS, COIL BLOWER UNITS,
AND ELECTRIC DUCT HEATERS
SERIAL NO.: 72-262,738
REG. NO.: 862,566
REGISTERED: December 31, 1968
COLEMAN and Design
GOODS/SERVICES: (U.S. CL. 2) JUGS AND COOLERS FOR PICNIC AND
CAMPING USE, AND FOR CAMPING WATER BAGS (U.S. CL. 6)
PACKAGED LIQUEFIED HYDROCARBON GAS FUELS FOR LANTERNS AND
OUTDOOR COOKERS (U.S. CL. 13) CAMP STOVE COOKING UTENSILS
(U.S. CL. 15) PACKAGED HYDROCARBON LIQUID FUELS FOR
LANTERNS, PORTABLE RADIANT HEATERS, AND OUTDOOR COOKERS
(U.S. CL. 22) CAMPING SLEEPING BAGS AND TENTS (U.S. CL. 34)
LIQUID AND GAS FUEL BURNING LANTERNS AND LAMPS, REPLACEMENT
PARTS THEREFOR, ACCESSORIES AND SUPPLIES-NAMELY,
GENERATORS, GLOBES, FILTER FUNNELS, AND MANTLES; LIQUID AND
GAS FUEL BURNING COOKING STOVES FOR PICNIC AND CAMPING USE,
REPLACEMENT PARTS THEREFOR, ACCESSORIES AND SUPPLIES FOR USE
THEREWITH-NAMELY, CAMP STOVE OVENS, CAMP STOVE STANDS, CAMP
STOVE GRIDDLES, < AND CAMP STOVE HEAT DRUMS, > PORTABLE
RADIANT HEATERS USING CATALYTIC COMBUSTION FOR OUTDOOR OR
CAMPING USE, GAS, OIL, AND ELECTRIC FURNACES AND WALL
HEATERS, AIR CONDITIONERS, HEAT PUMPS, COIL BLOWER UNITS < ,
AND ELECTRIC DUCT HEATERS >
SERIAL NO.: 72-262,737
REG. NO.: 865,555
REGISTERED: March 4, 1969
COLEMAN
GOODS/SERVICES: SLEEPING BAGS AND TENTS
SERIAL NO.: 72-256,271
REG. NO.: 840,367
REGISTERED: December 12, 1967
COLEMAN and Design
GOODS/SERVICES: SLEEPING BAGS AND TENTS
SERIAL NO.: 72-256,270
REG. NO.: 840,366
REGISTERED: December 12, 1967
SUPER B-B
GOODS/SERVICES: SHOT PARTICULARLY FOR AIR RIFLES
SERIAL NO.: 72-188,427
REG. NO.: 792,385
REGISTERED: July 6, 1965
MELDIN
GOODS/SERVICES: MACHINE BEARINGS
SERIAL NO.: 72-169,118
REG. NO.: 762,281
REGISTERED: December 31, 1963
SKEETER and Design
GOODS/SERVICES: BOATS
SERIAL NO.: 72-158,484
REG. NO.: 758,037
REGISTERED: October 8, 1963
SPORTSTER
GOODS/SERVICES: CAMPING STOVES
SERIAL NO.: 72-136,629
REG. NO.: 747,629
REGISTERED: April 2, 1963
POLAR PRINCE and Design
GOODS/SERVICES: AIR CONDITIONERS
SERIAL NO.: 72-086,483
REG. NO.: 700,529
REGISTERED: July 5, 1960
SNOW-LITE
GOODS/SERVICES: PICNIC COOLERS AND THERMOS JUGS
SERIAL NO.: 72-057,601
REG. NO.: 679,069
REGISTERED: May 26, 1959
WEST-CUT Block Letters
GOODS/SERVICES: SHEATH KNIVES
SERIAL NO.: 71-683,159
REG. NO.: 622,111
REGISTERED: February 28, 1956
POWERLET Stylized Letters
GOODS/SERVICES: POWER CYLINDERS FOR USE IN GAS POWERED PISTOLS
AND RIFLES
SERIAL NO.: 71-674,324
REG. NO.: 612,019
REGISTERED: September 13, 1955
COLEMAN and Design
GOODS/SERVICES: OIL WARM AIR FURNACES, < GAS AND OIL FLOOR
FURNACES, > OIL SPACE HEATERS, < GAS AND OIL WATER HEATERS,
> GASOLINE LAMPS AND LANTERNS, GASOLINE CAMP STOVES, <
GASOLINE SMOOTHING IRONS, > TRAILER COOKING STOVES AND
HEATERS
SERIAL NO.: 71-565,688
REG. NO.: 541,687
REGISTERED: May 1, 1951
DIXON INDUSTRIES, INC. - TRADEMARKS - FRANCE
DIXON
GOODS/SERVICES: TONDEUSES ET FAUCHEUSES A GAZON (MACHINES).
MACHINES ET MACHINES-OUTILS; MOTEURS (A L'EXCEPTION DES
MOTEURS POUR VEHICULES TERRESTRES); ACCOUPLEMENTS ET
COURROIES DE TRANSMISSION (A L'EXCEPTION DE CEUX POUR
VEHICULES TERRESTRES); INSTRUMENTS AGRICOLES; COUVEUSES POUR
LES OEUFS.
APPLICATION NUMBER: 179864
REGISTRATION NUMBER: 1569739
APPLICATION DATE: 11 Janvier 1990 (January 11, 1990)
ZTR
GOODS/SERVICES: TONDEUSES ET FAUCHEUSES A GAZON (MACHINES).
MACHINES ET MACHINES-OUTILS; MOTEURS (A L'EXCEPTION DES
MOTEURS POUR VEHICULES TERRESTRES); ACCOUPLEMENTS ET
COURROIES DE TRANSMISSION (A L'EXCEPTION DE CEUX POUR
VEHICULES TERRESTRES); INSTRUMENTS AGRICOLES; COUVEUSES POUR
LES OEUFS.
APPLICATION NUMBER: 179863
REGISTRATION NUMBER: 1569738
APPLICATION DATE: 11 Janvier 1990 (January 11, 1990)
DIXON INDUSTRIES, INC. - TRADEMARKS - BENELUX
DIXON
GOODS/SERVICES: KL 7 GRASMAAIMACHINES.
APPLICATION NUMBER: 739751
REGISTRATION NUMBER: 475805
APPLICATION DATE: 11 January 1990 (January 11, 1990)
ZTR
GOODS/SERVICES: KL 7 GRASMAAIMACHINES.
APPLICATION NUMBER: 739750
REGISTRATION NUMBER: 474310
APPLICATION DATE: 11 January 1990 (January 11, 1990)
DIXON INDUSTRIES, INC. - TRADEMARKS - DENMARK
ZTR
APPLICATION NUMBER: VA 194 1990
APPLICATION DATE: 10 Januar 1990 (January 10, 1990)
DIXON
GOODS/SERVICES: KLASSE 07: PLAENEKLIPPERE
APPLICATION NUMBER: VA 193 1990
REGISTRATION NUMBER: VR 4456 1991
REGISTERED: 26 Juli 1991 (July 26, 1991)
DIXON INDUSTRIES, INC. - TRADEMARKS - GERMANY
DIXON
GOODS/SERVICES: RASENMAHER, SOWEIT IN KLASSE 7 ENTHALTEN.
APPLICATION NUMBER: D 47479
REGISTRATION NUMBER: 1165752
REGISTERED: 15 Oktober 1990 (October 15, 1990)
FREDERICK MANUFACTURING COMPANY - TRADEMARKS - U.S. FEDERAL
POWERWORKS
GOODS/SERVICES: LAWNMOWER AND LINE TRIMMER REPLACEMENT PARTS,
NAMELY, AIR FILTERS, LAWN MOWER BLADES, LAWN MOWER BLADE
ADAPTORS, TUNE-UP KITS CONSISTING OF POINTS, CONDENSER AND
SPARK PLUG, MUFFLERS, GAS CAPS, FLYWHEEL KEYS, GAS FILTERS,
LAWN MOWER WHEEL BOLTS, STARTER ROPES, AND TRIMMER LINE
SERIAL NO.: 73-823,588
REG. NO.: 1,614,633
REGISTERED: September 25, 1990
GOLF-BUOY
GOODS/SERVICES: INSULATED AND SWIVEL-MOUNTED DRINK HOLDERS
SERIAL NO.: 73-416,897
REG. NO.: 1,277,037
REGISTERED: May 8, 1984
BIKE-BUOY
GOODS/SERVICES: INSULATED AND SWIVEL-MOUNTED DRINK HOLDERS
SERIAL NO.: 73-370,104
REG. NO.: 1,253,801
REGISTERED: October 11, 1983
SAIL-BUOY
GOODS/SERVICES: SWIVEL-MOUNTED HOLDER FOR BEVERAGE BOTTLES,
CANS AND THE LIKE FOR ATTACHMENT TO MOVING VEHICLES
SERIAL NO.: 73-341,685
REG. NO.: 1,242,126
REGISTERED: June 14, 1983
DRINK-BUOY
GOODS/SERVICES: INSULATED FOAM HOLDERS FOR BEVERAGES
SERIAL NO.: 73-341,461
REG. NO.: 1,249,869
REGISTERED: August 30, 1983
CADDIE-BUOY
GOODS/SERVICES: SWIVEL-MOUNTED HOLDERS FOR BEVERAGE BOTTLES,
CANS AND THE LIKE FOR ATTACHMENT TO MOVING VEHICLES
SERIAL NO.: 73-341,460
REG. NO.: 1,236,373
REGISTERED: May 3, 1983
MUG-BUOY
GOODS/SERVICES: SWIVEL-MOUNTED HOLDER FOR BEVERAGE BOTTLES,
CANS AND THE LIKE FOR ATTACHMENT TO MOVING VEHICLES
SERIAL NO.: 73-341,450
REG. NO.: 1,242,125
REGISTERED: June 14, 1983
COASTER-BUOY
GOODS/SERVICES: SWIVEL-MOUNTED HOLDER FOR BEVERAGE BOTTLES,
CANS AND THE LIKE FOR ATTACHMENT TO MOVING VEHICLES
SERIAL NO.: 73-341,324
REG. NO.: 1,242,124
REGISTERED: June 14, 1983
A Stylized Letters
GOODS/SERVICES: BLADES FOR ROTARY LAWNMOWERS
SERIAL NO.: 73-303,881
REG. NO.: 1,187,411
REGISTERED: January 26, 1982
ORBEX
GOODS/SERVICES: LIQUID FUEL FOR HAND WARMERS
SERIAL NO.: 73-278,298
REG. NO.: 1,194,957
REGISTERED: May 11, 1982
DESIGN ONLY
GOODS/SERVICES: HOLDER FOR CONTAINERS OF BEVERAGES
SERIAL NO.: 73-277,218
REG. NO.: 1,251,684
REGISTERED: September 20, 1983
DESIGN ONLY
GOODS/SERVICES: BLADES FOR ROTARY LAWNMOWERS
SERIAL NO.: 73-277,115
REG. NO.: 1,215,472
REGISTERED: November 9, 1982
ORBEX
GOODS/SERVICES: BLADES FOR ROTARY LAWNMOWERS
SERIAL NO.: 73-277,094
REG. NO.: 1,189,134
REGISTERED: February 9, 1982
ORBEX
GOODS/SERVICES: FISHING REELS AND TACKLE BOXES, NAMELY, BOXES
USED FOR STORING ARTIFICAL FLIES USED IN FISHING; AND ANIMAL
SCENTED LURE
SERIAL NO.: 73-276,942
REG. NO.: 1,195,816
REGISTERED: May 18, 1982
DESIGN ONLY
GOODS/SERVICES: LIQUID FUEL CATALYTIC HAND WARMERS AND
REPLACEMENT BURNERS THEREFOR
SERIAL NO.: 73-276,937
REG. NO.: 1,172,163
REGISTERED: October 6, 1981
ORBEX
GOODS/SERVICES: BODY BELTS WORN FOR WARMTH AND FOR SUPPORTING
HAND WARMERS AND THE LIKE IN CLOSE PROXIMITY TO USERS
THEREOF
SERIAL NO.: 73-276,904
REG. NO.: 1,189,408
REGISTERED: February 9, 1982
ORBEX
GOODS/SERVICES: LIQUID FUEL CATALYTIC HAND WARMERS AND
REPLACEMENT BURNERS THEREFOR
SERIAL NO.: 73-276,903
REG. NO.: 1,189,222
REGISTERED: February 9, 1982
DESIGN ONLY
GOODS/SERVICES: BODY BELTS WORN FOR WARMTH AND FOR SUPPORTING
HAND WARMERS AND THE LIKE IN CLOSE PROXIMITY TO USERS
THEREOF
SERIAL NO.: 73-276,901
REG. NO.: 1,197,975
REGISTERED: June 15, 1982
DESIGN ONLY
GOODS/SERVICES: FISHING REELS, FISHING TACKLE BOXES, AND ANIMAL
SCENTED LURE
SERIAL NO.: 73-276,900
REG. NO.: 1,189,479
REGISTERED: February 9, 1982
ORBEX
GOODS/SERVICES: FRAME TYPE HOLDERS TO BE MOUNTED ON BOATS AND
OTHER MOVING VEHICLES FOR HOLDING BEVERAGE BOTTLES, DRINKING
GLASSES, DRINK CANS, MUGS AND RECEPTACLES FOR CIGARETTES AND
ASHES
SERIAL NO.: 73-276,843
REG. NO.: 1,226,681
REGISTERED: February 8, 1983
ALADDIN
GOODS/SERVICES: BLADES FOR ROTARY LAWNMOWERS
SERIAL NO.: 73-169,042
REG. NO.: 1,125,924
REGISTERED: October 16, 1979
JON-E and Design
GOODS/SERVICES: ANIMAL SCENTED LURE
SERIAL NO.: 73-088,774
REG. NO.: 1,066,296
REGISTERED: May 24, 1977
DESIGN ONLY
GOODS/SERVICES: FISHING REELS AND BOXES USED FOR STORING
ARTIFICIAL FLIES USED IN FISHING
SERIAL NO.: 72-368,565
REG. NO.: 912,852
REGISTERED: June 8, 1971
SILVER STREAK and Design
GOODS/SERVICES: LAWN MOWER PARTS AND BLADES
SERIAL NO.: 72-142,847
REG. NO.: 788,710
REGISTERED: April 27, 1965
PERRINE
GOODS/SERVICES: FISHING REELS AND FISHING TACKLE BOXES
SERIAL NO.: 72-105,041
REG. NO.: 719,943
REGISTERED: August 15, 1961
DEER-COY
GOODS/SERVICES: ANIMAL SCENTED LURE
SERIAL NO.: 72-075,459
REG. NO.: 700,084
REGISTERED: June 28, 1960
BAR BUOY
GOODS/SERVICES: FRAME TYPE HOLDERS TO BE MOUNTED ON BOATS AND
OTHER MOVING VEHICLES FOR HOLDING BEVERAGE BOTTLES, DRINKING
GLASSES AND THE LIKE
SERIAL NO.: 72-056,753
REG. NO.: 679,813
REGISTERED: June 9, 1959
JON-E' Stylized Letters
GOODS/SERVICES: LIQUID FUEL CATALYTIC TYPE HAND WARMERS
SERIAL NO.: 71-569,548
REG. NO.: 529,119
REGISTERED: August 15, 1950
FEDERAL CARTRIDGE COMPANY - TRADEMARKS - UNITED KINGDOM
AMERICAN EAGLE and Design
GOODS/SERVICES: SHOTSHELLS, RIM AND CENTER-FIRE CARTRIDGES;
AMMUNITION.
REGISTRATION NUMBER: 2029218
APPLICATION DATE: 03 August 1995 (August 3, 1995)
AMERICAN EAGLE and Design
GOODS/SERVICES: SHOTGUN SHELLS, RIMFIRE AND CENTERFIRE
CARTRIDGES: AMMUNITION.
REGISTRATION NUMBER: 2029215
APPLICATION DATE: 03 August 1995 (August 3, 1995)
FEDERAL PREMIUM
GOODS/SERVICES: AMMUNITION; SHOTGUN SHELLS AND RIFLE
CARTRIDGES; ALL INCLUDED IN CLASS 13.
REGISTRATION NUMBER: 2026861
APPLICATION DATE: 13 July 1995 (July 13, 1995)
EXTRA LITE
GOODS/SERVICES: AMMUNITION; SHOTGUN CARTRIDGES AND SHOTGUN
SHELLS.
REGISTRATION NUMBER: 2024311
APPLICATION DATE: 20 June 1995 (June 20, 1995)
FEDERAL
GOODS/SERVICES: AMMUNITION; SHELLS, SHOT AND CARTRIDGES; RIM
FIRE CARTRIDGES, CENTRE FIRE CARTRIDGES, SMALL ARMS
AMMUNITIONS, CENTRE FIRE PISTOL CARTRIDGES, RIM FIRE PISTOL
CARTRIDGES, SHOT SHELLS, AIR RIFLE SHOT, SHOTGUN SHELL WADS,
CENTRE FIRE REVOLVER CARTRIDGES.
REGISTRATION NUMBER: 2024309
APPLICATION DATE: 20 June 1995 (June 20, 1995)
FEDERAL GOLD MEDAL
GOODS/SERVICES: AMMUNITION; SHELLS AND CARTRIDGES; SHOTGUN
SHELLS, RIM FIRE RIFLE AND PISTOL CARTRIDGES, CENTRE FIRE
RIFLE AND PISTOL CARTRIDGES.
REGISTRATION NUMBER: 2024307
APPLICATION DATE: 20 June 1995 (June 20, 1995)
ULTRAMATCH
GOODS/SERVICES: AMMUNITION; CARTRIDGES FOR RIFLES AND PISTOLS; RIM-
FIRE RIFLE AND PISTOL CARTRIDGES FOR USE IN INTERNATIONAL
SHOOTING COMPETITIONS.
REGISTRATION NUMBER: 2015716
APPLICATION DATE: 28 March 1995 (March 28, 1995)
NYCLAD and Design
GOODS/SERVICES: AMMUNITION; CENTRE FIRE PISTOL CARTRIDGES; ALL
INCLUDED IN CLASS 13
REGISTRATION NUMBER: 1491627
APPLICATION DATE: 20 February 1992 (February 20, 1992)
HOFFMAN and Design
GOODS/SERVICES: APPARATUS FOR LIGHTING AND VENTILATION, AIR-
CONDITIONING APPARATUS, AND PARTS AND FITTINGS FOR ALL THE
AFORESAID GOODS; AND ALL OTHER GOODS IN THIS CLASS
APPLICATION NUMBER: 1232866
APPLICATION DATE: 02 January 1985 (January 2, 1985)
HOFFMAN Stylized Letters
GOODS/SERVICES: ANTI-CORROSIVE PREPARATIONS, CORROSION
INHIBITORS; AND ALL OTHER GOODS IN THIS CLASS.
APPLICATION NUMBER: 1232864
APPLICATION DATE: 02 January 1985 (January 2, 1985)
FEDERAL CARTRIDGE COMPANY - TRADEMARKS - CANADA
THE TECHNOLOGY LEADER
GOODS/SERVICES: (1) Educational, instructional and
informational services rendered to the public, by producing
and distributing printed materials pertaining to the latest
improvements, designs and materials developed in small arms
ammunition, relative to identification of new materials,
their characteristics, their availability, geographical
sources of materials, composition, methods of formation,
advances in constructional design, comparisons between
materials available and their identification, choke
recommendations, comparative costs and prices, comparative
performances, technical study results, domestic and foreign
government approval status, legality, and hand loading
availability.
APP. NO.: 0848,372
REG. NO.: TMA509,905 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: March 24, 1999
LIGHTNING
GOODS/SERVICES: (1) Rim fire rifle cartridges.
APP. NO.: 0637,740
REG. NO.: TMA372,534 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 24, 1990
BLITZ
GOODS/SERVICES: (1) Rifle cartridges.
APP. NO.: 0520,825
REG. NO.: TMA306,475 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 30, 1985
HOFFMAN and Design
GOODS/SERVICES: (1) Industrial electrical enclosures and
weatherproof electrical distribution and lighting equipment,
specifically empty electrical enclosure boxes and cabinets
and panels therefor, empty sheet metal boxes and cabinets,
empty wireway and wire troughs, washers for electrical box
connections, light bulb holders, portable lighting fixtures,
and weatherproof power outlets consisting of prewired
electrical receptacles mounted in weatherproof enclosures.
APP. NO.: 0512,509
REG. NO.: TMA320,200 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: October 31, 1986
HOFFMAN
GOODS/SERVICES: (1) Industrial electrical enclosures and
weatherproof electric distribution and lighting equipment,
specifically empty electrical enclosure boxes and cabinets
and panels therefor, empty sheet metal boxes and cabinets,
empty wireway and wire troughs, washers for electrical box
connections, light bulb holders, portable lighting fixtures,
and weatherproof power outlets consisting of prewired
electrical receptacles mounted in weatherproof enclosures.
APP. NO.: 0512,508
REG. NO.: TMA306,760 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: September 6, 1985
H and Design
GOODS/SERVICES: (1) Industrial electrical enclosures and
weatherproof electric distribution and lighting equipment,
specifically empty electrical enclosure boxes and cabinets
and panels therefor, empty sheet metal boxes and cabinets,
empty wireway and wire troughs, washers for electrical box
connections, light bulb holders, portable lighting fixtures,
and weatherproof power outlets consisting of prewired
electrical receptacles mounted in weatherproof enclosures.
APP. NO.: 0512,506
REG. NO.: TMA296,393 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: October 26, 1984
GOLD MEDAL
GOODS/SERVICES: (1) Shotgun shells.
APP. NO.: 0445,958
REG. NO.: TMA251,434 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: October 10, 1980
PREMIUM and Design
GOODS/SERVICES: (1) Shotgun shells and rifle cartridges.
APP. NO.: 0435,595
REG. NO.: TMA317,595 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 22, 1986
HI-SHOK
GOODS/SERVICES: (1) Bullets for rifle and hand gun ammunition.
APP. NO.: 0334,735
REG. NO.: TMA177,590 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 13, 1971
TRIPLE PLUS
GOODS/SERVICES: (1) Shotgun shells and shotgun shell wad
columns.
APP. NO.: 0330,393
REG. NO.: TMA174,124 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: February 5, 1971
FEDERAL
GOODS/SERVICES: (1) Ammunition. (2) Ammunition components. (3)
Air rifle shot. (4) Shot shells, metallic cartridges, air
rifle shot, hand traps, ammunition components such as
primers, card wads, cushion wads, and empty primed shells.
APP. NO.: 0306,196
REG. NO.: TMA158,048 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: August 30, 1968
CHAMPION
GOODS/SERVICES: (1) Shot shells and shot shell wads.
APP. NO.: 0306,195
REG. NO.: TMA157,040 REGISTRATION TYPE: TMA (Trademark Act)
REGISTERED: May 31, 1968
FEDERAL CARTRIDGE COMPANY - TRADEMARKS - U.S. FEDERAL
PREMIUM
GOODS/SERVICES: RIFLE, PISTOL AND SHOTSHELL AMMUNITION, NAMELY,
RIMFIRE RIFLE, CENTERFIRE RIFLE, VARMINT RIFLE, HIGH ENERGY,
SAFARI RIFLE LOAD, HANDGUN LOADS, TUNGSTEN, TUNGSTEN-IRON,
TUNGSTEN POLYMER, STEEL, LEAD, PERSONAL DEFENSE, BUCKSHOT,
SABOT SLUG, RIFLED SLUG SHOTSHELL LOADS, AND BRAS UNPRIMED
RIFLE CARTRIDGE CASINGS
SERIAL NO.: 75-716,522
FIRST USE: 1978 (Intl Class 13)
FEDERAL CLASSIC
GOODS/SERVICES: HOTSHELLS, CENTERFIRE RIFLE CARTRIDGES, RIMFIRE
RIFLE CARTRIDGES, PISTOL CARTRIDGES, HANDGUN CARTRIDGES,
SABOT SLUG CARTRIDGES, AND RIFLED SLUG CARTRIDGES
SERIAL NO.: 75-707,849
FIRST USE: December 1, 1988 (Intl Class 13)
CLASSIC
GOODS/SERVICES: RIFLE, PISTOL, REVOLVER, SHOTSHELL AND SHOTGUN
SLUG AMMUNITION, NAMELY, RIMFIRE RIFLE, CENTERFIRE RIFLE
LOADS, PISTOL LOADS, REVOLVER LOADS, SABOT SLUG, RIFLED
SLUG, BUCKSHOT, STEEL, LEAD, HIGH VELOCITY STEEL LOADS, AND
HANDGUN LOADS
SERIAL NO.: 75-707,290
FIRST USE: 1989 (Intl Class 13)
FEDERAL PREMIUM
GOODS/SERVICES: SHOTSHELLS, CENTERFIRE RIFLE CARTRIDGES,
RIMFIRE RIFLE CARTRIDGES, SABOT SLUG CARTRIDGES, RIFLE SLUG
CARTRIDGES, HANDGUN CARTRIDGES, AND PISTOL CARTRIDGES
SERIAL NO.: 75-707,288
FIRST USE: January 24, 1977 (Intl Class 13)
PERSONAL DEFENSE
GOODS/SERVICES: SHOTSHELLS
SERIAL NO.: 75-707,287
FIRST USE: November 6, 1996 (Intl Class 13)
GOLD MEDAL
GOODS/SERVICES: AMMUNITION PRIMERS
SERIAL NO.: 75-707,193
FIRST USE: 1980 (Intl Class 13)
THE LEAD EQUIVALENT
GOODS/SERVICES: SHOTSHELLS, AND RIFLE AND HANDGUN CARTRIDGES
SERIAL NO.: 75-686,172
FILED: April 16, 1999
WHITETAIL CLASSIC
GOODS/SERVICES: SHOTSHELLS, AND RIFLE AND HANDGUN CARTRIDGES
SERIAL NO.: 75-684,649
FILED: April 16, 1999
DEEP-SHOK
GOODS/SERVICES: SHOTSHELLS, AND RIFLE AND HANDGUN CARTRIDGES
SERIAL NO.: 75-684,648
FILED: April 16, 1999
KNOCKDOWN POWER
GOODS/SERVICES: SHOTSHELLS, AND RIFLE AND HANDGUN CARTRIDGES
SERIAL NO.: 75-684,647
FILED: April 16, 1999
GOLD CARTON DESIGN
GOODS/SERVICES: SHOTGUN SABOT SLUGS, SHOT SHELLS, CENTER FIRE
RIFLE CARTRIDGES, RIM FIRE RIFLE CARTRIDGES, AND PISTOL
CARTRIDGES
SERIAL NO.: 75-611,761
FIRST USE: 1992 (Intl Class 13)
HUNTERS FOR CONSERVATION
GOODS/SERVICES: ASSOCIATION AND PUBLIC SERVICES; NAMELY,
PROMOTING THE SUPPORT OF HUNTING WITH AN EMPHASIS ON HABITAT
CONSERVATION AND MANAGEMENT
SERIAL NO.: 75-475,045
HEAVY FIELD LOAD
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 75-443,609
REG. NO.: 2,235,542
REGISTERED: March 23, 1999
FEDERAL PREMIUM SAFARI
GOODS/SERVICES: CENTERFIRE CARTRIDGES
SERIAL NO.: 75-212,225
REG. NO.: 2,125,468
REGISTERED: December 30, 1997
PERSONAL DEFENSE
GOODS/SERVICES: CENTERFIRE CARTRIDGES
SERIAL NO.: 75-200,915
REG. NO.: 2,112,332
REGISTERED: November 11, 1997
PREMIUM
GOODS/SERVICES: RIM-FIRE RIFLE CARTRIDGES AND PISTOL CARTRIDGES
SERIAL NO.: 75-089,284
REG. NO.: 2,047,681
REGISTERED: March 25, 1997
NON TOXIC LEAD FREE and Design
GOODS/SERVICES: SMALL FIREARM AMMUNITION
SERIAL NO.: 75-066,814
REG. NO.: 2,165,014
EXTRA-LITE
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 75-043,088
REG. NO.: 2,017,887
REGISTERED: November 19, 1996
BALLISTICLEAN Stylized Letters
GOODS/SERVICES: RIM-FIRE AND CENTER-FIRE CARTRIDGES
SERIAL NO.: 75-027,145
REG. NO.: 2,012,000
REGISTERED: October 29, 1996
TOXIC-METAL FREE
GOODS/SERVICES: SMALL ARMS AMMUNITION
SERIAL NO.: 75-027,144
REG. NO.: 2,018,517
REGISTERED: November 19, 1996
MULTI-PURPOSE
GOODS/SERVICES: SHOTSHELLS
SERIAL NO.: 75-022,160
REG. NO.: 2,045,204
REGISTERED: March 11, 1997
SUPPORT THE SHOOTING FEDERAL SPORTS and Design
GOODS/SERVICES: (INT. CL. 16) NEWSLETTERS, PRINTED INFORMATION
SHEETS AND BROCHURES WHICH PROMOTE HUNTING, TARGET SHOOTING
AND CONSERVATION FOR DISTRIBUTION TO THE PUBLIC BY
AMMUNITION DEALERS (INT. CL. 42) PROMOTING PUBLIC AWARENESS
OF THE SPORTS OF TARGET SHOOTING AND HUNTING WITH AN
EMPHASIS ON CONSERVATION
SERIAL NO.: 74-688,409
REG. NO.: 1,991,090
REGISTERED: August 6, 1996
TACTICAL
GOODS/SERVICES: SHOTSHELL, PISTOL AND CENTERFIRE RIFLE
CARTRIDGES
SERIAL NO.: 74-680,859
REG. NO.: 2,091,808
REGISTERED: August 26, 1997
GOLD MEDAL ULTRAMATCH
GOODS/SERVICES: ONLY MATCH PERFORMANCE GRADE RIMFIRE, RIFLE AND
PISTOL CARTRIDGES FOR USE IN INTERNATIONAL SHOOTING
COMPETITION
SERIAL NO.: 74-555,011
REG. NO.: 1,963,786
REGISTERED: March 26, 1996
SUPPORT THE SHOOTING SPORTS
GOODS/SERVICES: (INT. CL. 16) NEWSLETTERS, PRINTED INFORMATION
SHEETS, BROCHURES, AND WHICH PROMOTE HUNTING, TARGET
SHOOTING AND CONSERVATION, FOR DISTRIBUTION TO THE PUBLIC BY
AMMUNITION DEALERS (INT. CL. 42) PROMOTING PUBLIC AWARENESS
OF THE SPORTS OF TARGET SHOOTING AND HUNTING, WITH AN
EMPHASIS ON HABITAT CONSERVATION
SERIAL NO.: 74-539,689
REG. NO.: 1,989,022
REGISTERED: July 23, 1996
FEDERAL WING & CLAY
GOODS/SERVICES: (INT. CL. 16) EDUCATIONAL AND PROMOTIONAL
LITERATURE USED IN CONNECTION WITH TRAINING IN THE SPORT OF
TARGET SHOOTING (INT. CL. 25) T-SHIRTS AND HATS
SERIAL NO.: 74-539,687
REG. NO.: 2,141,197
REGISTERED: March 3, 1998
CLASSIC
GOODS/SERVICES: CENTERFIRE RIFLE, PISTOL, AND REVOLVER
CARTRIDGES; RIMFIRE RIFLE AND PISTOL CARTRIDGES; SHOTGUN
SHELLS; AND SHOTGUN SLUGS
SERIAL NO.: 74-370,154
REG. NO.: 1,809,050
REGISTERED: December 7, 1993
TACTICAL LOAD
GOODS/SERVICES: SHOTSHELLS AND CENTERFIRE CARTRIDGES
SERIAL NO.: 74-340,096
REG. NO.: 1,980,333
REGISTERED: June 18, 1996
PREMIUM SAFARI
GOODS/SERVICES: CENTERFIRE RIFLE CARTRIDGES
SERIAL NO.: 74-326,416
REG. NO.: 1,778,868
REGISTERED: June 29, 1993
GOLD MEDAL
GOODS/SERVICES: CENTERFIRE RIFLE, PISTOL, AND REVOLVER
CARTRIDGES; AND .22 CALIBER RIMFIRE CARTRIDGES
SERIAL NO.: 74-319,717
REG. NO.: 1,820,567
REGISTERED: February 8, 1994
GOLD MEDAL Stylized Letters
GOODS/SERVICES: CENTERFIRE RIFLE, PISTOL, AND REVOLVER
CARTRIDGES; AND .22 CALIBER RIMFIRE CARTRIDGES
SERIAL NO.: 74-319,397
REG. NO.: 1,909,268
REGISTERED: August 1, 1995
PALM RIDER
GOODS/SERVICES: PAINT BUCKET
SERIAL NO.: 74-250,298
REG. NO.: 1,788,868
REGISTERED: August 17, 1993
FIRST USE: July 3, 1992 (Intl Class 16)
FEDERAL PREMIUM DEALERS CLUB 12 GA and Design
GOODS/SERVICES: (INT. CL. 16) PUBLICATIONS; NAMELY,
NEWSLETTERS, PAMPHLETS, FLIERS, AND BROCHURES PERTAINING TO
ISSUES IN THE AMMUNITION AND FIREARMS INDUSTRY (INT. CL. 42)
ASSOCIATION SERVICES; NAMELY, PROMOTING THE INTERESTS OF
AMMUNITION DEALERS
SERIAL NO.: 74-224,709
REG. NO.: 1,791,550
REGISTERED: September 7, 1993
PREMIUM EDGE
GOODS/SERVICES: NEWSLETTERS, PRINTED INFORMATION SHEETS AND
BROCHURES ALL DEALING WITH FIREARMS AND AMMUNITION
SERIAL NO.: 74-224,705
REG. NO.: 1,720,229
REGISTERED: September 29, 1992
AMERICAN EAGLE and Design
GOODS/SERVICES: SHOTGUN SHELLS, RIMFIRE AND CENTERFIRE
CARTRIDGES
SERIAL NO.: 74-130,306
REG. NO.: 1,671,071
REGISTERED: January 7, 1992
DESIGN ONLY
GOODS/SERVICES: SHOTGUN SHELLS, CENTERFIRE CARTRIDGES, AND
RIMFIRE CARTRIDGES
SERIAL NO.: 74-124,723
REG. NO.: 1,673,392
REGISTERED: January 28, 1992
FIRST USE: November 29, 1990 (Intl Class 13)
HUNTERS FOR CONSERVATION
GOODS/SERVICES: ASSOCIATION AND PUBLIC SERVICES; NAMELY,
PROMOTING THE SPORT OF HUNTING WITH AN EMPHASIS ON HABITAT
CONSERVATION AND MANAGEMENT
SERIAL NO.: 74-099,719
REG. NO.: 1,697,216
REGISTERED: June 23, 1992
HYDRA-SHOK
GOODS/SERVICES: CENTERFIRE PISTOL CARTRIDGES
SERIAL NO.: 73-827,192
REG. NO.: 1,594,112
REGISTERED: May 1, 1990
NYCLAD Stylized Letters
GOODS/SERVICES: CENTER FIRE PISTOL CARTRIDGES
SERIAL NO.: 73-826,951
REG. NO.: 1,594,111
REGISTERED: May 1, 1990
AMERICAN EAGLE Stylized Letters
GOODS/SERVICES: SHOTGUN SHELLS, AND CENTER FIRE AND RIM FIRE
RIFLE AND PISTOL CARTRIDGES
SERIAL NO.: 73-826,420
REG. NO.: 1,600,686
REGISTERED: June 12, 1990
HI-POWER
GOODS/SERVICES: SHOTGUN SHELLS, CENTER FIRE AND RIM FIRE RIFLE
CARTRIDGES, AND PISTOL AND REVOLVER AMMUNITION
SERIAL NO.: 73-826,026
REG. NO.: 1,607,415
REGISTERED: July 24, 1990
CLASSIC Stylized Letters
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-816,761
REG. NO.: 1,605,441
REGISTERED: July 10, 1990
HI-BRASS
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-816,683
REG. NO.: 1,596,295
REGISTERED: May 15, 1990
TOP GUN Block Letters
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-816,672
REG. NO.: 1,645,931
REGISTERED: May 28, 1991
EXTRA-LITE
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-799,282
REG. NO.: 1,567,701
REGISTERED: November 21, 1989
CLASSIC HI-BRASS Stylized Letters
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-799,199
REG. NO.: 1,595,232
REGISTERED: May 8, 1990
HOFFMAN Stylized Letters
GOODS/SERVICES: (INT. CL. 9) INDUSTRIAL ELECTRICAL ENCLOSURES
AND WEATHERPROOF ELECTRICAL DISTRIBUTION EQUIPMENT-NAMELY,
EMPTY ELECTRICAL ENCLOSURE BOXES AND CABINETS AND PANELS
THEREFOR, EMPTY SHEET METAL BOXES AND CABINETS, EMPTY
WIREWAY AND WIRE TROUGHS, WASHERS FOR ELECTRICAL BOX
CONNECTIONS, LIGHT BULB HOLDERS, AND WEATHERPROOF POWER
OUTLETS CONSISTING OF PREWIRED ELECTRICAL RECEPTACLES
MOUNTED IN WEATHERPROOF ENCLOSURES(INT. CL. 11) WEATHER
ELECTRICAL LIGHTING EQUIPMENT - NAMELY, PORTABLE LIGHTING
FIXTURES
SERIAL NO.: 73-452,582
REG. NO.: 1,342,135
REGISTERED: June 18, 1985
GOLD MEDAL
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-235,671
REG. NO.: 1,155,509
GOLD MEDAL and Design
GOODS/SERVICES: SHOTGUN SHELLS
SERIAL NO.: 73-235,669
REG. NO.: 1,155,508
REGISTERED: May 26, 1981
PREMIUM Stylized Letters
GOODS/SERVICES: SHOTGUN SHELLS AND RIFLE CARTRIDGES
SERIAL NO.: 73-200,036
REG. NO.: 1,298,731
REGISTERED: October 2, 1984
NYCLAD
GOODS/SERVICES: AMMUNITION, NAMELY, AMMUNITION FOR HANDGUNS
SERIAL NO.: 73-191,115
REG. NO.: 1,148,863
REGISTERED: March 24, 1981
CHAMPION
GOODS/SERVICES: CLAY TARGETS
SERIAL NO.: 73-086,683
REG. NO.: 1,054,411
REGISTERED: December 14, 1976
TRIPLE-PLUS
GOODS/SERVICES: SHOTGUN SHELLS AND SHOTGUN SHELL WAD COLUMNS
SERIAL NO.: 72-370,088
REG. NO.: 920,023
REGISTERED: September 14, 1971
LEAGUE
GOODS/SERVICES: SHOT SHELLS
SERIAL NO.: 72-364,648
REG. NO.: 912,132
REGISTERED: June 8, 1971
DESIGN ONLY
GOODS/SERVICES: SMALL ARMS AMMUNITION
SERIAL NO.: 72-330,271
REG. NO.: 907,401
REGISTERED: February 9, 1971
DESIGN ONLY
GOODS/SERVICES: SMALL ARMS AMMUNITION
SERIAL NO.: 72-330,268
REG. NO.: 898,553
REGISTERED: September 15, 1970
FEDERAL and Design
GOODS/SERVICES: SMALL ARMS AMMUNITION
SERIAL NO.: 72-330,266
REG. NO.: 908,894
REGISTERED: March 2, 1971
DESIGN ONLY
STATUS: Renewed
GOODS/SERVICES: SMALL ARMS AMMUNITION
SERIAL NO.: 72-330,264
REG. NO.: 907,400
REGISTERED: February 9, 1971
HI-SHOK
GOODS/SERVICES: BULLETS FOR RIFLE AND HAND GUN AMMUNITION
SERIAL NO.: 72-321,207
REG. NO.: 891,883
REGISTERED: June 2, 1970
H and Design
GOODS/SERVICES: INDUSTRIAL ELECTRICAL ENCLOSURES AND
WEATHERPROOF ELECTRIC DISTRIBUTION AND LIGHTING EQUIPMENT,
SPECIFICALLY, EMPTY ELECTRICAL ENCLOSURE BOXES AND CABINETS
AND PANELS THEREFOR, EMPTY SHEET METAL BOXES AND CABINETS,
EMPTY WIREWAY AND WIRE TROUGHS, WASHERS FOR ELECTRICAL BOX
CONNECTIONS, LIGHT BULB HOLDERS, PORTABLE LIGHTING FIXTURES,
AND WEATHERPROOF POWER OUTLETS CONSISTING OF PREWIRED
ELECTRICAL RECEPTACLES MOUNTED IN WEATHERPROOF ENCLOSURES
SERIAL NO.: 72-264,534
REG. NO.: 850,908
REGISTERED: June 18, 1968
DESIGN ONLY
GOODS/SERVICES: AMMUNITION-NAMELY, SHOT SHELLS, TARGET LOAD
SHOT SHELLS, CENTER FIRE RIFLE CARTRIDGES, AND RIM FIRE
CARTRIDGES
SERIAL NO.: 72-239,033
REG. NO.: 840,725
REGISTERED: December 19, 1967
AMERICAN EAGLE and Design
GOODS/SERVICES: CENTER FIRE CARTRIDGES
SERIAL NO.: 72-221,874
REG. NO.: 808,014
REGISTERED: May 10, 1966
DESIGN ONLY
GOODS/SERVICES: CENTER FIRE CARTRIDGES
SERIAL NO.: 72-221,810
REG. NO.: 808,748
REGISTERED: May 24, 1966
AMERICAN EAGLE
GOODS/SERVICES: CENTER FIRE CARTRIDGES
SERIAL NO.: 72-221,809
REG. NO.: 808,747
REGISTERED: May 24, 1966
AMERICAN EAGLE and Design
GOODS/SERVICES: .22 CALIBER AMMUNITION
SERIAL NO.: 72-182,717
REG. NO.: 783,485
REGISTERED: January 19, 1965
DESIGN ONLY
GOODS/SERVICES: .22 CALIBER AMMUNITION
SERIAL NO.: 72-182,716
REG. NO.: 782,263
REGISTERED: December 29, 1964
AMERICAN EAGLE
GOODS/SERVICES: .22 CALIBER AMMUNITION
SERIAL NO.: 72-182,715
REG. NO.: 781,203
REGISTERED: December 8, 1964
HI-SHOK
GOODS/SERVICES: BULLETS FOR RIFLE AND HAND GUN AMMUNITION
SERIAL NO.: 72-160,415
REG. NO.: 765,673
REGISTERED: February 25, 1964
FEDERAL
GOODS/SERVICES: SHOT SHELLS, METALLIC CARTRIDGES, AIR RIFLE
SHOT, HAND TRAPS, AMMUNITION COMPONENTS, SUCH AS PRIMERS,
CARD WADS, CUSHION WADS, AND EMPTY PRIMED SHELLS
SERIAL NO.: 72-121,373
REG. NO.: 729,938
REGISTERED: April 17, 1962
HOFFMAN
GOODS/SERVICES: ELECTRICAL ENCLOSURE BOXES AND CABINETS AND
PANELS THEREFOR, SHEET METAL BOXES AND CABINETS, WIREWAY AND
WIRE TROUGHS, WASHERS FOR ELECTRICAL BOX CONNECTIONS, REMOTE
CONTROL SWITCHING DEVICES, LIGHT BULB HOLDERS, AND PORTABLE
LIGHTING FIXTURES
SERIAL NO.: 72-054,525
REG. NO.: 711,466
REGISTERED: February 21, 1961
DESIGN ONLY
GOODS/SERVICES: SHOT SHELLS
SERIAL NO.: 71-657,271
REG. NO.: 595,057
REGISTERED: September 14, 1954
DESIGN ONLY
GOODS/SERVICES: TRAP SHOTGUN SHELLS
SERIAL NO.: 71-645,559
REG. NO.: 600,234
REGISTERED: January 4, 1955
AMERICAN EAGLE
GOODS/SERVICES: SHOT SHELLS AND AIR RIFLE SHOT
SERIAL NO.: 71-638,197
REG. NO.: 577,427
REGISTERED: July 14, 1953
MONARK
GOODS/SERVICES: CARTRIDGES AND SHOTGUN SHELLS
SERIAL NO.: 71-554,221
REG. NO.: 509,767
REGISTERED: May 10, 1949
AMERICAN EAGLE and Design
GOODS/SERVICES: SHOT SHELLS
SERIAL NO.: 71-291,558
REG. NO.: 267,303
REGISTERED: February 18, 1930
RANGER
GOODS/SERVICES: SHOT SHELLS AND CARTRIDGES
SERIAL NO.: 71-195,225
REG. NO.: 191,722
REGISTERED: November 18, 1924
FEDERAL CARTRIDGE COMPANY - TRADEMARKS - FRANCE
HI SHOK
GOODS/SERVICES: ARMES A FEU; MUNITIONS ET PROJECTILES;
EXPLOSIFS; FEUX D'ARTIFICES.
APPLICATION NUMBER: 953454
REGISTRATION NUMBER: 1487505
RENEWED: 29 Juillet 1998 (July 29, 1998)
APPLICATION DATE: 09 Septembre 1988 (September 9, 1988)
HI POWER et element figuratif (and Design)
GOODS/SERVICES: ARMES A FEU; MUNITIONS ET PROJECTILES;
EXPLOSIFS; FEUX D'ARTIFICES.
APPLICATION NUMBER: 953453
REGISTRATION NUMBER: 1487504
RENEWED: 29 Juillet 1998 (July 29, 1998)
APPLICATION DATE: 09 Septembre 1988 (September 9, 1988)
FEDERAL
GOODS/SERVICES: ARMES A FEU; MUNITIONS ET PROJECTILES;
EXPLOSIFS; FEUX D'ARTIFICES.
APPLICATION NUMBER: 953451
REGISTRATION NUMBER: 1487502
RENEWED: 29 Juillet 1998 (July 29, 1998)
APPLICATION DATE: 09 Septembre 1988 (September 9, 1988)
PREMIUM
APPLICATION NUMBER: 273412
REGISTRATION NUMBER: 1045425
APPLICATION DATE: 28 Mars 1978 (March 28, 1978)
FEDERAL CARTRIDGE COMPANY - TRADEMARKS - ITALY
GOLD MEDAL
GOODS/SERVICES: CARTUCCE PER FUCILI DA CACCIA.
APPLICATION NUMBER: 79 35337
REGISTRATION NUMBER: 379417
REGISTERED: 19 Novembre 1985 (November 19, 1985)
SIMMONS ONTDOOR CORPORATION - TRADEMARKS - UNITED KINGDOM
SIMONS
GOODS/SERVICES: BINOCULARS; TELESCOPIC SIGHTS; SHOOTING
GLASSES.
REGISTRATION NUMBER: 2109275
APPLICATION DATE: 05 September 1996 (September 5, 1996)
RED LINE
GOODS/SERVICES: BINOCULARS; TELESCOPIC SIGHTS; SHOOTING
GLASSES; ALL INCLUDED IN CLASS 9.
REGISTRATION NUMBER: 1571578
APPLICATION DATE: 09 May 1994 (May 9, 1994)
S and Design
GOODS/SERVICES: BINOCULARS; TELESCOPIC SIGHTS; SHOOTING
GLASSES: ALL INCLUDED IN CLASS 9.
REGISTRATION NUMBER: 1571240
APPLICATION DATE: 09 May 1994 (May 9, 1994)
DEERFIELD
GOODS/SERVICES: BINOCULARS; TELESCOPIC SIGHTS; SHOOTING
GLASSES; ALL INCLUDED IN CLASS 9.
REGISTRATION NUMBER: 1571238
APPLICATION DATE: 09 May 1994 (May 9, 1994)
PRO HUNTER
GOODS/SERVICES: BINOCULARS: TELESCOPIC SIGHTS; SHOOTING
GLASSES; ALL INCLUDED IN CLASS 9.
REGISTRATION NUMBER: B1571237
APPLICATION DATE: 09 May 1994 (May 9, 1994)
WHITETAIL
GOODS/SERVICES: BINOCULARS; TELESCOPIC SIGHTS; SHOOTING
GLASSES; ALL INCLUDED IN CLASS 9.
REGISTRATION NUMBER: 1571236
APPLICATION DATE: 09 May 1994 (May 9, 1994)
SIMMONS OUTDOOR CORPORATION - TRADEMARKS - U.S. FEDERAL
SPECTRUM
GOODS/SERVICES: BINOCULARS, TELESCOPES, SPOTTING SCOPES, SPYING
SCOPES AND RIFLE SCOPES
SERIAL NO.: 75-648,069
FILED: February 25, 1999
WILDERNESS
GOODS/SERVICES: BINOCULARS AND SPOTTING SCOPES
SERIAL NO.: 75-643,630
FILED: February 19, 1999
LASER MAG
GOODS/SERVICES: RIFLE SCOPES; BINOCULARS, MONOCULARS AND
SPOTTING SCOPES ALL FEATURING A RANGE FINDING MECHANISM
SERIAL NO.: 75-305,376
FILED: June 9, 1997
SMART RETICLE
GOODS/SERVICES: VIEWING DEVICE EMPLOYED IN OPTICAL INSTRUMENTS,
NAMELY, RIFLE SCOPES, NOT CONTAINING ANY ELECTRONIC
COMPONENTS
SERIAL NO.: 75-180,570
REG. NO.: 2,166,494
REGISTERED: June 16, 1998
ALL AROUND CAMO
GOODS/SERVICES: FINISH SOLD AS A COMPONENT OF BINOCULARS,
MONOCULARS
SERIAL NO.: 74-641,784
REG. NO.: 2,072,314
REGISTERED: June 17, 1997
22MAG
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-610,330
REG. NO.: 1,939,811
REGISTERED: December 5, 1995
DEERFIELD
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-606,500
REG. NO.: 1,937,166
REGISTERED: November 21, 1995
SIMMONS
GOODS/SERVICES: RIFLE SCOPES, BINOCULARS, SHOOTING GLASSES,
TELESCOPES AND SPOTTING SCOPES
SERIAL NO.: 74-605,169
REG. NO.: 1,979,311
REGISTERED: June 11, 1996
DEERFIELD
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-605,123
FIRST USE: November 1, 1989 (Intl Class 9)
OMNISCOPE
GOODS/SERVICES: OPTICAL APPARATUS THAT CAN BE USED AS A
MONOCULAR, SPOTTING SCOPE AND MAGNIFIER
SERIAL NO.: 74-601,819
REG. NO.: 2,010,859
REGISTERED: October 22, 1996
AETEC
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-601,818
REG. NO.: 2,041,082
REGISTERED: February 25, 1997
PRODIAMOND
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-601,226
REG. NO.: 1,970,986
REGISTERED: April 30, 1996
FIREVIEW
GOODS/SERVICES: RIFLE SCOPES, BINOCULARS
SERIAL NO.: 74-595,788
REG. NO.: 2,074,221
REGISTERED: June 24, 1997
MASTER GUIDE
GOODS/SERVICES: BINOCULARS
SERIAL NO.: 74-590,205
REG. NO.: 2,081,926
REGISTERED: July 22, 1997
SILVERGRANITE
GOODS/SERVICES: FINISH SOLD AS A COMPONENT OF A RIFLE SCOPES
SERIAL NO.: 74-341,779
REG. NO.: 1,899,638
REGISTERED: June 13, 1995
MASTER RED DOT
GOODS/SERVICES: SIGHTING DEVICES FOR FIREARMS
SERIAL NO.: 74-295,806
REG. NO.: 1,849,218
REGISTERED: August 9, 1994
PROHUNTER
GOODS/SERVICES: SPORTING GOODS OPTICS; NAMELY, BINOCULARS,
SPOTTING SCOPES AND RIFLE SCOPES
SERIAL NO.: 74-115,995
REG. NO.: 1,843,482
REGISTERED: July 5, 1994
WHITETAIL CLASSIC
GOODS/SERVICES: BINOCULAR, TELESCOPIC SPOTTING SCOPES AND
PROTECTIVE EYEGLASSES
SERIAL NO.: 74-085,538
REG. NO.: 1,852,889
REGISTERED: September 6, 1994
WHITETAIL
GOODS/SERVICES: BINOCULARS, TELESCOPIC SPOTTING SCOPES AND
PROTECTIVE EYEGLASSES
SERIAL NO.: 74-085,537
REG. NO.: 1,841,191
REGISTERED: June 21, 1994
44 MAG
GOODS/SERVICES: TELESCOPIC RIFLE SCOPE
SERIAL NO.: 74-034,196
REG. NO.: 1,647,273
REGISTERED: June 11, 1991
BLACKGRANITE
GOODS/SERVICES: FINISH COATING SOLD AS A COMPONENT OF
TELESCOPIC RIFLE SCOPES
SERIAL NO.: 74-030,152
REG. NO.: 1,628,220
REGISTERED: December 18, 1990
GOLD MEDAL
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 74-030,142
REG. NO.: 1,956,942
REGISTERED: February 20, 1996
VRC
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 73-699,610
REG. NO.: 1,495,711
REGISTERED: July 12, 1988
DEER FIELD
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 73-699,609
REG. NO.: 1,497,629
REGISTERED: July 26, 1988
PRESIDENTIAL
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 73-591,736
REG. NO.: 1,419,846
REGISTERED: December 9, 1986
DESIGN ONLY
GOODS/SERVICES: RIFLE SCOPES
SERIAL NO.: 73-581,289
REG. NO.: 1,426,117
REGISTERED: January 20, 1987
MONO-TUBE
GOODS/SERVICES: TELESCOPIC SIGHTS FOR GUNS
SERIAL NO.: 73-444,777
REG. NO.: 1,308,738
REGISTERED: December 11, 1984
S and Design
GOODS/SERVICES: BINOCULARS, TELESCOPIC SIGHTS AND SHOOTING
GLASSES
SERIAL NO.: 73-435,344
REG. NO.: 1,419,773
REGISTERED: December 9, 1986
SIMMONS
GOODS/SERVICES: BINOCULARS, TELESCOPIC SIGHTS AND SHOOTING
GLASSES
SERIAL NO.: 73-435,343
REG. NO.: 1,339,789
REGISTERED: June 4, 1985
SIMMONS OUTDOOR CORPORATION - TRADEMARKS - U.S. STATE
44 MAG Stylized Letters
STATE: Florida
GOODS/SERVICES: RIFLESCOPES AND TELESCOPIC LENSES
REG. NO.: T13,014
REGISTERED: June 18, 1990
CTR MANUFACTURING - TRADEMARKS - U.S. FEDERAL
CTR
GOODS/SERVICES: WOOD HANDLING APPARATUS, NAMELY, SLASHER SAWS
SERIAL NO.: 73-598,345
REG. NO.: 1,423,630
REGISTERED: January 6, 1987
SCHEDULE 5B
License Agreements
Industrial & Power Equipment Group:
. Agreement between CTR Manufacturing, Inc. and Thomas E. Hamby, Jr.
dated February 25, 1987.
. Agreement between Blount, Inc., Stone & Wood, Inc. and John B.
Lansberry dated June 25, 1995.
Sporting Equipment Group:
. Agreement between Federal Cartridge Company and Trophy Bonded Bullets
Inc. dated November 1, 1991.
. Agreement between Federal Cartridge Company and Ormet Wah Chang dated
July 17, 1995.
. Agreement between Federal Cartridge Company and British Aerospace
Defense Royal Ordnance dated 1997.
. Agreement between Omark-CCI, Inc. and Hilti dated November 16, 1976.
. Agreement between Blount, Inc. and Hirtenberger AG is pending.
. Agreement between Blount, Inc. and Steve Miller/Bear Creek Supply
dated July 28, 1999.
. Agreement between Simmons Outdoor Corporation and Realtree dated
January 1, 1998.
. Agreement between Simmons Outdoor Corporation and Laser Technology,
Inc.(Bushnell) dated January 1, 1998.
. Agreement between Blount, Inc. and Blackie Collins Knives, Inc. dated
August 10, 1994.
. Agreement between Blount, Inc. and Spartan-Realtree products dated
May 19, 1994.
. Agreement between Blount, Inc. and Cedar Technologies, Inc. dated
July 1, 1987.
. Agreement between Blount, Inc. and Tico Industries, Inc. dated
January 12, 1996.
. Agreement between Blount, Inc. and National Rifle Association of
America dated April 2, 1996.
. Agreement between Blount, Inc. and Reloader's Research dated June 27,
1995.
. Agreement between Blount, Inc. and Ronald O. Rogers dated October 26,
1992.
. Agreement between Blount, Inc., Judith Lesh and Donna Waske dated
June 20, 1989.
. Agreement between Omark Industries, Inc. and Facemaker Industries
dated July 1, 1985.
. Agreement between Blount, Inc. and Edward F. Tuftee dated November
20, 1995.
. Agreement between Blount, Inc. and Greg Mushial dated May 13, 1997.
. Agreement between Blount, Inc. and Accurate Arms Company dated July
23, 1997.
. Agreement between Blount, Inc. and Barnes Bullets, Inc. dated July
17, 1997.
. Agreement between Blount, Inc. and Hodgdon Powder Company dated July
17, 1997.
. Agreement between Blount, Inc. and Hornady Manufacturing Company
dated July 30, 1997.
. Agreement between Blount, Inc. and Lyman Products Corp. dated October
14, 1997.
. Agreement between Blount, Inc. and Nosler, Inc. dated August 5, 1997.
. Agreement between Blount, Inc. and Sierra Bullets dated July 17,
1997.
. Agreement between Blount, Inc. and Vihtavouri Oy dated August 25,
1997.
Outdoor Products Group:
. Agreement between Dixon Industries, Inc. and Ronald Brimager dated
April 22, 1999.
. Agreement between Blount, Inc. and Torcon, Inc. dated October 28,
1996..
. Agreement between Blount, Inc. and Olympia Industrial, Inc. dated
October 11, 1996.
. Agreement between Blount, Inc. and John Deere dated August 15, 1998.
. Agreement between Frederick Manufacturing Company and Vermeer
Manufacturing Company dated October 25, 1995.
. Agreement between Blount, Inc. and Stihl dated May 9, 1996.
. Agreement between Blount, Inc. and Sandvik dated September 21, 1995.
. Agreement between Blount, Inc. and Shindaiwa dated June 28, 1996.
. Agreement between Blount, Inc. and Deltapoint Publishing dated March
17, 1993.
. Agreement between Blount, Inc. and Oregon Advanced Technology Center
(OATC) dated June 1996.
. Agreement between Blount, Inc. and Center for Occupational Research &
Development (CORD) dated October 1996.
SCHEDULE 6
EXISTING LIENS
See Annex I to Schedule 6
Annex 1 to
Non-Shared Guarantee and
Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ______ __, ____made by
___________________________, a ____________ corporation (the "Additional
Guarantor"), in favor of Bank of America, N.A., as administrative agent (in
such capacity, the "Administrative Agent") for the banks and other financial
institutions (the "Lenders") parties to the Credit Agreement referred to
below. All capitalized terms not defined herein shall have the meaning
ascribed to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, BLOUNT INTERNATIONAL, INC., a corporation duly organized
and validly existing under the law of the State of Delaware ("Holdings"),
BLOUNT, INC., a corporation duly organized and validly existing under the law
of the State of Delaware (the "Borrower"), the Lenders, certain other parties
and the Administrative Agent have entered into a Credit Agreement, dated as
of August 19, 1999 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, Holdings, the
Borrower and certain Affiliates of the Borrower (other than the Additional
Guarantor) have entered into the Non-Shared Guarantee and Collateral
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Non-Shared Guarantee and Collateral
Agreement") in favor of the Administrative Agent for the benefit of the
Lenders;
WHEREAS, the Credit Agreement requires the Additional Guarantor
to become a party to the Non-Shared Guarantee and Collateral Agreement as a
"Guarantor" (and thereby a "Grantor") thereunder; and
WHEREAS, the Additional Guarantor has agreed to execute and
deliver this Assumption Agreement in order to become a party to the Non-
Shared Guarantee and Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Non-Shared Guarantee and Collateral Agreement. By
executing and delivering this Assumption Agreement, the Additional Guarantor,
as provided in Section 8.14 of the Non-Shared Guarantee and Collateral
Agreement, hereby becomes a party to the Non-Shared Guarantee and Collateral
Agreement as a Guarantor (and thereby a Grantor) thereunder with the same
force and effect as if originally named therein as a Guarantor (and a
Grantor) and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities of a Guarantor (and a
Grantor) thereunder. The information set forth in Annex I-A hereto is hereby
added to the information set forth in Schedules _______________ **** to the
Non-Shared Guarantee and Collateral Agreement. The Additional Guarantor
hereby represents and warrants that each of the representations and
warranties contained in Section 4 of the Non-Shared Guarantee and Collateral
Agreement is true and correct on and as the date hereof (after giving effect
to this Assumption Agreement) as if made on and as of such date.`
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above
written.
[ADDITIONAL GUARANTOR]
By: ___________________________
Name:
Title:
<PAGE>
EXHIBIT A-2
[FORM OF SHARED COLLATERAL PLEDGE AGREEMENT]
SHARED COLLATERAL PLEDGE AGREEMENT
made by
BLOUNT INTERNATIONAL, INC.
BLOUNT, INC.
and certain of its Subsidiaries
in favor of
BANK OF AMERICA, N.A.
as Collateral Trustee
Dated as of August 19, 1999
TABLE OF CONTENTS Page
SECTION 1. DEFINED TERMS 2
1.1 Definitions. 2
1.2 Other Definitional Provisions. 4
SECTION 2. GRANT OF SECURITY INTEREST 4
SECTION 3. REPRESENTATIONS AND WARRANTIES 4
3.1 Representations in Credit Agreement 4
3.2 Title; No Other Liens 4
3.3 Perfected First Priority Liens 4
3.4 Chief Executive Office 5
3.5 Pledged Securities. 5
SECTION 4. COVENANTS 6
4.1 Maintenance of Perfected Security Interest; Further
Documentation 6
4.2 Changes in Locations, Name, etc. 6
4.3 Notices 6
4.4 Pledged Securities 7
SECTION 5. REMEDIAL PROVISIONS 8
5.1 Pledged Stock 8
5.2 Proceeds to be Turned Over To Collateral Trustee 9
5.3 Application of Proceeds 9
5.4 Code and Other Remedies 9
5.5 Waiver; Deficiency 10
SECTION 6. THE COLLATERAL TRUSTEE 10
6.1 Collateral Trustee's Appointment as Attorney-in-Fact, etc. 10
6.2 Duty of Collateral Trustee 11
6.3 Execution of Financing Statements 12
6.4 Authority of Collateral Trustee 12
SECTION 7. MISCELLANEOUS 12
7.1 Amendments in Writing 12
7.2 Notices 12
7.3 No Waiver by Course of Conduct; Cumulative Remedies 12
7.4 Enforcement Expenses; Indemnification 13
7.5 Successors and Assigns 13
7.6 Counterparts 13
7.7 Severability 13
7.8 Section Headings 14
7.9 GOVERNING LAW 14
7.10 Submission To Jurisdiction; Waivers 14
7.11 Acknowledgements 14
7.12 Additional Pledgors 15
7.13 Releases 15
7.14 WAIVER OF JURY TRIAL 15
SHARED COLLATERAL PLEDGE AGREEMENT
SHARED COLLATERAL PLEDGE AGREEMENT, dated as of August 19, 1999,
made by BLOUNT INTERNATIONAL, INC., a Delaware corporation ("Holdings"),
BLOUNT, INC., a Delaware corporation (the "Borrower"), each of the
Subsidiaries of the Borrower signatory hereto (Holdings, the Borrower, each
such Subsidiary, together with any other Subsidiary that may become a party
hereto as provided herein, the "Pledgors"), in favor of BANK OF AMERICA,
N.A., as collateral trustee (in such capacity, the "Collateral Trustee") for
the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, Holdings and the Borrower are parties to (a) the Credit
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Holdings, the
Borrower, the several banks and other financial institutions or entities from
time to time parties thereto (the "Lenders"), Lehman Brothers Inc., as
advisor, book manager and lead arranger (in such capacity, the "Arranger"),
Lehman Commercial Paper Inc., as syndication agent (in such capacity, the
"Syndication Agent"), and Bank of America, N.A., as administrative agent (in
such capacity, the "Administrative Agent") and (b) the Indenture dated as of
June 18, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Existing Senior Notes Indenture") among the Borrower, Holdings and
Lasalle National Bank, as Trustee (the "Indenture Trustee");
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Pledgor, and the Borrower and the other
Pledgors are engaged in related businesses, and each Pledgor will derive
substantial direct and indirect benefit from the making of the extensions of
credit under the Credit Agreement;
WHEREAS, pursuant to the provisions of the Existing Senior Notes
Indenture, the Borrower and Holdings may not, and may not permit any of their
respective Subsidiaries to, secure the Credit Agreement Obligations (as
defined below) with a Mortgage on any Principal Property or any shares of
Capital Stock or Debt (as such terms are defined in the Existing Senior Notes
Indenture) of the Borrower without equally and ratably securing the Existing
Senior Note Obligations (as defined below);
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under
the Credit Agreement that the Pledgors shall have executed and delivered this
Agreement to the Collateral Trustee for the ratable benefit of the Secured
Parties (as defined below); and
WHEREAS, each of Holdings, the Borrower and each Subsidiary
Guarantor is required pursuant to this Agreement to pledge (a) all of the
Capital Stock of the Borrower and each Subsidiary Guarantor which it now or
hereafter owns, (b) all of the Capital Stock of each Foreign Subsidiary which
it now or hereafter owns (but not more than 65% of the outstanding voting
Capital Stock of such Foreign Subsidiary) and (c) all Debt (as such term is
defined in the Existing Senior Notes Indenture) owing to it by any of
Holdings, the Borrower or any of its Subsidiaries ("Intercompany Debt");
NOW, THEREFORE, in consideration of the premises and to induce
the Agents and the Lenders to enter into the Credit Agreement and to induce
the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Pledgor hereby agrees with the Collateral Trustee, for the
ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Shared Collateral Pledge Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to any Agent or any Lender (or, in
the case of any Hedge Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or
in connection with, the Credit Agreement, this Agreement, the other Credit
Documents, any Letter of Credit or any Hedge Agreement entered into by the
Borrower with any Lender (or any Affiliate of any Lender) or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Agents or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Collateral": as defined in Section 2.
"Collateral Account": any collateral account maintained by the
Collateral Trustee as provided in Section 5.2 or 5.3.
"Credit Agreement Obligations": (i) in the case of the Borrower,
the Borrower Obligations, and (ii) in the case of each Guarantor, its
Guarantor Obligations.
"Existing Senior Note Obligations": the obligations (without
duplication) of the Borrower and Holdings to pay the principal of and
premium, if any and interest on, the Existing Senior Notes.
"Foreign Issuer": any Foreign Subsidiary of the Borrower;
provided that, as of the date hereof, the only Foreign Subsidiaries whose
Capital Stock is subject to the Lien effected by this Agreement are those
identified on Schedule 1 hereto.
"Guarantee Agreement" the Non-Shared Guarantee and Collateral
Agreement executed by the Guarantors and dated as of the date hereof.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with the Guarantee Agreement (including, without limitation,
Section 2 thereof) or any other Credit Document to which such Guarantor is a
party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Agents or to the Lenders that are required to be paid by such Guarantor
pursuant to the terms of this Agreement or any other Credit Document).
"Guarantors": the collective reference to each Obligor other than
the Borrower.
"Issuers": the collective reference to each issuer of a Pledged
Security.
"New York UCC": the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Pledged Debt": all Intercompany Debt, including all Pledged
Notes, and all Intercompany Debt not evidenced by promissory notes.
"Pledged Notes": all promissory notes evidencing Intercompany
Debt listed on Schedule 2, and all other promissory notes evidencing
Intercompany Debt at any time.
"Pledged Securities": the collective reference to the Pledged
Debt and the Pledged Stock.
"Pledged Stock": the shares (or quotas) of Capital Stock listed
on Schedule 1, together with any other shares, quotas, stock certificates,
options or rights of any nature whatsoever in respect of the Capital Stock of
any Person that may be issued or granted to, or held by, any Pledgor while
this Agreement is in effect; provided that, with respect to any Capital Stock
(including quotas) of a Foreign Issuer owned by a Pledgor, "Pledged Stock"
shall mean no more than 65% of the voting Capital Stock (including quotas) of
such Foreign Issuer.
"Proceeds": all "proceeds" as such term is defined in Section 9-
306(l) of the Uniform Commercial Code in effect in the State of New York on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Secured Obligations": without duplication, (i) the Credit
Agreement Obligations and (ii) the Existing Senior Note Obligations; provided
that the "Secured Obligations" shall not in any event include any obligations
in respect of debt securities issued under the Existing Senior Notes
Indenture after the date hereof.
"Secured Parties": (i) the Lenders (including the Issuing Bank,
the Swing Line Lender and any Lender or Affiliate of a Lender party to one or
more Hedge Agreements), (ii) the Agents, (iii) the holders of the Existing
Senior Notes and (iv) the Indenture Trustee.
"Securities Act": the Securities Act of 1933, as amended.
1.2 Other Definitional Provisions. (a) The words
"hereof," "herein", "hereto" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral
or any part thereof, when used in relation to a Pledgor, shall refer to such
Pledgor's Collateral or the relevant part thereof.
SECTION 2. GRANT OF SECURITY INTEREST
Each Pledgor hereby assigns and transfers to the Collateral
Trustee, and hereby grants to the Collateral Trustee, for the ratable benefit
of the Secured Parties, a security interest in all Pledged Securities now
owned or at any time hereafter acquired by such Pledgor or in which such
Pledgor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Pledgor's Secured Obligations
and to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing and all collateral security and guarantees given by
any Person with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Pledgor hereby represents and
warrants to the Collateral Trustee and the Secured Parties that:
3.1 Representations in Credit Agreement. In the case of
each Guarantor, the representations and warranties set forth in Section 4 of
the Credit Agreement as they relate to such Guarantor or to the Credit
Documents to which such Guarantor is a party, each of which is hereby
incorporated herein by reference, are true and correct, and the Collateral
Trustee and each Lender shall be entitled to rely on each of them as if they
were fully set forth herein; provided that each reference in each such
representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 3.1, be deemed to be a reference to such Guarantor's
knowledge.
3.2 Title; No Other Liens. Except for the security
interest granted to the Collateral Trustee for the ratable benefit of the
Secured Parties pursuant to this Agreement and the other Liens permitted to
exist on the Collateral by the Credit Agreement, and such Pledgor owns each
item of the Collateral free and clear of any and all Liens or claims of
others. No financing statement or other public notice with respect to all or
any part of the Collateral is on file or of record in any public office,
except such as have been filed in favor of the Collateral Trustee, for the
ratable benefit of the Secured Parties, pursuant to this Agreement or as are
permitted by the Credit Agreement.
3.3 Perfected First Priority Liens. Prior to or
concurrently with the execution and delivery of this Agreement, each Pledgor
shall deliver to the Collateral Trustee all certificates specified on
Schedule 1, accompanied by undated stock powers effectively endorsed in
blank, and all promissory notes specified on Schedule 2, endorsed (without
recourse) in blank by the Pledgor thereof. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other
actions specified on Schedule 3 (which, in the case of all filings and other
documents referred to on said Schedule, have been delivered to the
Administrative Agent in completed and duly executed form) will constitute
valid perfected security interests in all of the Collateral in favor of the
Collateral Trustee, for the ratable benefit of the Secured Parties, as
collateral security for such Pledgor's Secured Obligations, enforceable in
accordance with the terms hereof against all creditors of such Pledgor and
any Persons purporting to purchase any Collateral from such Pledgor and (b)
are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens.
3.4 Chief Executive Office. On the date hereof, such
Pledgor's jurisdiction of organization and the location of such Pledgor's
chief executive office or sole place of business are specified on Schedule 4.
3.5 Pledged Securities. (a) On the date hereof, the
shares (or quotas) of Capital Stock listed on Schedule 1 owned by such
Pledgor constitute all of the issued and outstanding shares of all classes of
the Capital Stock of each Issuer owned by such Pledgor (or, in the case of a
Foreign Issuer, 65% of the issued and outstanding voting Capital Stock of
such Foreign Issuer owned by such Pledgor).
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and
binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement.
(e) The Borrower, the managing member of BI, L.L.C., a Delaware
limited liability company ("BI L.L.C."),(i) unconditionally consents to the
Transfer (as defined in the Operating Agreement of BI, L.L.C. effective as of
March 1, 1997, the "Operating Agreement") of all of the membership interests
in BI, L.L.C. (the "Membership Interests") to the Collateral Trustee pursuant
to this Agreement and (ii) unconditionally consents to any subsequent
Transfer (as defined in the Operating Agreement) of the Membership Interests
by the Collateral Trustee pursuant to this Agreement. Each Member (as
defined in the Operating Agreement) agrees (w) that notwithstanding anything
to the contrary under the Operating Agreement (including, without limitation,
Article IX), any Transfer pursuant to clause (i) and (ii) above shall not be
subject to any of the terms and conditions of the Operating Agreement, (x)
that any such Transfer shall be given full force and effect for the purposes
of the Operating Agreement, (y) to waive any "right of first refusal" which
may arise pursuant to Section 11.5 of the Operating Agreement and (z) that
this Section 4.4(e) shall constitute an amendment to and waiver of the
Operating Agreement to the extent provided herein, and such amendment and
waiver shall continue in full force and effect for the term of this
Agreement.
SECTION 4. COVENANTS
Each Pledgor covenants and agrees with the Collateral Trustee
that, from and after the date of this Agreement until the Secured Obligations
shall have been paid in full, and the Commitments under the Credit shall have
terminated:
4.1 Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Pledgor shall maintain the security interest
created by this Agreement as a perfected security interest having at least
the priority described in Section 3.3 and shall defend such security interest
against the claims and demands of all Persons whomsoever.
(b) Such Pledgor will furnish to the Collateral Trustee from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Collateral Trustee may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request
of the Collateral Trustee, and at the sole expense of such Pledgor, such
Pledgor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
Collateral Trustee may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby.
4.2 Changes in Locations, Name, etc. Such Pledgor will
not, except upon 15 days' prior written notice to the Collateral Trustee and
the Agents and delivery to the Collateral Trustee of all additional executed
financing statements and other documents reasonably requested by the
Collateral Trustee to maintain the validity, perfection and priority of the
security interests provided for herein:
(i) change the location of its chief executive office or sole
place of business from that referred to in Section 4.4; or
(ii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Collateral Trustee in
connection with this Agreement would become misleading.
4.3 Notices. Such Pledgor will advise the Collateral
Trustee and the Agents promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or
Liens permitted under the Credit Agreement) on any of the Collateral which
would adversely affect the ability of the Collateral Trustee to exercise any
of its remedies hereunder; and
(b) of the occurrence of any other event which could reasonably
be expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
4.4 Pledged Securities. (a) If such Pledgor shall
become entitled to receive or shall receive any stock certificate (including,
without limitation, any certificate representing a stock dividend or a
distribution in connection with any reclassification, increase or reduction
of capital or any certificate issued in connection with any reorganization),
additional quotas, option or rights in respect of the Capital Stock of any
Issuer, whether in addition to, in substitution of, as a conversion of, or in
exchange for, any shares (or quotas) of the Pledged Stock, or otherwise in
respect thereof, such Pledgor shall accept the same as the agent of the
Collateral Trustee and the Secured Parties, hold the same in trust for the
Collateral Trustee and the Secured Parties and deliver the same forthwith to
the Collateral Trustee in the exact form received, effectively endorsed by
such Pledgor to the Collateral Trustee, if required, together with an undated
stock power covering such certificate duly executed in blank by such Pledgor
and with, if the Collateral Trustee so requests, signature guaranteed, to be
held by the Collateral Trustee, subject to the terms hereof, as additional
collateral security for the Obligations (provided that in no event shall any
Pledgor by required to so hold in trust or deliver to the Collateral Trustee
certificates representing more than 65% of the issued and outstanding voting
Capital Stock of any Foreign Issuer). Any sums paid upon or in respect of
the Pledged Securities upon the liquidation or dissolution of any Issuer
shall be paid over to the Collateral Trustee to be held by it hereunder as
additional collateral security for the Secured Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged
Securities or any property shall be distributed upon or with respect to the
Pledged Securities pursuant to the recapitalization or reclassification of
the capital of any Issuer or pursuant to the reorganization thereof, the
property so distributed shall, unless otherwise subject to a perfected
security interest in favor of the Collateral Trustee, be delivered to the
Collateral Trustee to be held by it hereunder as additional collateral
security for the Secured Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Securities shall be received by
such Pledgor, such Pledgor shall, until such money or property is paid or
delivered to the Collateral Trustee, hold such money or property in trust for
the Lenders, segregated from other funds of such Pledgor, as additional
collateral security for the Secured Obligations.
(b) Without the prior written consent of the Collateral Trustee
and the Agents, such Pledgor will not (i) vote to enable, or take any other
action to permit, any Issuer to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any stock or other equity securities of any
nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Pledged Securities or
Proceeds thereof (except pursuant to a transaction expressly permitted by the
Credit Agreement), (iii) create, incur or permit to exist any Lien or option
in favor of, or any claim of any Person with respect to, any of the Pledged
Securities or Proceeds thereof, or any interest therein, except for the
security interests created by this Agreement or (iv) enter into any agreement
or undertaking restricting the right or ability of such Pledgor or the
Collateral Trustee to sell, assign or transfer any of the Pledged Securities
or Proceeds thereof.
(c) In the case of each Pledgor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to
the Pledged Securities issued by it and will comply with such terms insofar
as such terms are applicable to it, (ii) it will notify the Collateral
Trustee promptly in writing of the occurrence of any of the events described
in Section 4.5(a) with respect to the Pledged Securities issued by it and
(iii) the terms of Section 5.1(c) shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to Section 5.1(c)
with respect to the Pledged Securities issued by it.
SECTION 5. REMEDIAL PROVISIONS
5.1 Pledged Stock. (a) Unless an Event of Default shall
have occurred and be continuing and the Collateral Trustee shall have given
notice to the relevant Pledgor of the Collateral Trustee's intent to exercise
its corresponding rights pursuant to Section 5.1(b), each Pledgor shall be
permitted to receive all cash dividends paid in respect of the Pledged Stock
and all payments made in respect of the Pledged Debt, in each case paid in
the normal course of business of the relevant Issuer and consistent with past
practice, to the extent permitted in the Credit Agreement, and to exercise
all voting and corporate rights with respect to the Pledged Securities;
provided, however, that no vote shall be cast or corporate right exercised or
other action taken which, in the Collateral Trustee's reasonable judgment,
would impair the Collateral or which would be inconsistent with or result in
any violation of any provision of the Credit Agreement, this Agreement, any
other Credit Document or the Existing Senior Notes Indenture.
(b) If an Event of Default shall occur and be continuing and the
Collateral Trustee shall give notice of its intent to exercise such rights to
the relevant Pledgor or Pledgors, (i) the Collateral Trustee shall have the
right to receive any and all cash dividends, payments or other Proceeds paid
in respect of the Pledged Securities and make application thereof to the
Secured Obligations in the order set forth in Section 5.3, and (ii) any or
all of the Pledged Stock and Pledged Notes shall be registered in the name of
the Collateral Trustee or its nominee, and the Collateral Trustee or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Pledged Securities as if it were the absolute
owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Pledged Securities upon the merger,
consolidation, reorganization, recapitalization or other fundamental change
in the corporate structure of any Issuer, or upon the exercise by any Pledgor
or the Collateral Trustee of any right, privilege or option pertaining to
such Pledged Securities, and in connection therewith, the right to deposit
and deliver any and all of the Pledged Securities with any committee,
depositary, transfer agent, registrar or other designated agency upon such
terms and conditions as the Collateral Trustee may determine), all without
liability except to account for property actually received by it, but the
Collateral Trustee shall have no duty to any Pledgor to exercise any such
right, privilege or option and shall not be responsible for any failure to do
so or delay in so doing.
(c) Each Pledgor hereby authorizes and instructs each Issuer of
any Pledged Securities pledged by such Pledgor hereunder to (i) comply with
any instruction received by it from the Collateral Trustee in writing that
(x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other
or further instructions from such Pledgor, and each Pledgor agrees that each
Issuer shall be fully protected in so complying, and (ii) unless otherwise
expressly permitted hereby, pay any dividends or other payments with respect
to the Pledged Securities directly to the Collateral Trustee.
5.2 Proceeds to be Turned Over To Collateral Trustee. If
an Event of Default shall occur and be continuing, all Proceeds received by
any Pledgor consisting of cash, checks and other near-cash items shall be
held by such Pledgor in trust for the Collateral Trustee and the Secured
Parties, segregated from other funds of such Pledgor, and shall, forthwith
upon receipt by such Pledgor, be turned over to the Collateral Trustee in the
exact form received by such Pledgor (duly endorsed by such Pledgor to the
Collateral Trustee, if required). All Proceeds received by the Collateral
Trustee hereunder shall be held by the Collateral Trustee in a Collateral
Account maintained under its sole dominion and control. All Proceeds while
held by the Collateral Trustee in a Collateral Account (or by such Pledgor in
trust for the Collateral Trustee and the Lenders) shall continue to be held
as collateral security for all the Secured Obligations and shall not
constitute payment thereof until applied as provided in accordance with
Section 5.3.
5.3 Application of Proceeds. The Collateral Trustee
shall apply the proceeds of any collection or sale of the Collateral, as well
as any Collateral consisting of cash, in the manner set forth in the
Collateral Trust Agreement; provided, however, that if the Collateral Trust
Agreement shall not be in effect, such proceeds and cash shall be applied at
such intervals as may be agreed upon by the Borrower and the Collateral
Trustee, or, if an Event of Default shall have occurred and be continuing, at
any time at the Collateral Trustee's election, the Collateral Trustee may
apply all or any part of Proceeds constituting Collateral, whether or not
held in any Collateral Account, and any proceeds of the guarantee set forth
in Section 2 of the Guarantee Agreement, in payment of the Secured
Obligations in the following order:
First, to pay incurred and unpaid fees and expenses of the Agents
or the Collateral Trustee under the Credit Documents;
Second, to payment of amounts then due and owing and remaining
unpaid in respect of the Credit Agreement Obligations, pro rata among
the Lenders according to the amounts of the Credit Agreement
Obligations then due and owing and remaining unpaid to the Lenders;
Third, to prepayment of the Credit Agreement Obligations, pro
rata among the Lenders according to the amounts of the Credit Agreement
Obligations then held by the Lenders; and
Fourth, any balance of such Proceeds remaining after the Credit
Agreement Obligations shall have been paid in full, no Letters of
Credit shall be outstanding and the Commitments shall have terminated
shall be paid over to the Borrower or to whomsoever may be lawfully
entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default
shall occur and be continuing, the Collateral Trustee, on behalf of the
Secured Parties, may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights and
remedies of a secured party under the New York UCC or any other applicable
law. Without limiting the generality of the foregoing, the Collateral
Trustee, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below) to or upon any Pledgor or any other Person (all and each
of which demands, defenses, advertisements and notices are hereby waived),
may in such circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith sell, lease,
assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Trustee or any Secured
Party or elsewhere upon such terms and conditions as it may deem advisable
and at such prices as it may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. The Collateral Trustee or
any Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption in any Pledgor, which right or equity is hereby
waived and released. Each Pledgor further agrees, at the Collateral
Trustee's request, to assemble the Collateral and make it available to the
Collateral Trustee at places which the Collateral Trustee shall reasonably
select, whether at such Pledgor's premises or elsewhere. The Collateral
Trustee shall apply the net proceeds of any action taken by it pursuant to
this Section 5.4, after deducting all reasonable costs and expenses of every
kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Collateral Trustee and the Secured Parties hereunder,
including, without limitation, reasonable attorneys' fees and disbursements,
to the payment in whole or in part of the Secured Obligations, in such order
as the Collateral Trustee may elect, and only after such application and
after the payment by the Collateral Trustee of any other amount required by
any provision of law, including, without limitation, Section 9-504(l)(c) of
the New York UCC, need the Collateral Trustee account for the surplus, if
any, to any Pledgor. To the extent permitted by applicable law, each Pledgor
waives all claims, damages and demands it may acquire against the Collateral
Trustee or any Secured Party arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable
and proper if given at least 10 days before such sale or other disposition.
5.5 Waiver; Deficiency. Each Pledgor waives and agrees
not to assert any rights or privileges which it may acquire under Section 9-
112 of the New York UCC. Each Pledgor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay its Secured Obligations and the fees and disbursements of
any attorneys employed by the Collateral Trustee or any Secured Party to
collect such deficiency.
SECTION 6. THE COLLATERAL TRUSTEE
6.1 Collateral Trustee's Appointment as Attorney-in-Fact,
etc. (a) Each Pledgor hereby irrevocably constitutes and appoints the
Collateral Trustee and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Pledgor and in the name of
such Pledgor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the
generality of the foregoing, each Pledgor hereby gives the Collateral Trustee
the power and right, on behalf of such Pledgor, without notice to or assent
by such Pledgor, to do any or all of the following:
(i) execute, in connection with any sale provided for in Section
5.4, any endorsements, assignments or other instruments of conveyance
or transfer with respect to the Collateral; and
(ii) (1) direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Collateral Trustee or as the Collateral
Trustee shall direct; (2) ask or demand for, collect, and receive
payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out
of any Collateral; (3) sign and indorse any notices and other documents
in connection with any of the Collateral; (4) commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof
and to enforce any other right in respect of any Collateral; (5) defend
any suit, action or proceeding brought against such Pledgor with
respect to any Collateral; (6) settle, compromise or adjust any such
suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Collateral Trustee may deem appropriate
and (7) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Collateral Trustee were the absolute owner
thereof for all purposes, and do, at the Collateral Trustee's option
and such Pledgor's expense, at any time, or from time to time, all acts
and things which the Collateral Trustee deems necessary to protect,
preserve or realize upon the Collateral and the Collateral Trustee's
and the Secured Parties' security interests therein and to effect the
intent of this Agreement, all as fully and effectively as such Pledgor
might do.
Anything in this Section 6.1(a) to the contrary notwithstanding,
the Collateral Trustee agrees that it will not exercise any rights under the
power of attorney provided for in this Section 6.1(a) unless an Event of
Default shall have occurred and be continuing.
(b) If any Pledgor fails to perform or comply with any of its
agreements contained herein, the Collateral Trustee, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Collateral Trustee incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at
which interest would then be payable on past due Revolving Credit Loans that
are Base Rate Loans under the Credit Agreement, from the date of payment by
the Collateral Trustee to the date reimbursed by the relevant Pledgor, shall
be payable by such Pledgor to the Collateral Trustee on demand.
(d) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
6.2 Duty of Collateral Trustee. The Collateral Trustee's
sole duty with respect to the custody, safekeeping and physical preservation
of the Collateral in its possession, under Section 9-207 of the New York UCC
or otherwise, shall be to deal with it in the same manner as the Collateral
Trustee deals with similar property for its own account. Neither the
Collateral Trustee, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of any Collateral upon
the request of any Pledgor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Collateral Trustee and the Secured Parties hereunder are
solely to protect the Collateral Trustee's and the Secured Parties' interests
in the Collateral and shall not impose any duty upon the Collateral Trustee
or any Lender to exercise any such powers. The Collateral Trustee and the
Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any
of their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
6.3 Execution of Financing Statements. Pursuant to
Section 9-402 of the New York UCC and any other applicable law, each Pledgor
authorizes the Collateral Trustee to file or record financing statements and
other filing or recording documents or instruments with respect to the
Collateral without the signature of such Pledgor in such form and in such
offices as the Collateral Trustee reasonably determines appropriate to
perfect the security interests of the Collateral Trustee under this
Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
6.4 Authority of Collateral Trustee. Each Pledgor
acknowledges that the rights and responsibilities of the Collateral Trustee
under this Agreement with respect to any action taken by the Collateral
Trustee or the exercise or non-exercise by the Collateral Trustee of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Collateral Trustee and the Pledgors, the Collateral Trustee shall be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and no Pledgor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or
provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Trustee and each Pledgor or Pledgors with
respect to which such waiver, amendment or modification is to apply, subject
to any consent required in accordance with Section 10.1 of the Credit
Agreement.
7.2 Notices. All notices, requests and demands to or
upon the Collateral Trustee or any Pledgor hereunder shall be effected in the
manner provided for in Section 10.2 of the Credit Agreement; provided that
any such notice, request or demand to or upon (a) any Guarantor shall be
addressed to such Pledgor at the notice address of the Company provided in
Section 10.2 of the Credit Agreement and (b) the Indenture Trustee shall be
addressed to it as provided in the Existing Senior Notes Indenture.
7.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Collateral Trustee nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 7.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder.
No failure to exercise, nor any delay in exercising, on the part of the
Collateral Trustee or any other Secured Party, any right, power or privilege
hereunder or under the Collateral Trust Agreement shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder or under the Collateral Trust Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Trustee or any other Secured Party of
any right or remedy hereunder or under the Collateral Trust Agreement on any
one occasion shall not be construed as a bar to any right or remedy which the
Collateral Trustee or such Secured Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
7.4 Enforcement Expenses; Indemnification. (a) Each
Pledgor agrees to pay or reimburse the Collateral Trustee for all its costs
and expenses incurred in enforcing or preserving any rights under this
Agreement and the Collateral Trust Agreement to which such Pledgor is a
party, including, without limitation, the fees and disbursements of counsel
to the Collateral Trustee.
(b) Each Pledgor agrees to pay, and to save the Collateral
Trustee and the Secured Parties harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Pledgor agrees to pay, and to save the Collateral
Trustee and the Secured Parties harmless from, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this
Agreement to the extent the Borrower would be required to pay, and to save
the Administrative Agent and the Lenders harmless, pursuant to Section 10.5
of the Credit Agreement.
(d) The agreements in this Section 7.4 shall survive repayment
of the Secured Obligations and all other amounts payable under the Credit
Agreement and the other Credit Documents.
7.5 Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of each Pledgor and shall inure
to the benefit of the Collateral Trustee and the Secured Parties and
their successors and assigns; provided that no Pledgor may assign,
transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Collateral Trustee.
7.6 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
7.7 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
7.8 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
7.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
7.10 Submission To Jurisdiction; Waivers. Each Pledgor
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement, and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to such Pledgor at its address referred to in Section 7.2 or at such other
address of which the Collateral Trustee shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 7.11 any special, exemplary, punitive or
consequential damages.
7.11 Acknowledgements. Each Pledgor hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents to which it is
a party;
(b) neither the Collateral Trustee nor any Lender has any
fiduciary relationship with or duty to any Pledgor arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between the Pledgors, on the one hand, and the Collateral
Trustee and Lenders, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Pledgors and the Lenders.
7.12 Additional Pledgors. Each Subsidiary of the Borrower
that is required to become a party to this Agreement pursuant to
Section 6.10(c) of the Credit Agreement shall become a Pledgor for all
purposes of this Agreement upon execution and delivery by such
Subsidiary of an Assumption Agreement in the form of Annex I hereto.
7.13 Releases. (a) This Agreement and the Liens created
hereby (a) shall cease to be effective with respect to the Existing Senior
Note Obligations on the earlier of the date (i) on which all of the Existing
Senior Note Obligations shall have been paid in full and (ii) that is 10 days
after the provisions of the Existing Senior Notes Indenture that require
equal and ratable sharing shall be held by a court of competent jurisdiction
to be invalid and (b) terminate at such time as the Secured Obligations
shall have been paid in full, the Commitments under the Credit Agreement have
been terminated and no Letters of Credit shall be outstanding under the
Credit Agreement, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Collateral Trustee and each
Pledgor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Pledgors. At the request and sole expense of any Pledgor
following any such termination, the Collateral Trustee shall deliver to such
Pledgor any Collateral held by the Collateral Trustee hereunder, and execute
and deliver to such Pledgor such documents as such Pledgor shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Pledgor in a transaction permitted by the Credit
Agreement, then the Collateral Trustee, at the request and sole expense of
such Pledgor, shall execute and deliver to such Pledgor all releases or other
documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral; provided that any such release after the
occurrence and during the continuation of a Triggering Event (as defined in
the Collateral Trust Agreement) shall be subject to the prior approval of the
Collateral Trustee.
(c) At the request and sole expense of any Pledgor
following any sale or other disposition of any certificated Pledged
Stock of any Foreign Issuer by the Collateral Trustee, the Collateral
Trustee shall deliver to such Pledgor any stock certificates held by
the Collateral Trustee in respect of Capital Stock of such Foreign
Issuer that is not Pledged Stock, and in connection therewith shall
execute and deliver to such Pledgor such documents as such Pledgor may
reasonably request.
7.14 WAIVER OF JURY TRIAL. EACH PLEDGOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this
Shared Collateral Pledge Agreement to be duly executed and delivered as of
the date first above written.
HOLDINGS
--------
BLOUNT INTERNATIONAL, INC.
By: ____________________________
Name:
Title:
BORROWER
--------
BLOUNT, INC.
By: ____________________________
Name:
Title:
SUBSIDIARIES
------------
BI HOLDINGS CORP.
By:________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:________________________
Name:
Title:
BI, L.L.C.
By:________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:________________________
Name:
Title:
4520 CORP., INC.
By:________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:________________________
Name:
Title:
FREDERICK MANUFACTURING
CORPORATION
By:________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:________________________
Name:
Title:
COLLATERAL TRUSTEE
------------------
BANK OF AMERICA, N.A.
as Collateral Trustee
By: ____________________________
Name:
Title:
SCHEDULE 1
DESCRIPTION OF PLEDGED SECURITIES
Pledged Stock:
Class of No. of
Stock or Shares
Other Certificate or Other
Issuer Pledgor Interest No. Interest
- -------------------------------------------------------------------------------
Blount, Inc. Blount Capital Stock 1 1,000
International, Inc.
BI Holdings Blount, Inc. Capital Stock 1 1,000
Corp.
BI Holdings Blount, Inc. Capital Stock 2 1,000
Corp.
BI, L.L.C. Blount, Inc. Member's Uncertificated 1%
Interest
BI, L.L.C. BI Holdings Corp. Member's Uncertificated 99%
Interest
Benjamin F. Blount, Inc. Common Stock C 157 2,336
Shaw
Benjamin F. Blount, Inc. Common Stock C 156 754
Shaw
Blount Blount, Inc. Common Stock 4 1,000
Development
Corp.
Omark Blount Holdings, Capital Stock 7-P 993
Properties, Ltd.
Inc.
Omark Blount, Inc. Capital Stock 8-P 1,000
Properties,
Inc.
Omark Blount, Inc. Capital Stock 9-p 7
Properties,
Inc.
Omark Blount, Inc. Capital Stock 12-P 178
Properties,
Inc.
Omark Blount, Inc. Capital Stock 13-P 772
Properties,
Inc.
Omark Blount, Inc. Capital Stock 17-P 586
Properties,
Inc.
Omark Blount, Inc. Capital Stock 20-P 1,808
Properties,
Inc.
Omark Blount, Inc. Capital Stock 21-P 737
Properties,
Inc.
Omark Blount, Inc. Capital Stock 23-P 754
Properties,
Inc.
Omark Blount, Inc. Capital Stock 25-P 1,590
Properties,
Inc.
Omark Blount, Inc. Capital Stock 26-P 374
Properties,
Inc.
Omark Blount, Inc. Capital Stock 29-P 451
Properties,
Inc.
Omark Blount, Inc. Capital Stock 30-P 750
Properties,
Inc.
4520 Corp., Blount, Inc. Capital Stock 1 1,000
Inc.
(formerly
known as
Blount
International
, Ltd)
Gear Products, Blount, Inc. Capital Stock 8 442,936.75
Inc.
Dixon Blount, Inc. Capital Stock 4 2,500
Industries,
Inc.
Frederick Blount, Inc. Capital Stock 39 835
Manufacturing
Corporation
Federal Blount, Inc. Common Stock N4 99
Cartridge
Company
(formerly
known as
Federal-
Hoffman, Inc.)
Simmons Blount, Inc. Capital Stock 1 1,000
Outdoor
Corporation
Mocenplaza Blount Development Common Stock 1 1,000
Development Corp.
Corp.
CTR Blount, Inc. Capital Stock 41 1,000
Manufacturing,
Inc.
Blount BI Holdings Corp. Common Stock 14 65% of
Holdings Ltd. 13,000
Shares
Blount Europe, BI Holdings Corp. Capital Stock 52,407,366 65% of
S.A. through 97,327,964
149,735,326 Shares
Blount BI Holdings Corp. Quotas Uncertificated 65% of
Industrial 7,747,572
Ltd. Quotas
OOO Blount BI, L.L.C. Capital Stock 65%
Blount GmbH BI Holdings Corp. Quotas Uncertificated 65% of
250,000
Quotas
Blount Japan BI Holdings Corp. Common Stock B-002 65% of
Inc. 50,000
Shares
Blount BI Holdings Corp. Common Stock 25%
(Thailand) (Paid Up)
Ltd.
Blount BI Holdings Corp. Common Stock 40%
(Thailand) (Not Paid Up)
Ltd.
Blount U.K. BI Holdings Corp. Ordinary Shares 5 65% of
Limited 374,999
Shares
Svenska BI Holdings Crop. Common Stock 1 through 500 65% of
Blount AB 500
(formerly Shares
known as
Svenska Omark
AB, formerly
known as
Svenska
Oregon AB)
DESCRIPTION OF PLEDGED SECURITIES
Pledged Notes:
Issuer Payee Principal Amount
- --------------- ----------------------- ----------------
Blount, Inc. BI Holding Corp. $260,000,000
OOO Blount Blount, Inc. $100,000
SCHEDULE 2
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
See attached schedule of Fixture Filings and UCC-1 Financing Statement Filings
SCHEDULE 3
LOCATION OF JURISDICTION OF ORGANIZATION
AND CHIEF EXECUTIVE OFFICE
Grantor Location
- ------------------------------- ---------------------------------------------
Jurisdiction of Jurisdiction of Chief
Organization Executive Office
----------------------- ---------------------
Blount International, Inc. Delaware Alabama
BI Holdings Corp. Delaware Alabama
Benjamin F. Shaw Company Delaware Alabama
BI, L.L.C. Delaware Oregon
Blount Development Corp. Delaware Alabama
Omark Properties, Inc. Oregon Oregon
4520 Corp., Inc. Delaware Alabama
Gear Products, Inc. Oklahoma Oklahoma
Dixon Industries, Inc. Kansas Kansas
Frederick Manufacturing Delaware Missouri
Corporation
Federal Cartridge Company Minnesota Minnesota
Simmons Outdoor Corporation Delaware Georgia
Mocenplaza Development Corp. Delaware Alabama
CTR Manufacturing, Inc. North Carolina North Carolina
Annex 1 to
Shared Collateral Pledge
Agreement
ASSUMPTION AGREEMENT, dated as of ______ __, ____made by
___________________________, a ____________ corporation (the "Additional
Pledgor"), in favor of Bank of America, N.A., as administrative agent (in
such capacity, the "Collateral Trustee") for the Secured Parties. All
capitalized terms not defined herein shall have the meaning ascribed to them
in such Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, BLOUNT INTERNATIONAL, INC., a corporation duly organized
and validly existing under the law of the State of Delaware ("Holdings"),
BLOUNT, INC., a corporation duly organized and validly existing under the law
of the State of Delaware (the "Borrower"), the lenders party thereto and
certain other parties have entered into a Credit Agreement, dated as of
August 19, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, Holdings, the
Borrower and certain Affiliates of the Borrower (other than the Additional
Pledgor) have entered into the Shared Collateral Pledge Agreement, dated as
of August 19, 1999 (as amended, supplemented or otherwise modified from time
to time, the "Shared Collateral Pledge Agreement") in favor of the Collateral
Trustee for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Pledgor to
become a party to the Shared Collateral Pledge Agreement as a "Pledgor"
thereunder; and
WHEREAS, the Additional Pledgor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Shared Collateral
Pledge Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Shared Collateral Pledge Agreement. By executing and
delivering this Assumption Agreement, the Additional Pledgor, as
provided in Section 7.12 of the Shared Collateral Pledge
Agreement, hereby becomes a party to the Shared Collateral Pledge
Agreement as a Pledgor thereunder with the same force and effect
as if originally named therein as a Pledgor and, without limiting
the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Pledgor thereunder. The
information set forth in Annex I-A hereto is hereby added to the
information set forth in Schedules _______________ to the Shared
Collateral Pledge Agreement.
2. Pledgor hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the
Shared Collateral Pledge Agreement is true and correct on and as
the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.`
3. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above
written.
[ADDITIONAL PLEDGOR]
By: ___________________________
Name:
Title:
<PAGE>
EXHIBIT A-3
[FORM OF COLLATERAL TRUST AGREEMENT]
COLLATERAL TRUST AGREEMENT
made by
BLOUNT INTERNATIONAL, INC.
BLOUNT, INC.
and certain of its Subsidiaries
in favor of
BANK OF AMERICA, N.A.
as Collateral Trustee
Dated as of August 19, 1999
TABLE OF CONTENTS
SECTION 1. DEFINED TERMS 2
1.1 Incorporation by Reference. 2
1.2 Certain Definitions. 2
SECTION 2. DECLARATION AND ACCEPTANCE OF TRUST; REMEDIES 3
2.1 Declaration and Acceptance of Trust. 3
2.2 Determinations Relating to Collateral. 4
2.3 Remedies. 4
2.4 Right to Make Advances. 4
2.5 Nature of Secured Parties' Rights. 5
SECTION 3. COLLATERAL ACCOUNTS. 5
3.1 Collateral Accounts. 5
3.2 Investment of Funds. 5
SECTION 4. APPLICATION OF CERTAIN AMOUNTS 5
4.1 Application of Proceeds. 5
4.2 Application of Withheld Amounts. 6
4.3 Release of Amounts in Collateral Accounts. 6
4.4 Payment Provisions. 6
SECTION 5. AGREEMENTS WITH COLLATERAL TRUSTEE 6
5.1 Delivery of Debt Instruments. 6
5.2 Information as to Holders. 7
5.3 Compensation and Expenses. 7
5.4 Stamp and Other Similar Taxes. 7
5.5 Filing Fees, Excise Taxes, etc. 7
5.6 Indemnification. 7
5.7 Further Assurances. 7
SECTION 6. THE COLLATERAL TRUSTEE 8
6.1 Certain Duties. 8
6.2 Exculpatory Provisions. 8
6.3 Delegation of Duties. 9
6.4 Reliance by Collateral Trustee. 9
6.5 Limitations on Duties of Collateral Trustee. 10
6.6 Moneys to be Held in Trust. 10
6.7 Resignation of the Collateral Trustee. 10
6.8 Status of Successors to Collateral Trustee. 11
6.9 Merger of Collateral Trustee. 11
6.10 Appointment of Additional and Separate Collateral Trustee. 11
SECTION 7. RELEASE OF TRUST ESTATE AND COLLATERAL; EXPIRATION OF
CERTAIN RIGHTS 12
7.1 Release of Trust Estate; Expiration of Rights of Certain
Secured Parties. 12
7.2 Releases of Collateral. 12
7.3 Amendment of Shared Collateral Documents. 12
SECTION 8. MISCELLANEOUS 12
8.1 Equal and Ratable Security. 12
8.2 Amendments, Supplements and Waivers. 13
8.3 Notices. 13
8.4 Headings. 14
8.5 Severability. 14
8.6 Dealings with the Credit Parties. 14
8.7 Binding Effect. 14
8.8 Governing Law. 14
8.9 Counterparts. 14
8.10 Consent to Jurisdiction and Service of Process. 14
8.11 Waiver Of Jury Trial. 15
8.12 Additional Credit Parties. 15
COLLATERAL TRUST AGREEMENT
COLLATERAL TRUST AGREEMENT, dated as of August 19, 1999, among
BLOUNT INTERNATIONAL, INC., a Delaware corporation ("Holdings"), BLOUNT,
INC., a Delaware corporation (the "Borrower"), each of the Subsidiaries of
the Borrower signatory hereto (Holdings, the Borrower, each such Subsidiary,
together with any other Subsidiary that may become a party hereto as provided
herein, the "Credit Parties"), and BANK OF AMERICA, N.A., as collateral
trustee (in such capacity, the "Collateral Trustee") for the holders from
time to time of the Secured Obligations (as defined below).
W I T N E S S E T H:
WHEREAS, Holdings and the Borrower are parties to (a) the Credit
Agreement, dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Holdings, the
Borrower, the several banks and other financial institutions or entities from
time to time parties thereto (the "Lenders"), Lehman Brothers Inc., as
advisor, book manager and lead arranger (in such capacity, the "Arranger"),
Lehman Commercial Paper Inc., as syndication agent (in such capacity, the
"Syndication Agent"), and Bank of America, N.A., as administrative agent (in
such capacity, the "Administrative Agent") and (b) the Indenture dated as of
June 18, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Existing Senior Notes Indenture") among the Borrower, Holdings and
Lasalle National Bank, as Trustee (the "Indenture Trustee");
WHEREAS, in connection with the Credit Agreement certain of the
Credit Parties have entered into the Shared Collateral Documents (as defined
below) in order to secure, among other things, the Credit Agreement
Obligations, and such Credit Parties have pledged collateral to the
Collateral Trustee under such Agreements;
WHEREAS, pursuant to the provisions of the Existing Senior Notes
Indenture, the Borrower and Holdings may not, and may not permit any of their
respective Subsidiaries to, secure the Credit Agreement Obligations (as
defined below) with a Mortgage on any Principal Property or any shares of
Capital Stock or Debt (as such terms are defined in the Existing Senior Notes
Indenture) of the Borrower without equally and ratably securing the Existing
Senior Note Obligations (as defined below); and
WHEREAS, the Credit Parties are entering into this Agreement, and
have requested the Collateral Trustee to act as collateral trustee hereunder,
to enable the Credit Parties to comply with the provisions of the Existing
Senior Notes Indenture. The Collateral Trustee is willing to act as
collateral trustee hereunder on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, the Credit Parties and the Collateral Trustee
hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1 Incorporation by Reference. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
1.2 Certain Definitions. (a) As used in this Agreement,
the capitalized terms defined in the recitals hereto shall have the meanings
specified therein, and the following terms have the meanings specified below:
"Collateral" means the property and assets from time to time
subject to Liens under the Shared Collateral Documents.
"Collateral Account" shall have the meaning specified in
Section 3.1.
"Collateral Trustee's Fees" means all fees, costs and expenses of
the Collateral Trustee of the type described in Sections 5.3, 5.4, 5.5 and
5.6.
"Credit Agreement Obligations" shall have the meaning assigned to
such term in the Shared Collateral Pledge Agreement.
"Debt Instruments" means (i) the Credit Agreement and the Non-
Shared Guarantee and Collateral Agreement, (ii) the Existing Senior Notes
Indenture and (iii) each Hedge Agreement under which a Credit Agreement
Obligation exists. For purposes hereof, the amount at any time of any such
Hedge Agreement or Secured Obligation thereunder shall be the amounts that
are owed to a Secured Party thereunder after a termination thereof and after
giving effect to any netting arrangements applicable to such amounts.
"Distribution Date" means the date on which any funds are
distributed by the Collateral Trustee in accordance with the provisions of
Section 4.1.
"Event of Default" means any "Event of Default" under the Credit
Agreement or any "Event of Default" under the Existing Senior Notes Indenture
(as such terms are defined in the Credit Agreement and the Existing Senior
Notes Indenture, respectively).
"Existing Senior Note Obligations" means the obligations (without
duplication) of the Borrower and Holdings to pay the principal of, and
premium, if any, and interest on, the Existing Senior Notes.
"Requisite Secured Parties" means, at any time, the Secured Party
or Secured Parties holding more than 50% in aggregate amount of the Secured
Obligations then outstanding; provided that any balance in a Secured Party's
Collateral Account shall be deducted from the amount of Secured Obligations
held by such Secured Party for purposes of determining the outstanding amount
of Secured Obligations under this definition.
"Secured Obligations" means, without duplication, (i) the Credit
Agreement Obligations and (ii) the Existing Senior Note Obligations; provided
that the "Secured Obligations" shall not in any event include any obligations
in respect of debt securities issued under the Existing Senior Notes
Indenture after the date hereof.
"Secured Parties" means (i) the Lenders (including the Issuing
Bank, the Swing Line Lender and any Lender or Affiliate of a Lender party to
one or more Hedge Agreements), (ii) the Agents, (iii) the holders of the
Existing Senior Notes and (iv) the Indenture Trustee.
"Shared Collateral Documents" means the Shared Collateral Pledge
Agreement, the Shared Mortgages and the Foreign Subsidiary Pledge Agreements.
"Shared Collateral Pledge Agreement" means the Shared Collateral
Pledge Agreement dated as of the date hereof made by certain of the Credit
Parties in favor of the Collateral Trustee, for the benefit of the Secured
Parties.
"Shared Mortgages" means the Mortgages made in favor of the
Collateral Trustee covering real Property in which the Lien thereunder shall
be granted for the equal and ratable benefit of the Secured Parties.
"Triggering Event" means the occurrence of an Event of Default,
the acceleration of the principal amount of all Secured Obligations (to the
extent capable of being accelerated) under the terms of the Credit Agreement
or the Existing Senior Notes Indenture and receipt by the Collateral Trustee
of a written notice to such effect from the Administrative Agent under the
Credit Agreement or the Indenture Trustee under the Existing Senior Notes
Indenture.
"Trust Estate" means (i) the right, title and interest of the
Collateral Trustee in, to and under each of the Shared Collateral Documents
and (ii) the amounts from time to time held in the Collateral Accounts.
(b) The words "hereof", "herein" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof. All references herein to
Sections shall, unless otherwise specified, be deemed to refer to Sections of
this Agreement.
SECTION 2. DECLARATION AND ACCEPTANCE OF TRUST; REMEDIES
2.1 Declaration and Acceptance of Trust. The Collateral
Trustee hereby declares, and each of the Credit Parties agrees, that the
Collateral Trustee holds the Trust Estate as trustee in trust under this
Agreement for the equal and ratable benefit of the Secured Parties as
provided herein. By acceptance of the benefits of this Agreement, each
Secured Party (whether or not a signatory hereto) (i) consents to the
appointment of the Collateral Trustee as trustee hereunder, (ii) confirms
that the Collateral Trustee shall have the authority to act as the exclusive
agent of such Secured Party for enforcement of any remedies under or with
respect to any Shared Collateral Document and the giving or withholding of
any consent or approval relating to any Collateral or any Credit Party's
obligations with respect thereto and (iii) agrees that, except as provided in
this Agreement, it shall not take any action to enforce any of such remedies
or give any such consents or approvals.
2.2 Determinations Relating to Collateral. Prior to the
occurrence of a Triggering Event, in the event (i) the Collateral Trustee
shall receive any written request from Holdings or any of its Subsidiaries
under any Collateral Document for consent or approval with respect to any
matter or thing relating to any Collateral or any Credit Party's obligations
with respect thereto or (ii) there shall be due to or from the Collateral
Trustee under the provisions of any Collateral Document any material
performance or the delivery of any material instrument or (iii) the
Collateral Trustee shall become aware of any nonperformance by any Credit
Party of any covenant or any breach of any representation or warranty set
forth in any Collateral Document, then, in each such event, the Collateral
Trustee shall advise the Agents of the matter or thing as to which consent
has been requested or the performance or instrument required to be delivered
or the nonperformance or breach of which the Collateral Trustee has become
aware. Prior to the occurrence of a Triggering Event, the Administrative
Agent and the Required Lenders shall have the exclusive authority to direct
the Collateral Trustee's response to any of the events or circumstances
contemplated in clauses (i), (ii) and (iii) above.
2.3 Remedies. (a) Upon the occurrence of a Triggering
Event, or upon receipt of any written directions as contemplated by
paragraph (b) of this Section 2.3, the Collateral Trustee shall, within five
days thereafter, notify each of the Secured Parties and the Borrower in
writing that a Triggering Event exists or that the Collateral Trustee has
received such written directions, as the case may be, enclosing with such
notice a copy of the applicable notice or written directions, as the case may
be.
(b) Following the occurrence of a Triggering Event, the
Requisite Secured Parties shall have the exclusive right to direct the time,
method and place of conducting any proceeding for the exercise of any right
or remedy available to the Collateral Trustee with respect to the Collateral,
or of exercising any trust or power conferred on the Collateral Trustee, or
for the taking of any other action authorized by the instruments comprising
the Trust Estate; provided, however, that nothing in this Section 2.3 shall
impair the right of the Collateral Trustee in its discretion to take any
action deemed proper by the Collateral Trustee and which is not inconsistent
with such direction by the Requisite Secured Parties.
2.4 Right to Make Advances. In the event an advance of
funds shall at any time be required for the preservation or maintenance of
any Collateral, the Collateral Trustee, any Agent or any Lender shall be
entitled to make such advance after notice to the Borrower of its intention
to do so but without notice to any other Secured Party. Each such advance
shall be reimbursed, with interest accrued from the date such advance was
made at the rate per annum at which interest would then be payable on past
due Revolving Credit Loans that are Base Rate Loans under the Credit
Agreement (the "Default Rate"), by the Borrower upon demand by the Collateral
Trustee, such Agent or such Lender, as the case may be, and if the Borrower
fails to comply with any such demand, out of the proceeds of any Collateral
distributed pursuant to clause First of Section 4.1. In the event any
Secured Party shall receive any funds which, under this Section 2.4, belong
to the Collateral Trustee or any other Secured Party, such Secured Party
shall remit such funds promptly to the Collateral Trustee for distribution to
the Collateral Trustee or such other Secured Party, as the case may be, and
prior to such remittance shall hold such funds in trust for the Collateral
Trustee or such other Secured Party, as the case may be.
2.5 Nature of Secured Parties' Rights. All of the
Secured Parties shall be bound by any instruction or direction given by the
Required Lenders or Requisite Secured Parties, as applicable, pursuant to
this Section 2.
SECTION 3. COLLATERAL ACCOUNTS.
3.1 Collateral Accounts The Collateral Trustee shall
establish and, at all times thereafter until all amounts due to all Secured
Parties other than the Agents, the Lenders and other holders of the Credit
Agreement Obligations have been paid to such Secured Parties, there shall be
maintained with the Collateral Trustee a separate collateral trust account
(each, a "Collateral Account"; collectively, the "Collateral Accounts") for
each of the Secured Parties in respect of its applicable Debt Instruments.
All funds on deposit in the Collateral Accounts shall be held, applied and
disbursed by the Collateral Trustee as part of the Trust Estate in accordance
with the terms of this Agreement.
3.2 Investment of Funds. The Collateral Trustee shall
invest and reinvest moneys on deposit in the Collateral Accounts at any time
in Cash Equivalents as directed in a writing by the Borrower, and the
investment earnings thereon shall, so long as no Event of Default shall have
occurred and be continuing, be paid to the Borrower monthly; provided,
however, that if any party other than a holder of Credit Agreement
Obligations claims entitlement to any such investment earnings, the same
shall not be released to the Borrower but shall continue to be held and
reinvested by the Collateral Trustee pending receipt by the Collateral
Trustee of joint instructions signed by the Borrower and such party or a
nonappealable court judgment determining the disposition of such earnings.
The Borrower shall bear the risk of loss on any investment made hereunder
(except for such losses that result from the gross negligence or wilful
misconduct of the Collateral Trustee in failing to follow proper investment
instructions given by the Borrower pursuant to this paragraph) and shall,
upon demand of the Collateral Trustee to the Borrower, deliver immediately
available funds to Collateral Trustee in an amount equal to such loss or
losses.
SECTION 4. APPLICATION OF CERTAIN AMOUNTS
4.1 Application of Proceeds. If, following acceleration
of the principal amount of any Debt Instrument and pursuant to the exercise
of any remedy set forth in any Collateral Document, any Collateral is sold or
otherwise realized upon by the Collateral Trustee, the proceeds received by
the Collateral Trustee in respect of such Collateral shall be applied as soon
as practicable after receipt as follows:
FIRST: To the Collateral Trustee in an amount equal to the
Collateral Trustee's Fees which are unpaid as of the applicable
Distribution Date and to any Secured Party which has theretofore
advanced or paid any such Collateral Trustee's Fees in an amount equal
to the amount thereof so advanced or paid by such Secured Party and to
reimburse to the Collateral Trustee and any Senior Lender the amount of
any advance made pursuant to Section 2.4 (with interest thereon at the
Default Rate);
SECOND: To the Agents, the Lenders, other holders of Credit
Agreement Senior Obligations and the Indenture Trustee, each in
proportion to the amount of Secured Obligations then owing to it or, in
the case of the Indenture Trustee, then owing to the holders of the
Existing Senior Note Obligations (after giving effect to any payments
previously made under this Section), until all the Secured Obligations
have been paid in full; and
THIRD: After payment in full of all Secured Obligations, to the
Credit Parties or their successors or assigns, as their interests may
appear, or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
4.2 Application of Withheld Amounts. If at any time any
proceeds of Collateral collected or received by the Collateral Trustee are
distributable pursuant to Section 4.1 to any Secured Party, and if such
Secured Party shall give notice (each, a "Withheld Amount Notice") that all
or a portion of such proceeds (each such amount, a "Withheld Amount") shall
be held by the Collateral Trustee pending the application thereof to Secured
Obligations, then, notwithstanding the provisions of Section 4.1, the
Collateral Trustee shall hold such Withheld Amount in the applicable
Collateral Account until such time as the applicable Secured Party shall
request the delivery thereof for application to Secured Obligations pursuant
to the provisions of Section 4.3.
4.3 Release of Amounts in Collateral Accounts.
(a) Amounts on deposit in a Collateral Account with respect to Secured
Obligations shall be paid to the applicable Secured Party upon receipt by the
Collateral Trustee of a certificate of such Secured Party setting forth the
name of the Person to whom payment should be made and the amount to be
delivered to such Person and, in the case of amounts on deposit in any
Collateral Account relating to the Existing Senior Notes, stating that such
amount will be applied to the payment of Secured Obligations.
(b) If, at any time, funds are on deposit in a Collateral
Account with respect to the Existing Senior Notes and the principal of and
accrued interest on and all other amounts due in respect of the Existing
Senior Notes have been paid in full, such funds shall be distributed and
applied in accordance with the provisions of Section 4.1 hereof.
4.4 Payment Provisions. For the purposes of applying the
provisions of Section 4.1, all interest to be paid on any of the Secured
Obligations pursuant to the terms of any Debt Instrument shall, as among the
Secured Parties and irrespective of whether such interest is or would be
recognized or allowed in any bankruptcy or similar proceeding, be treated as
due and owing on the Secured Obligations.
SECTION 5. AGREEMENTS WITH COLLATERAL TRUSTEE
5.1 Delivery of Debt Instruments. On the date hereof,
the Borrower shall deliver to the Collateral Trustee a true and complete copy
of each of the Debt Instruments as in effect on the date hereof. Promptly
upon the execution thereof, the Borrower shall deliver to the Collateral
Trustee a true and complete copy of any and all amendments, modifications or
supplements to any Debt Instrument and of any Hedge Agreement hereafter
entered into which is a Debt Instrument.
5.2 Information as to Holders. The Borrower shall
deliver to the Collateral Trustee from time to time upon request of the
Collateral Trustee a list setting forth, by each Debt Instrument, (i) the
aggregate principal amount outstanding thereunder, (ii) the interest rate or
rates then in effect thereunder, and (iii) the names of the holders thereof
and the unpaid principal amount thereof owing to each such holder. The
Borrower shall furnish to the Collateral Trustee within 30 days of a request
therefor a list setting forth the name and address of each party to whom
notices must be sent under the Debt Instruments, and the Borrower agrees to
furnish promptly to the Collateral Trustee any changes or additions to such
list.
5.3 Compensation and Expenses. The Borrower agrees to
pay to the Collateral Trustee, from time to time upon demand,
(i) compensation (which shall not be limited by any provision of law in
regard to compensation of a trustee of an express trust) for its services
hereunder and for administering the Trust Estate, as heretofore agreed
between the Collateral Trustee and the Borrower, and (ii) all of the
reasonable fees, costs and expenses of the Collateral Trustee (including,
without limitation, the reasonable fees and disbursements of its counsel and
such special counsel as the Collateral Trustee elects to retain) (a) arising
in connection with the preparation, execution, delivery, modification and
termination of this Agreement, or the enforcement of any provisions hereof,
or (b) incurred or required to be advanced in connection with the
administration of the Trust Estate or the preservation, protection or defense
of the Collateral Trustee's rights under this Agreement and in and to the
Collateral and the Trust Estate. The obligations of the Borrower under this
Section 5.3 shall survive the termination of this Agreement.
5.4 Stamp and Other Similar Taxes. The Borrower agrees
to indemnify and hold harmless the Collateral Trustee and each Secured Party
from any present or future claim or liability for any mortgage, stamp or
other similar tax and any penalties or interest with respect thereto, which
may be assessed, levied or collected by any jurisdiction in connection with
this Agreement and the Shared Collateral Documents. The obligations of the
Borrower under this Section 5.4 shall survive the termination of this
Agreement.
5.5 Filing Fees, Excise Taxes, etc. The Borrower agrees
to pay or to reimburse the Collateral Trustee for any and all amounts in
respect of all search, filing, recording and registration fees, taxes, excise
taxes and other similar imposts which may be payable or determined to be
payable in respect of the execution, delivery, performance and enforcement of
this Agreement to the extent the same may be paid or reimbursed by the
Borrower without subjecting the Collateral Trustee, the Trustees, any Agent
or any Lender to any civil or criminal liability. The obligations of the
Borrower under this Section 5.5 shall survive the termination of this
Agreement.
5.6 Indemnification. (a) Each of the Credit Parties,
jointly and severally, agrees to pay, indemnify, and hold the Collateral
Trustee harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and
the Shared Collateral Documents; provided, however, that the Collateral
Trustee shall not be indemnified under this paragraph to the extent such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements are found by final judgment of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Collateral Trustee.
(b) In any suit, proceeding or action brought by the Collateral
Trustee with respect to the Collateral or for any sum owing in respect of
Secured Obligations, or to enforce the provisions of any Collateral Document,
each of the Credit Parties, jointly and severally, shall save, indemnify and
keep the Collateral Trustee and each of the Secured Parties harmless from and
against all expense, loss or damage suffered by reason of any defense, set-
off, counterclaim, recoupment or reduction of liability whatsoever incurred
or suffered by the Collateral Trustee or such Secured Party, as the case may
be, arising out of a breach by any Credit Party of any obligation set forth
in this Agreement, or any other Collateral Document and all such obligations
of each Credit Party shall be and remain enforceable against and only against
such Credit Party and shall not be enforceable against the Collateral Trustee
or any Secured Party. The provisions of this Section 5.6 shall survive the
termination of this Agreement.
5.7 Further Assurances. At any time and from time to time,
upon the written request of the Collateral Trustee, and at the expense of the
Credit Parties, each Credit Party shall promptly execute and deliver any and
all such further instruments and documents and take such further action as
Collateral Trustee reasonably deems necessary or desirable in obtaining the
full benefits of this Agreement.
SECTION 6. THE COLLATERAL TRUSTEE
6.1 Certain Duties. The Collateral Trustee's duties in
respect of the Trust Estate shall include, without limitation, the review of
applications of the Credit Parties or others for consents, waivers, releases
or other matters relating to the Trust Estate or the Collateral and the
prosecution following any Event of Default of any action or proceeding or the
taking of any nonjudicial remedial action as shall be determined to be
required pursuant to the provisions of Sections 2.2 and 2.3. The Collateral
Trustee's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
New York UCC or otherwise, shall be to deal with such Collateral in the same
manner as it customarily deals with similar collateral of other parties held
by it.
6.2 Exculpatory Provisions. (a) The Collateral Trustee
shall not be responsible in any manner whatsoever for the correctness of any
recitals, statements, representations or warranties herein contained, all of
which are made solely by the Credit Parties. The Collateral Trustee makes no
representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of the Credit Parties thereto or as to the
security afforded by the Shared Collateral Documents or this Agreement or as
to the validity, execution (except its own execution thereof),
enforceability, legality or sufficiency of the Shared Collateral Documents or
this Agreement or of the Secured Obligations, and the Collateral Trustee
shall incur no liability or responsibility with respect to any such matters.
The Collateral Trustee shall not be responsible for insuring the Trust Estate
or for the payment of taxes, charges, assessments or Liens upon the Trust
Estate or otherwise as to the maintenance of the Trust Estate.
(b) The Collateral Trustee shall not be required to ascertain or
inquire as to the performance by Holdings, the Borrower or any other person
of any of the covenants or agreements contained herein, in any Collateral
Document or in any Debt Instrument. Whenever it is necessary, or in the
opinion of the Collateral Trustee advisable, for the Collateral Trustee to
ascertain the amount of Secured Obligations then held by a Secured Party, the
Collateral Trustee may rely on a certificate of such Secured Party (or, in
the case of the Credit Agreement Obligations, the Administrative Agent, and,
in the case of the Existing Senior Notes Obligations, the Indenture Trustee)
as to such amount, and if any Secured Party (or, in the case of the Credit
Agreement Obligations, the Administrative Agent, and, in the case of the
Existing Senior Notes Obligations, the Indenture Trustee) shall not provide
such information to the Collateral Trustee, such Secured Party shall not be
entitled to receive payments hereunder (in which case the amounts otherwise
payable to such Secured Party shall be held in trust for such Secured Party
in the applicable Collateral Account) until such Secured Party (or other
Person, as specified above) has provided such information to the Collateral
Trustee.
(c) The Collateral Trustee shall not be personally liable for
any action taken or omitted to be taken by it in accordance with this
Agreement or any Collateral Document or any Debt Instrument, except for such
actions or omissions that constitute gross negligence or willful misconduct
by the Collateral Trustee. The Collateral Trustee and its affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower and its Subsidiaries as though the Collateral
Trustee were not the collateral trustee hereunder. With respect to the Loans
made by it and all Secured Obligations owing to it, the Collateral Trustee
shall have the same rights and powers under this Agreement as any Lender and
may exercise the same as though it were not the collateral trustee hereunder,
and the terms "Lender" and "Lenders" shall include the Collateral Trustee in
its individual capacity.
6.3 Delegation of Duties. The Collateral Trustee may
execute any of the trusts or powers hereof and perform any duty hereunder
either directly or by or through agents or attorneys-in-fact which it shall
select with due care. The Collateral Trustee shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by
it.
6.4 Reliance by Collateral Trustee. (a) Whenever in the
administration of the trusts of this Agreement the Collateral Trustee shall
deem it necessary or advisable that a matter be proved or established in
connection with the taking of any action hereunder by the Collateral Trustee,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively provided or established by a
certificate of an officer of the Borrower delivered to the Collateral
Trustee, and such officers' certificate shall be full warranty to Collateral
Trustee for any action taken, suffered or omitted in reliance thereon.
(b) The Collateral Trustee may consult with counsel, and any
opinion of such counsel (which may be in-house counsel for the Collateral
Trustee) shall be full and complete authorization and protection in respect
of any action taken or suffered by it hereunder in accordance therewith. The
Collateral Trustee shall have the right at any time to seek instructions
concerning the administration of the Trust Estate from any court of competent
jurisdiction.
(c) The Collateral Trustee may rely, and shall be fully
protected in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or
document which it has no reason to believe to be other than genuine and to
have been signed or presented by the proper party or parties or, in the case
of telecopies and telexes, to have been sent by the proper party or parties.
The Collateral Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Collateral Trustee and conforming
to the requirements of this Agreement or any Collateral Document.
(d) The Collateral Trustee shall not be under any obligation to
exercise any of the rights or powers vested in the Collateral Trustee by this
Agreement unless the Collateral Trustee shall have been provided adequate
security and indemnity against the costs, expenses and liabilities which may
be incurred by it in compliance with such request or direction, including,
without limitation, such reasonable advances as may be requested by the
Collateral Trustee.
6.5 Limitations on Duties of Collateral Trustee. The
Collateral Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the direction of the Required
Lenders or Requisite Secured Parties, as applicable, pursuant to Section 2.
Except as herein otherwise expressly provided, the Collateral Trustee shall
not be under any obligation to take any action which is discretionary with
the Collateral Trustee under the provisions hereof except upon the written
request of the Required Lenders or Requisite Secured Parties, as applicable,
pursuant to Section 2. The Collateral Trustee shall make available for
inspection and copying by any Secured Party each certificate or other paper
furnished to the Collateral Trustee by any Credit Party under or in respect
of this Agreement, any Collateral Document or any portion of the Trust
Estate.
6.6 Moneys to be Held in Trust. All moneys received by
the Collateral Trustee under or pursuant to any provision of this Agreement
shall be held in trust for the purposes for which they were paid or are held.
6.7 Resignation of the Collateral Trustee. (a) The
Collateral Trustee may at any time, by giving 30 days' prior written notice
to the Borrower and the Secured Parties, resign and be discharged of the
responsibilities hereby created, such resignation to become effective upon
the earlier of (i) 30 days from the date of such notice and (ii) the
appointment of a successor collateral trustee or collateral trustees by the
Required Lenders. If no successor collateral trustee or collateral trustees
shall be appointed and approved within 30 days from the date of the giving of
the aforesaid notice of resignation, the Collateral Trustee (notwithstanding
the termination of all of its other duties and obligations hereunder by
reason of such resignation) shall, or any Secured Party or the Borrower may,
apply to any court of competent jurisdiction to appoint a successor
collateral trustee or collateral trustees (which may be an individual or
individuals) to act until such time, if any, as a successor collateral
trustee or collateral trustees shall have been appointed as above provided.
Any successor collateral trustee or collateral trustees so appointed by such
court shall immediately and without further act be superseded by any
successor collateral trustee or collateral trustees approved by the Required
Lenders as above provided.
(b) If at any time the Collateral Trustee shall resign or
otherwise become incapable of acting, or if at any time a vacancy shall occur
in the office of Collateral Trustee for any other cause, a successor
collateral trustee or collateral trustees may be appointed by the Required
Lenders, and the powers, duties, authority and title of the predecessor
collateral trustee or collateral trustees terminated and canceled without
procuring the resignation of such predecessor collateral trustee or
collateral trustees, and without any other formality (except as may be
required by applicable law) other than appointment and designation of a
successor collateral trustee or collateral trustees in writing, duly
acknowledged, delivered to the predecessor collateral trustee or collateral
trustees, and filed for record in each public office, if any, in which this
Agreement is required to be filed.
(c) The appointment and designation referred to in
Section 6.7(b) shall, after any required filing, be full evidence of the
right and authority to make the same and of all the facts therein recited,
and this Agreement shall vest in such successor collateral trustee or
collateral trustees, without any further act, deed or conveyance, all of the
estate and title of its predecessor or their predecessors, and upon such
filing for record the successor collateral trustee or collateral trustees
shall become fully vested with all the estates, properties, rights, powers,
trusts, duties, authority and title of its predecessor or their predecessors;
but such predecessor or predecessors shall, nevertheless, on the written
request of the Required Lenders or their successor collateral trustee or
collateral trustees, execute and deliver an instrument transferring to such
successor or successors all the estates, properties, rights, powers, trusts,
duties, authority and title of such predecessor or predecessors hereunder and
shall deliver all securities and moneys held by it or them to such successor
collateral trustee or collateral trustees.
(d) Any required filing for record of the instrument appointing
a successor collateral trustees as hereinabove provided shall be at the
expense of the Borrower.
6.8 Status of Successors to Collateral Trustee. Except
as permitted by Section 6.7, every successor to the Collateral Trustee
appointed pursuant to Section 6.7 shall be a bank or trust company in good
standing and having power so to act, incorporated under the laws of the
United States or any State thereof or the District of Columbia, and having
its principal corporate trust office within the forty-eight contiguous
States, and shall also have capital, surplus and undivided profits of not
less than $500,000,000.
6.9 Merger of Collateral Trustee. Any Person into which
the Collateral Trustee may be merged, or with which it may be consolidated,
or any Person resulting from any merger or consolidation to which Collateral
Trustee shall be a party, shall be Collateral Trustee under this Agreement
without the execution or filing of any paper or any further act on the part
of the parties hereto.
6.10 Appointment of Additional and Separate Collateral
Trustee. Whenever (i) the Collateral Trustee shall deem it
necessary or prudent in order to conform to any law of any jurisdiction in
which all or any part of the Collateral shall be situated or to make any
claim or bring any suit with respect to or in connection with the Collateral,
or (ii) the Collateral Trustee shall be advised by counsel satisfactory to it
that it is so necessary or prudent in the interest of the Secured Parties,
then in any such case, the Collateral Trustee shall execute and deliver from
time to time all instruments and agreements necessary or proper to constitute
another bank or trust company or one or more persons approved by the
Collateral Trustee either to act as additional trustee or trustees of all or
any part of the Trust Estate, jointly with the Collateral Trustee, or to act
as separate trustee or trustees of all or any part of the Trust Estate, in
any such case with such powers as may be provided in such instruments or
agreements, and to vest in such bank, trust company or person as such
additional trustee or separate trustee, as the case may be, any property,
title, right or power of the Collateral Trustee deemed necessary or advisable
by the Collateral Trustee. Each of the Credit Parties hereby consents to all
actions taken by the Collateral Trustee under the foregoing provisions of
this Section 6.10.
SECTION 7. RELEASE OF TRUST ESTATE AND COLLATERAL; EXPIRATION OF
CERTAIN RIGHTS
7.1 Release of Trust Estate; Expiration of Rights of Certain
Secured Parties. Notwithstanding any contrary provision herein,
the Trust Estate shall be assigned and released to (i) the Administrative
Agent for the benefit of the Lenders and the other holders of Credit
Agreement Obligations (and such release confirmed in a written instrument in
form satisfactory to the Required Lenders) on the earlier of the date (a) on
which all the Existing Senior Note Obligations shall have been paid to the
holders thereof or (b) that is ten days after the provisions of the Existing
Senior Note Indenture that require equal and ratable security shall be held
by a court of competent jurisdiction to be invalid, void or unenforceable, or
(ii) the Credit Parties on the date on which all the Credit Agreement
Obligations have been paid in full, the Commitments have been terminated and
no Letters of Credit are outstanding, the Administrative Agent has given
written notice thereof to the Collateral Trustee and all the Collateral
Trustee's Fees have been paid in full.
7.2 Releases of Collateral. At any time during which no
Triggering Event has occurred and is continuing, the Lien of any Shared
Collateral Document may, at any time, be released in whole or in part by the
Collateral Trustee pursuant to written directions signed by the requisite
Lenders under the Credit Agreement or by the Administrative Agent. No such
release shall require any consent or approval by any other Secured Party.
7.3 Amendment of Shared Collateral Documents. At any
time during which no Triggering Event has occurred and is continuing, the
requisite Lenders under the Credit Agreement shall have the exclusive
authority to direct the Collateral Trustee to amend any provision of any
Shared Collateral Document, without any consent or approval of, or prior
notice to, any other Secured Party.
SECTION 8 MISCELLANEOUS
8.1 Equal and Ratable Security. This Agreement is
intended solely to comply with the provisions of the Existing Senior Notes
Indenture to secure the unpaid principal of, premium, if any, and accrued
interest on the Existing Senior Notes, equally and ratably with the Credit
Agreement Obligations in respect of each Mortgage on Principal Property and
any shares of Capital Stock or Debt (as such terms are defined in the
Existing Senior Notes Indenture). To the extent that the rights and benefits
herein or in any of the Shared Collateral Documents conferred on the holders
of the Existing Senior Notes or the Indenture Trustee shall be held to exceed
the rights and benefits required so to be conferred by such provisions, such
rights and benefits shall be limited so as to provide to such holders and the
Indenture Trustee only those rights and benefits that are required by such
provisions. Any and all rights not herein expressly given to the Indenture
Trustee are expressly reserved to the Administrative Agent and the Lenders,
it being understood that in the absence of a requirement to provide equal and
ratable security set forth in the Existing Senior Notes Indenture, this
Agreement would not have been accepted by the Agents or the Lenders.
8.2 Amendments, Supplements and Waivers. With the
written consent of the requisite Lenders under the Credit Agreement, the
Collateral Trustee and the Credit Parties may from time to time amend,
supplement or waive any provision hereof; provided, however, that, after the
occurrence and during the continuance of a Trigger Event, no such amendment,
supplement or waiver shall without the written consent of the Indenture
Trustee adversely affect the rights of the holders of the Existing Senior
Notes to equal and ratable security to the extent and for the periods
contemplated by this Agreement. Any such amendment, supplement or waiver
shall be binding upon the Secured Parties and their respective successors and
assigns.
8.3 Notices. All notices, requests, demands and other
communications provided for or permitted hereunder shall be in writing
(including telecopy communications) and shall be sent by mail, telecopier or
hand delivery:
(i) If to any Credit Party, to the Borrower at its address at:
4520 Executive Park Drive, Montgomery, Alabama 36116-1602 Attention:
General Counsel and Chief Financial Officer, or at such other address
as shall be designated by it in a written notice to the Collateral
Trustee.
(ii) If to the Collateral Trustee, to it at its address at: Bank
of America, N.A., 600 Peachtree Street N.E., Atlanta, Georgia 30308,
Attention: Joan Martin, or at such other address as shall be designated
by it in a written notice to the Borrower and the Secured Parties.
(iii) If to the Indenture Trustee, to it at its address at: 135
South LaSalle Street, Chicago, Illinois 60603, Attention: Corporate
Trust Services Division, or at such other address as shall be
designated by it in a written notice to the Borrower and the Collateral
Trustee.
(iv) If to the Administrative Agent, to it at its address
at: Bank of America, N.A., 600 Peachtree Street N.E., Atlanta, Georgia
30308, Attention: Joan Martin or at such other address as shall be
designated by it in a written notice to the Borrower and the Collateral
Trustee.
All such notices, requests, demands and communications shall be deemed to
have been duly given or made, when delivered by hand of five business days
after being deposited in the mail, postage prepaid, and when telecopied;
provided, however, that any notice, request, demand or other communication to
the Collateral Trustee shall not be effective until received.
8.4 Headings. Headings used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
8.5 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
8.6 Dealings with the Credit Parties. Upon any
application or demand by any Credit Party to the Collateral Trustee to take
or permit any action under any of the provisions of this Agreement or under
any Collateral Document or such Credit Party, as appropriate, shall furnish
to the Collateral Trustee a certificate of an appropriate officer stating
that all conditions precedent, if any, provided for in this Agreement or such
Collateral Document, as the case may be, relating to the proposed action have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Agreement or any Collateral Document relating to such
particular application or demand, no additional certificate or opinion need
be furnished.
8.7 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and shall inure to the
benefit of the Secured Parties and their respective successors and assigns,
and nothing herein or in any Collateral Document is intended or shall be
construed to give any other person any right, remedy or claim under, to or in
respect of this Agreement, the Collateral or the Trustee Estate.
8.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW.
8.9 Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be an original and all of which
taken together shall constitute one and the same instrument.
8.10 Consent to Jurisdiction and Service of Process. Each
Credit Party 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 Shared Collateral Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted
by applicable law, all claims in respect of any such action or proceeding may
be heard and determined in such New York State or, to the extent permitted by
law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that the Collateral Trustee or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Shared
Collateral Documents or Credit Documents against any Credit Party or its
properties in the courts of any jurisdiction.
(b) Each Credit Party hereby 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 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.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 8.3. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
8.11 Waiver Of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 8.11.
8.12 Additional Credit Parties. Each Subsidiary of the
Borrower that is required to become a party to this Agreement pursuant to
Section 6.10(c) of the Credit Agreement of the Credit Agreement which owns or
possesses property of a type that would be considered Collateral shall become
an Credit Party for all purposes of this Agreement upon execution and
delivery by the Collateral Trustee and a Subsidiary of an instrument in the
form of Annex I. The execution and delivery of such instrument shall not
require the consent of any other party hereunder. The rights and obligations
of each Credit Party hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary as a party to this
Agreement.
IN WITNESS WHEREOF, each of the undersigned has caused this
COLLATERAL TRUST AGREEMENT to be duly executed and delivered as of the date
first above written.
HOLDINGS
--------
BLOUNT INTERNATIONAL, INC.
By: ____________________________
Name:
Title:
BORROWER
--------
BLOUNT, INC.
By: ____________________________
Name:
Title:
SUBSIDIARIES
------------
BI HOLDINGS CORP.
By:________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:________________________
Name:
Title:
BI, L.L.C.
By:________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:________________________
Name:
Title:
4520 CORP., INC.
By:________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:________________________
Name:
Title:
FREDERICK MANUFACTURING
CORPORATION
By:________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:________________________
Name:
Title:
COLLATERAL TRUSTEE
------------------
BANK OF AMERICA, N.A.
as Collateral Trustee
By: ____________________________
Name:
Title:
Annex 1 to the
COLLATERAL TRUST AGREEMENT
SUPPLEMENT NO. ___ dated as of __________, __, to the COLLATERAL
TRUST AGREEMENT dated as of August 19, 1999 (the "Collateral Trust
Agreement"), among Blount International, Inc., a Delaware corporation
("Holdings"), Blount, Inc., a Delaware corporation (the "Borrower"); each of
the Subsidiaries of the Borrower party thereto (Holdings, the Borrower, each
such Subsidiary, together with any other Subsidiary that may become a party
hereto as provided herein, the "Credit Parties"), and Bank of America, N.A.,
as collateral trustee (in such capacity, the "Collateral Trustee") for the
holders from time to time of the Secured Obligations (as defined in the
Collateral Trust Agreement).
Reference is made to the Credit Agreement, dated as of August 19,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the several banks and
other financial institutions or entities from time to time parties thereto
(the "Lenders"), Lehman Brothers Inc., as advisor, book manager and lead
arranger, Lehman Commercial Paper Inc., as syndication agent, and Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Collateral Trust
Agreement or, if not defined in the Collateral Trust Agreement, in the Credit
Agreement.
The Credit Parties have entered into the Collateral Trust
Agreement in order to induce the Lenders to make extensions of credit under
the Credit Agreement. Each Subsidiary of the Borrower that is required to
become a party to the Non-Shared Guarantee and Collateral Agreement pursuant
to Section 6.10(c) of the Credit Agreement which owns or possesses property
of a type that would be considered Collateral under the Collateral Trust
Agreement is required to enter into the Collateral Trust Agreement. Section
8.12 of the Collateral Trust Agreement provides that such Subsidiaries may
become party to the Collateral Trust Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary
(the "New Credit Party") is executing this Supplement in accordance with the
requirements of the Credit Agreement in order to induce the Lenders to make
additional extensions of credit thereunder and as consideration for
extensions of credit previously made.
Accordingly, the Collateral Trustee and the New Credit Party
agree as follows:
Section 1. Collateral Trust Agreement. In accordance with
Section 8.12 of the Collateral Trust Agreement, the New Credit Party by its
signature below becomes a Credit Party under the Collateral Trust Agreement
with the same force and effect as if originally named therein as an Credit
Party and the New Credit Party hereby agrees to all the terms and provisions
of the Collateral Trust Agreement applicable to it as an Credit Party
thereunder. Each reference to an "Credit Party" in the Collateral Trust
Agreement shall be deemed to include the New Credit Party. The Collateral
Trust Agreement is hereby incorporated herein by reference.
Section 2. Representations and Warranties. The New Credit Party
represents and warrants to the Collateral Trustee and the other Secured
Parties that this Supplement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
Section 3. Counterparts; Effectiveness. This Supplement may be
executed in counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Supplement shall become effective when the Collateral Trustee shall have
received counterparts of this Supplement that, when taken together, bear the
signatures of the New Credit Party and the Collateral Trustee. Delivery of
an executed signature page to this Supplement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart of this
Supplement.
Section 4. Full Force and Effect. Except as expressly
supplemented hereby, the Collateral Trust Agreement shall remain in full
force and effect.
SECTION 5. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. Expenses of Collateral Trustee. The New Credit Party
agrees to reimburse the Collateral Trustee for its reasonable out-of-pocket
expenses in connection with this Supplement, including the reasonable fees,
other charges and disbursements of counsel for the Collateral Trustee.
IN WITNESS WHEREOF, the New Credit Party and the Collateral Trustee
have duly executed this Supplement to the Collateral Trust Agreement as of
the day and year first above written.
NEW CREDIT PARTY
----------------
[NAME OF SUBSIDIARY WHICH IS THE NEW
CREDIT PARTY]
By:_______________________
Name:
Title:
COLLATERAL TRUSTEE
------------------
BANK OF AMERICA, N.A.
as Collateral Trustee
By:________________________
Name:
Title:
<PAGE>
EXHIBIT B
[FORM OF COMPLIANCE CERTIFICATE]
This Compliance Certificate is delivered to you pursuant to
Section 6.2 of the Credit Agreement, dated as of August 19, 1999, as
amended, supplemented or modified from time to time (the "Credit Agreement"),
among BLOUNT INTERNATIONAL, INC., a corporation duly organized and validly
existing under the law of the State of Delaware corporation ("Holdings"),
BLOUNT, INC., a corporation duly organized and validly existing under the law
of the State of Delaware (the "Borrower"), the several banks and other
financial institutions or entities from time to time parties thereto (the
"Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and book manager
(in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER INC., as
syndication agent (in such capacity, the "Syndication Agent"), and BANK OF
AMERICA, N.A., as administrative agent (in such capacity, the "Administrative
Agent"). Terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined.
1. I am the duly elected, qualified and acting [Chief
Financial Officer] of Holdings and the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Credit Agreement and the
Credit Documents and have made or caused to be made under my supervision, a
review in reasonable detail of the transactions and condition of the Borrower
during the accounting period covered by the financial statements attached
hereto as Attachment I (the "Financial Statements"). Such review did not
disclose the existence during or at the end of the accounting period covered
by the Financial Statements, and I have no knowledge of the existence, as of
the date of this Certificate, of any condition or event which constitutes a
Default or Event of Default [, except as set forth below].
4. Attached hereto as Attachment 2 are the computations
showing compliance with the covenants set forth in Section 7.1, 7.2, 7.5,
7.6, 7.7 and 7.8 of the Credit Agreement.
IN WITNESS WHEREOF, I execute this Certificate this ___ day of ____ 1999/200_.
BLOUNT, INC.
By:___________________________
Name:
Title:
Attachment 2
to Exhibit B
The information described herein is as of ________________1999/200_,
and pertains to the period from ______________ [1999/2000_] to
______________[1999/200_].
[Set forth Covenant Calculations]
<PAGE>
EXHIBIT C
[FORM OF CLOSING CERTIFICATE]
Pursuant to subsection 5.1(m) of the Credit Agreement dated as of
August 19, 1999 as amended, supplemented or modified from time to time (the
"Credit Agreement"), among BLOUNT INTERNATIONAL, INC., a corporation duly
organized and validly existing under the law of the State of Delaware
("Holdings"), BLOUNT, INC., a corporation duly organized and validly existing
under the law of the State of Delaware (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties
thereto (the "Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and
book manager (in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), and
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the
"Administrative Agent"), the undersigned [INSERT TITLE OF OFFICER] of [INSERT
NAME OF COMPANY] (the "Company") hereby certifies as follows:
1. The representations and warranties of the Company set forth
in each of the Credit Documents to which it is a party are true and correct
on and as of the date hereof with the same effect as if made on the date
hereof, except for representations and warranties expressly stated to relate
to a specific earlier date, in which case such representations and warranties
were true and correct in all material respects as of such earlier date.
2. _______________ is the duly elected and qualified Corporate
Secretary of the Company and the signature set forth for such officer below
is such officer's true and genuine signature.
3. No Default or Event of Default has occurred and is
continuing as of the date hereof or will have occurred and be continuing
after giving effect to the Loans to be made on the Closing Date. [Borrower
only]
4. The conditions precedent set forth in Section 5.1 of the
Credit Agreement have been satisfied as of the Closing Date. [Borrower only]
The undersigned Corporate Secretary of the Company certifies as
follows:
5. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Company, nor has any other event
occurred adversely affecting or threatening the continued corporate existence
of the Company.
6. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
7. Attached hereto as Annex 1 is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on
_______________; such resolutions have not in any way been amended, modified,
revoked or rescinded, have been in full force and effect since their adoption
to and including the date hereof and are now in full force and effect and are
the only corporate proceedings of the Company now in force relating to or
affecting the matters referred to therein.
8. Attached hereto as Annex 2 is a true and complete copy of
the By-Laws of the Company as in effect on the date hereof.
9. Attached hereto as Annex 3 is a true and complete copy of
the Certificate of Incorporation of the Company as in effect on the date
hereof, and such certificate has not been amended, repealed, modified or
restated.
10. The following persons are now duty elected and qualified
officers of the Company holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Company at all times since the date indicated next to their respective titles
to and including the date hereof, and the signatures appearing opposite their
respective names below are the true and genuine signatures of such officers,
and each of such officers is duly authorized to execute and deliver on behalf
of the Company each of the Credit Documents to which it is a party and any
certificate or other document to be delivered by the Company pursuant to the
Credit Documents to which it is a party:
Name Office Date Signature
IN WITNESS WHEREOF, the undersigned have hereunto set our names
as of the date set forth below.
By: By:
Name: Name:
Title: Title:
Date: August 19, 1999
<PAGE>
EXHIBIT E
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of August 19,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among BLOUNT INTERNATIONAL, INC., a corporation duly
organized and validly existing under the law of the State of Delaware
("Holdings"), BLOUNT, INC., a corporation duly organized and validly existing
under the law of the State of Delaware (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties
thereto (the "Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and
book manager (in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), and
___________ as administrative agent (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
The Assignor identified on Schedule I hereto (the "Assignor") and
the Assignee identified on Schedule I hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to the
Assignor, as of the Assignment Effective Date (as defined below), the
interest described in Schedule I hereto (the "Assigned Interest") in and to
the Assignor's rights and obligations under the Credit Agreement with respect
to those credit facilities contained in the Credit Agreement as are set forth
on Schedule 1 hereto (individually, an "Assigned Facility"; collectively, the
"Assigned Facilities"), in a principal amount for each Assigned Facility as
set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Credit Document or
any other instrument or document furnished pursuant thereto, other than that
the Assignor has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any
of its Subsidiaries or any other obligor or the performance or observance by
the Borrower, any of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement or any other Credit
Document or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches any Notes held by it evidencing the Assigned
Facilities and (i) requests that the Administrative Agent, upon request by
the Assignee, exchange the attached Notes for a new Note or Notes payable to
the Assignee and (ii) if the Assignor has retained any interest in the
Assigned Facility, requests that the Administrative Agent exchange the
attached Notes for a new Note or Notes payable to the Assignor, in each case
in amounts which reflect the assignment being made hereby (and after giving
effect to any other assignments which have become effective on the Assignment
Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 4.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon the Assignor,
the Agents or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement, the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Agents to take such action
as agent on its behalf and to exercise such powers and discretion under the
Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agents
by the terms thereof, together with such powers as are incidental thereto;
and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it
as a Lender including, if it is organized under the laws of a jurisdiction
outside the United States, its obligation pursuant to Section 2.20(d) of the
Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Assignment Effective Date of Assignment described in Schedule I hereto
(the "Assignment Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent
for acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Assignment Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording by
the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Assignment Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) [to the Assignor for amounts which have
accrued to the Assignment Effective Date and to the Assignee for amounts
which have accrued subsequent to the Assignment Effective Date] [to the
Assignee whether such amounts have accrued prior to the Assignment Effective
Date or accrue subsequent to the Assignment Effective Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments by the Agent
for periods prior to the Assignment Effective Date or with respect to the
making of this assignment directly between themselves.]
6. From and after the Assignment Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to the extent provided
in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Credit Documents and shall be bound by
the provisions thereof and (b) the Assignor shall, to the extent provided in
this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written
by their respective duly authorized officers on Schedule I hereto.
Schedule I
to Assignment and Acceptance
Name of Assignor: _______________________________________
Name of Assignee: _______________________________________
Assignment Effective Date: _______________
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned(1)
$______________ _____________%
[Name of Assignee] [Name of Assignor]
By:__________________________________ By:_________________________
Title: Title:
(1) Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments
of all Lenders
Accepted: Consented To:
___________ [BLOUNT, INC.](2)
as Administrative Agent
By:_______________________________ By:____________________________
Title: Title:
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent
By:____________________________
Title:
[SWING LINE LENDER](2)
By:____________________________
Title:
[ISSUER LENDER](2)
By:____________________________
Title:
(2) Include if applicable consent is required pursuant to Section 10.6(c)
of the Credit Agreement.
<PAGE>
EXHIBIT G-1
[FORM OF TERM NOTE]
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$________ New York, New York
August __,1999
FOR VALUE RECEIVED, the undersigned, BLOUNT, INC., a corporation
duly organized and validly existing under the law of the State of Delaware
(the "Borrower"), hereby unconditionally promises to pay to __________ (the
"Lender") or its registered assigns at the Payment Office specified in the
Credit Agreement (as hereinafter defined) in lawful money of the United
States and in immediately available funds, the principal amount of (a)
___________ ($________) or, if less, (b) the unpaid principal amount of the
Tranche [A] [B] Term Loan made by the Lender pursuant to Section 2.1 of the
Credit Agreement. The principal amount shall be paid in the amounts and on
the dates specified in Section 2.3 of the Credit Agreement. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in Section 2.15 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date, Type and amount of
the Tranche [A] [B] Term Loan and the date and amount of each payment or
prepayment of principal with respect thereto, each conversion of all or a
portion thereof to another Type, each continuation of all or a portion
thereof as the same Type and, in the case of Eurodollar Loans, the length of
each Interest Period with respect thereto. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed.
The failure to make any such endorsement or any error in any such endorsement
shall not affect the obligations of the Borrower in respect of the Tranche
[A] [B] Term Loan.
This Note (a) is one of the Term Notes referred to in the Credit
Agreement dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among BLOUNT
INTERNATIONAL, INC., the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
LEHMAN BROTHERS INC., as advisor, lead arranger and book manager (in such
capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER INC., as syndication agent
("LCPI" and, in such capacity, the "Syndication Agent"), and BANK OF AMERICA,
N.A. as administrative agent (in such capacity, the "Administrative Agent"),
(b) is subject to the provisions of the Credit Agreement and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the
Credit Agreement. This Note is secured and guaranteed as provided in the
Credit Documents. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee
were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF
THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BLOUNT, INC.
By:___________________________
Name:
Title:
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENT OF BASE RATE LOANS
Amount of Unpaid
Amount Amount of Base Rate Principal
Amount Converted Principal Loans Balance
of Base to Base of Base Converted to of Base
Rate Rate Rate Loans Eurodollar Rate Notations
Date Loans Loans Repaid Loans Loans Made By
- ------ --------- ---------- ------------ -------------- ----------- ----------
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Schedule B
to Term Note
LOANS, CONVERSIONS AND REPAYMENT OF BASE RATE LOANS
Interest Amount of Amount of
Amount Period and Principal Eurodollar Unpaid
Amount Converted Eurodollar of Loans Principal
of to Rate With Eurodollar Converted Balance of
Eurodollar Eurodollar Respect Loans to Base Eurodollar Notations
Date Loans Loans Thereto Repaid Rate Loans Loans Made By
- ---- ---------- ---------- ---------- ---------- ---------- ---------- ---------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
EXHIBIT G-2
[FORM OF REVOLVING CREDIT NOTE]
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ ________ New York, New York
August __, 1999
FOR VALUE RECEIVED, the undersigned, BLOUNT, INC., a corporation
duly organized and validly existing under the law of the State of Delaware
(the "Borrower"), hereby unconditionally promises to pay to ___________ (the
"Lender") or its registered assigns at the Payment Office specified in the
Credit Agreement (as hereinafter defined) in lawful money of the United
States and in immediately available funds, on the Revolving Credit
Termination Date the principal amount of (a) ___________ ($________), or, if
less, (b) the aggregate unpaid principal amount of all Revolving Credit Loans
made by the Lender to the Borrower pursuant to Section 2.4 of the Credit
Agreement. The Borrower further agrees to pay interest in like money at such
Payment Office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.15 of the
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date, Type and amount of
each Revolving Credit Loan made pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto. Each such endorsement shall constitute prima facie
evidence of the accuracy of the information endorsed. The failure to make
any such endorsement or any error in any such endorsement shall not affect
the obligations of the Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in
the Credit Agreement dated as of August 19, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among BLOUNT
INTERNATIONAL, INC., the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
LEHMAN BROTHERS INC., as advisor, lead arranger and book manager (in such
capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER INC., as syndication agent
("LCPI" and, in such capacity, the "Syndication Agent"), and BANK OF AMERICA,
N.A. as administrative agent (in such capacity, the "Administrative Agent"),
(b) is subject to the provisions of the Credit Agreement and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the
Credit Agreement. This Note is secured and guaranteed as provided in the
Credit Documents. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee
were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF
THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BLOUNT, INC.
By:___________________________
Name:
Title:
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENT OF BASE RATE LOANS
Amount of Unpaid
Amount Amount of Base Rate Principal
Amount Converted Principal Loans Balance
of Base to Base of Base Converted to of Base
Rate Rate Rate Loans Eurodollar Rate Notations
Date Loans Loans Repaid Loans Loans Made By
- ------ --------- ---------- ------------ -------------- ----------- ----------
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Schedule B
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENT OF BASE RATE LOANS
Interest Amount of Amount of
Amount Period and Principal Eurodollar Unpaid
Amount Converted Eurodollar of Loans Principal
of to Rate With Eurodollar Converted Balance of
Eurodollar Eurodollar Respect Loans to Base Eurodollar Notations
Date Loans Loans Thereto Repaid Rate Loans Loans Made By
- ---- ---------- ---------- ---------- ---------- ---------- ---------- ---------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
EXHIBIT G-3
[FORM OF SWING LINE NOTE]
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT
REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED
HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE
AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
$________ New York, New York
August __, 1999
FOR VALUE RECEIVED, BLOUNT, INC., a corporation duly organized
and validly existing under the law of the State of Delaware (the "Borrower"),
hereby unconditionally promises to pay to ___________ (the "Swing Line
Lender") or its registered assigns at the Payment Office specified in the
Credit Agreement (as hereinafter defined) in lawful money of the United
States and in immediately available funds, on the Revolving Credit
Termination Date the principal amount of (a) ___________ ($________), or, if
less, (b) the aggregate unpaid principal amount of all Swing Line Loans made
by the Swing Line Lender to the Borrower pursuant to Section 2.6 of the
Credit Agreement, as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates and on the dates specified in
Section 2.15 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date and amount of each
Swing Line Loan made pursuant to the Credit Agreement and the date and amount
of each payment or prepayment of principal thereof. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement or any error in any such
endorsement shall not affect the obligations of the Borrower in respect of
any Swing Line Loan.
This Note (a) is the Swing Line Note referred to in the Credit
Agreement dated as of August 19, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among BLOUNT
INTERNATIONAL, INC., the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto (the "Lenders"),
LEHMAN BROTHERS INC., as advisor, lead arranger and book manager (in such
capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER INC., as syndication agent
("LCPI" and, in such capacity, the "Syndication Agent"), and BANK OF AMERICA,
N.A., as administrative agent (in such capacity, the "Administrative Agent"),
(b) is subject to the provisions of the Credit Agreement and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the
Credit Agreement. This Note is secured and guaranteed as provided in the
Credit Documents. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee
were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note
shall become, or may be declared to be, immediately due and payable, all as
provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO TIRE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND
IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF
THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BLOUNT, INC.
By:___________________________
Name:
Title:
Schedule A
to Swing Line Note
LOANS, CONVERSIONS AND REPAYMENT OF BASE RATE LOANS
Amount of
Amount of Principal Unpaid Principal
Swing Line of Swing Line Balance of Swing
Date Loans Loans Repaid Line Loans Notation Made By
- ------- ------------- ----------------- -------------------- ----------------
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
<PAGE>
EXHIBIT H
[FORM OF PREPAYMENT OPTION NOTICE]
Attention of
Telecopy No.
[Date]
Ladies and Gentlemen:
The undersigned, BANK OF AMERICA, N.A., as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders, refers to the
Credit Agreement, dated as of August 19, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among BLOUNT
INTERNATIONAL, INC., a corporation duly organized and validly existing under
the law of the State of Delaware ("Holdings"), BLOUNT, INC., a corporation
duly organized and validly existing under the law of the State of Delaware
(the "Borrower"), the several banks and other financial institutions or
entities from time to time parties thereto (the "Lenders"), LEHMAN BROTHERS
INC., as advisor, lead arranger and book manager (in such capacity, the
"Arranger"), LEHMAN COMMERCIAL PAPER INC., as syndication agent ("LCPI" and,
in such capacity, the "Syndication Agent"), and the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Administrative Agent hereby gives notice of an offer of
prepayment made by the Borrower pursuant to Section 2.18(d) of the Credit
Agreement of the Tranche B Prepayment Amount. Amounts applied to prepay the
Tranche B Term Loans shall be applied pro rata to the Tranche B Term Loan
held by you. The portion of the prepayment amount to be allocated to the
Tranche B Term Loan held by you and the date on which such prepayment will be
made to you (should you elect to receive such prepayment) are set forth
below:
(A) Total Tranche B Term Loan Prepayment Amount __________
Amount
(B) Portion of Tranche B Term Loan __________
Prepayment Amount to be received by you
(C) Prepayment Date (10 Business Days after the __________
date of this Prepayment Option Notice)
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TRANCHE B TERM LOAN
PREPAYMENT AMOUNT TO BE ALLOCATED TO YOU ON THE MANDATORY PREPAYMENT DATE
INDICATED IN PARAGRAPH (B) ABOVE, please sign this notice in the space
provided below and indicate the percentage (not exceeding 50%) of the Tranche
B Term Loan Prepayment Amount otherwise payable which you do not wish to
receive. Please return this notice as so completed via telecopy to the
attention of the Administrative Agent at _________________ no later than
12:00 NOON., New York City time, on the Prepayment Date, at Telecopy No.
[___________].
IF YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF THE
TRANCHE B TERM LOAN PREPAYMENT ALLOCATED TO YOU ON THE MANDATORY PREPAYMENT
DATE.
BANK OF AMERICA, N.A.,
as Administrative Agent
By:___________________________
Name:
Title:
[NAME OF LENDER]
By:___________________________
Name:
Title:
Percentage of Tranche B
Prepayment Amount
Declined: ______%
<PAGE>
EXHIBIT I
[FORM OF NON-U.S. LENDER CERTIFICATE]
Reference is made to the Credit Agreement, dated as of August 19,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among BLOUNT INTERNATIONAL, INC., a corporation duly
organized and validly existing under the law of the State of Delaware
("Holdings"), BLOUNT, INC., a corporation duly organized and validly existing
under the law of the State of Delaware (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties
thereto (the "Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and
book manager (in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER
INC., as syndication agent (in such capacity, the "Syndication Agent"), and
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the
"Administrative Agent"). Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement.
_____________ (the "Non-U.S. Lender") is providing this
certificate pursuant to subsection 2.20(d) of the Credit Agreement. The Non-
U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by Note(s) in respect of
which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"). In this regard, the Non-U.S. Lender further represents and
warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any
application made to a rating agency or qualification for
any exemption from tax, securities law or other legal
requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By:___________________________
Name:
Title:
Date: ________________
<PAGE>
EXHIBIT J
[FORM OF LENDER ADDENDUM]
Reference is made to the Credit Agreement, dated as of August 19,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among BLOUNT INTERNATIONAL, INC., a corporation duly
organized and validly existing under the law of the State of Delaware
("Holdings"), BLOUNT, INC., a corporation duly organized and validly existing
under the law of the State of Delaware (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties
thereto (the "Lenders"), LEHMAN BROTHERS INC., as advisor, lead arranger and
book manager (in such capacity, the "Arranger"), LEHMAN COMMERCIAL PAPER
INC., as syndication agent ("LCPI" and, in such capacity, the "Syndication
Agent"), and BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the
parties hereto as provided in Section 10.16 of the Credit Agreement, the
undersigned hereby becomes a Lender thereunder having the Commitments set
forth in Schedule I hereto, effective as of the Effective Date.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed
counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly
authorized officers as of this 19th day of August, 1999.
[NAME OF LENDER]
By:___________________________
Name:
Title:
Accepted and agreed:
BLOUNT INTERNATIONAL, INC.
BLOUNT, INC.
By:___________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER INC., as
Syndication Agent
By:___________________________
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent
By:___________________________
Name:
Title:
Schedule I
to
Lender Addendum
<PAGE>
EXHIBIT 4.1
EXECUTION COPY
BLOUNT, INC.,
As Issuer
$450,000,000
13% SENIOR SUBORDINATED NOTES DUE 2009
_____________________________________
INDENTURE
Dated as of August 19, 1999
_____________________________________
_____________________________________
United States Trust Company of New York,
As Trustee
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.01. DEFINITIONS. 1
SECTION 1.02. OTHER DEFINITIONS. 19
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. 19
SECTION 1.04. RULES OF CONSTRUCTION. 19
ARTICLE 2. THE NOTES 20
SECTION 2.01. FORM AND DATING. 20
SECTION 2.02. EXECUTION AND AUTHENTICATION. 21
SECTION 2.03. REGISTRAR AND PAYING AGENT. 21
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. 22
SECTION 2.05. HOLDER LISTS. 22
SECTION 2.06. TRANSFER AND EXCHANGE. 22
SECTION 2.07. REPLACEMENT NOTES. 32
SECTION 2.08. OUTSTANDING NOTES. 33
SECTION 2.09. TREASURY NOTES. 33
SECTION 2.10. TEMPORARY NOTES. 33
SECTION 2.11. CANCELLATION. 33
SECTION 2.12. DEFAULTED INTEREST. 33
SECTION 2.13. CUSIP NUMBERS. 34
ARTICLE 3. REDEMPTION AND PREPAYMENT 34
SECTION 3.01. NOTICES TO TRUSTEE. 34
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. 34
SECTION 3.03. NOTICE OF REDEMPTION. 35
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. 35
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. 35
SECTION 3.06. NOTES REDEEMED IN PART. 36
SECTION 3.07. OPTIONAL REDEMPTION. 36
SECTION 3.08. MANDATORY REDEMPTION. 36
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS. 36
ARTICLE 4. COVENANTS 38
SECTION 4.01. PAYMENT OF NOTES. 38
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. 38
SECTION 4.03. REPORTS. 38
SECTION 4.04. COMPLIANCE CERTIFICATE. 39
SECTION 4.05. TAXES. 39
SECTION 4.06. SALE AND LEASEBACK TRANSACTIONS. 39
SECTION 4.07. RESTRICTED PAYMENTS. 40
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. 42
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED
STOCK. 43
SECTION 4.10. ASSET SALES. 45
SECTION 4.11. TRANSACTIONS WITH AFFILIATES. 46
SECTION 4.12. LIENS. 47
SECTION 4.13. ADDITIONAL GUARANTEES. 47
SECTION 4.14. CORPORATE EXISTENCE. 47
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. 48
SECTION 4.16. NO SENIOR SUBORDINATED DEBT. 49
SECTION 4.17. PAYMENTS FOR CONSENT. 49
SECTION 4.18. BUSINESS ACTIVITIES. 49
ARTICLE 5. SUCCESSORS 49
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. 49
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. 50
ARTICLE 6. DEFAULTS AND REMEDIES 51
SECTION 6.01. EVENTS OF DEFAULT. 51
SECTION 6.02. ACCELERATION. 52
SECTION 6.03. OTHER REMEDIES. 53
SECTION 6.04. WAIVER OF PAST DEFAULTS. 53
SECTION 6.05. CONTROL BY MAJORITY. 53
SECTION 6.06. LIMITATION ON SUITS. 53
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. 54
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. 54
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. 54
SECTION 6.10. PRIORITIES. 54
SECTION 6.11. UNDERTAKING FOR COSTS. 55
ARTICLE 7. TRUSTEE 55
SECTION 7.01. DUTIES OF TRUSTEE. 55
SECTION 7.02. RIGHTS OF TRUSTEE. 56
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. 57
SECTION 7.04. TRUSTEE'S DISCLAIMERS. 57
SECTION 7.05. NOTICE OF DEFAULTS. 57
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES. 57
SECTION 7.07. COMPENSATION AND INDEMNITY. 57
SECTION 7.08. REPLACEMENT OF TRUSTEE. 58
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. 59
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. 59
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. 59
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE 59
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. 59
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE. 59
SECTION 8.03. COVENANT DEFEASANCE. 60
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. 60
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. 61
SECTION 8.06. REPAYMENT TO COMPANY. 61
SECTION 8.07. REINSTATEMENT. 62
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER 62
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES. 62
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES. 63
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. 64
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. 64
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. 64
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. 64
ARTICLE 10. SUBORDINATION 65
SECTION 10.01. AGREEMENT TO SUBORDINATE. 65
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY. 65
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT. 65
SECTION 10.04. ACCELERATION OF SECURITIES. 66
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. 66
SECTION 10.06. NOTICE BY COMPANY 66
SECTION 10.07. SUBROGATION. 66
SECTION 10.08. RELATIVE RIGHTS. 67
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. 67
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. 67
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT. 67
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION. 68
SECTION 10.13. AMENDMENTS. 68
ARTICLE 11. GUARANTEES 68
SECTION 11.01. GUARANTEES. 68
SECTION 11.02. SUBORDINATION OF GUARANTEE. 69
SECTION 11.03. EXECUTION AND DELIVERY OF GUARANTEE. 69
SECTION 11.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. 69
SECTION 11.05. RELEASES OF GUARANTEES. 70
SECTION 11.06. LIMITATION ON GUARANTOR LIABILITY; CONTRIBUTION. 70
ARTICLE 12. MISCELLANEOUS 71
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. 71
SECTION 12.02. NOTICES. 71
SECTION 12.03. COMMUNICATIONS BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES. 72
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. 72
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. 72
SECTION 12.06. RULE BY TRUSTEE AND AGENTS. 72
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS. 73
SECTION 12.08. GOVERNING LAW. 73
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. 73
SECTION 12.10. SUCCESSORS. 73
SECTION 12.11. SEVERABILITY. 73
SECTION 12.12. COUNTERPART ORIGINALS. 73
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC. 73
EXHIBITS
EXHIBIT A1 FORM OF NOTE
EXHIBIT A2 FORM OF TEMPORARY REGULATION S NOTES
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING ACCREDITED INVESTORS
EXHIBIT E FORM OF NOTATION OF SENIOR SUBORDINATED NOTE RELATING
TO GUARANTEE
EXHIBIT F FORM OF SUPPLEMENTAL INDENTURE
Cross-Reference Table*
Trust Indenture Act Section Indenture Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06;12.02
(d) 7.06
314(a) 4.03;12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05, 12.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
N.A. means not applicable.
- ----------------------
* This Cross-Reference Table is not part of the Indenture.
This INDENTURE dated as of August 19, 1999, is among
Blount, Inc., a Delaware corporation ("Blount" or the "Company"),
Blount International, Inc., a Delaware corporation ("Blount
International"), and BI Holdings Corp., a Delaware corporation,
Benjamin F. Shaw Company, a Delaware corporation, BI, L.L.C., a
Delaware limited liability company, Blount Development Corp., a
Delaware corporation, Omark Properties, Inc., an Oregon
corporation, 4520 Corp., Inc., a Delaware corporation, Gear
Products, Inc., an Oklahoma corporation, Dixon Industries, Inc.,
a Kansas corporation, Frederick Manufacturing Corporation, a
Delaware corporation, Federal Cartridge Company, a Minnesota
corporation, Simmons Outdoor Corporation, a Delaware corporation,
Mocenplaza Development Corp., a Delaware corporation and CTR
Manufacturing, Inc., a North Carolina corporation (collectively,
the "Guarantors"), and United States Trust Company of New York, a
bank and trust company organized under the New York Banking Law,
as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 13% Senior Subordinated
Notes due 2009 (the "Initial Notes") and the 13% Senior
Subordinated Notes due 2009 (the "Exchange Notes" and, together
with the Initial Notes and any Additional Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means the global note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with and registered in the name of
the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the
Notes sold in reliance on Rule 144A.
"1998 Indenture" means the Indenture dated as of June
18, 1998 among the Company, Blount International and LaSalle
National Bank, as trustee, pursuant to which the Existing Notes
were originally issued.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary
of such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of such
specified Person; and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Additional Assets" means (i) any property or assets
(other than Capital Stock, Indebtedness or rights to receive
payments over a period greater than 180 days) that are used by or
useful to Blount International or a Restricted Subsidiary of
Blount International in a Permitted Business; or (ii) the Capital
Stock of a Person that either is already at the time a Restricted
Subsidiary of Blount International or becomes a Restricted
Subsidiary of Blount International as a result of the acquisition
of such Capital Stock by Blount International or another
Restricted Subsidiary of Blount International.
"Additional Interest" has the meaning ascribed thereto
in Section 5 of the Registration Rights Agreement.
"Additional Notes" means up to $125,000,000 in
aggregate principal amount of Notes (other than the Initial Notes
or Exchange Notes) issued under this Indenture in accordance with
Sections 2.02 and 4.09 hereof.
"Adjusted Net Assets" of a Guarantor at any date means
the lesser of the amount by which (i) the fair value of the
property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but
excluding liabilities under its Guarantee, of such Guarantor at
such date and (ii) the present fair salable value of the assets
of such Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Guarantor on its
debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Guarantor in
respect of the obligations of such Subsidiary under such
Guarantee), excluding debt in respect of such Guarantee, as they
become absolute and matured.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For purposes of this definition, "control," as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise;
provided that beneficial ownership of 10% or more of the Voting
Stock of such Person shall be deemed to be control. For purposes
of this definition, the terms "controlling," "controlled by" and
"under common control with" shall have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-
registrar.
"Applicable Procedures" means, with respect to any
transfer or exchange of or for beneficial interests in any Global
Note, the rules and procedures of the Depositary, Euroclear and
Cedelbank that apply to such transfer or exchange.
"Asset Disposition" means the sale, lease, conveyance
or other disposition of any assets or rights (including by way of
a sale and leaseback) of Blount International or any of its
Restricted Subsidiaries in one or more related transactions.
"Asset Sale" means (i) the sale, lease, conveyance or
other disposition of any assets or rights (including by way of a
sale and leaseback); provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of
Blount International and its Restricted Subsidiaries taken as a
whole shall be governed by Section 4.15 hereof and/or Section
5.01 hereof and not by Section 4.10 hereof, and (ii) the
issuance of Equity Interests in any of Blount International's
Restricted Subsidiaries or the sale of Equity Interests in any of
such Restricted Subsidiaries. Notwithstanding the foregoing, the
following items shall not be deemed to be Asset Sales: (i) any
single transaction or series of related transactions that (A)
involves assets having a fair market value of less than
$2,000,000 or (B) results in net proceeds to Blount International
and its Restricted Subsidiaries of less than $2,000,000; (ii) a
transfer of assets by Blount International to one of its
Restricted Subsidiaries or by a Restricted Subsidiary of Blount
International to Blount International or to another Restricted
Subsidiary of Blount International; (iii) an issuance of Equity
Interests by a Restricted Subsidiary of Blount International to
Blount International or to another Restricted Subsidiary of
Blount International; (iv) the sale, lease or other disposition
of equipment, inventory, accounts receivable or other assets in
the ordinary course of business; (v) the sale or other
disposition of cash or Cash Equivalents; (vi) the sale,
conveyance or other transfer of accounts receivable and related
assets customarily transferred in an asset securitization
transaction involving accounts receivable to a Receivables
Subsidiary or by a Receivables Subsidiary, in connection with a
Qualified Receivables Transaction; and (vii) foreclosures on
assets; and (viii) a Restricted Payment permitted by or a
Permitted Investment that is not prohibited by Section 4.07
hereof.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present
value of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be
extended. The present value shall be calculated using a discount
rate equal to the rate of interest borne by the Notes, compounded
annually.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such
term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial ownership of any particular
"person" (as that term is used in Section 13(d)(3) of the
Exchange Act), that "person" shall be deemed to have beneficial
ownership of all securities that the "person" has the right to
acquire by conversion or exercise of other securities, whether
the right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition. The terms "Beneficially
Owns" and "Beneficially Owned" shall have a corresponding
meaning.
"Board of Directors" means: (i) with respect to a
corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of the board;
(ii) with respect to a partnership, the board of directors of the
general partner of the partnership; and (iii) with respect to any
other Person, the board or committee of such Person serving a
similar function.
"Board Resolution" means, with respect to any Person, a
copy of a resolution certified by the Secretary or Assistant
Secretary of such Person to have been duly adopted by the Board
of Directors of such Person and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability
in respect of a capital lease that would at such time be required
to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means: (i) in the case of a
corporation, corporate stock; (ii) in the case of an association
or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated)
of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether
general or limited); and (iv) any other interest or participation
that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means: (i) United States dollars;
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having
maturities of not more than one year from the date of
acquisition; (iii) certificates of deposit and eurodollar time
deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits, in each case, with any
lender party to any Credit Facility or with any domestic
commercial bank having capital and surplus in excess of
$500,000,000; (iv) repurchase obligations of any lender party to
any Credit Facility or of any commercial bank satisfying the
requirements of clause (iii) of this definition, having a term of
not more than 90 days with respect to securities issued or fully
guaranteed or insured by the United States government; (v)
commercial paper of a domestic issuer rated at least P-2 by
Moody's or A-2 by S&P, or carrying an equivalent rating by a
nationally recognized rating agency if both of Moody's and S&P
cease publishing ratings of investments; (vi) securities with
maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state,
commonwealth territory, political subdivision, taxing authority
or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (vii) securities with maturities of one
year or less from the date of acquisition backed by standby
letters of credit issued by any lender party to any Credit
Facility or any commercial bank satisfying the requirements of
clause (iii) of this definition; (viii) in the case of Foreign
Subsidiaries operating in Europe, available cash invested in
interest bearing accounts, certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date
of acquisition and overnight bank deposits, in each case, with
any commercial bank having a class of debt securities rated at
least A- by S&P or A-3 by Moody's; (ix) in the case of Foreign
Subsidiaries operating in Brazil, available cash invested in (A)
interest bearing accounts and certificates of deposit with
maturities of one year or less from the date of acquisition and
overnight bank deposits, in each case, with any Brazilian
commercial bank having a class of debt securities rated at least
B+ by S&P or B-1 by Moody's or (B) export notes in U.S. dollars
issued by a Brazilian commercial bank with maturities of 90 days
or less from the date of acquisition; provided that if export
notes are not available, available cash may be invested in
certificates of deposit issued by a Brazilian commercial bank
with maturities of one year or less from the date of acquisition
and denominated in Brazilian reals swapped for U.S. dollars
pursuant to an agreement related to Hedging Obligations to
protect against currency devaluation; provided, further, that the
aggregate principal amount of available cash invested pursuant to
this clause (ix) at any time outstanding shall not exceed
$10,000,000; or (x) money market funds at least 95% of the assets
of which constitute Cash Equivalents of the kinds described in
clauses (i) through (vii) of this definition.
"Cedelbank" means Cedelbank, societe anonyme.
"Change of Control" means the occurrence of any of the
following: (i) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of Blount
International and its Restricted Subsidiaries taken as a whole to
any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) other than the Principal or its Related Parties,
except for a transaction (A) in which the transferee becomes the
obligor in respect of the Notes; and (B) following which the
transferee is a Domestic Subsidiary and a Wholly Owned Subsidiary
of the transferor; (ii) the adoption of a plan relating to the
liquidation or dissolution of Blount International, other than a
plan solely relating to the liquidation or dissolution of the
Company into Blount International; (iii) the consummation of any
transaction (including any merger or consolidation) the result of
which is that any "person" (as defined above), other than the
Principal and its Related Parties, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of
Blount International, measured by voting power rather than number
of shares; (iv) the first day on which a majority of the members
of the Board of Directors of Blount International are not
Continuing Directors; or (v) the consolidation or merger of
Blount International with or into, any Person, or the
consolidation or merger of any Person with or into, Blount
International, pursuant to a transaction in which any of the
outstanding Voting Stock of Blount International or the other
Person is converted into or exchanged for cash, securities or
other property, other than any transaction where the Voting Stock
of Blount International outstanding immediately prior to that
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting at least a majority of the outstanding shares
of the Voting Stock of the surviving or transferee Person
(immediately after giving effect to the issuance). For the
purpose of this definition, any transfer of any equity of an
entity that was formed for the purpose of acquiring Voting Stock
of Blount International will be deemed to be a transfer of equity
interest in Blount International.
"Commission" means the Securities and Exchange
Commission.
"Consolidated Cash Flow" means, with respect to any
specified Person for any period, the Consolidated Net Income of
such Person for such period plus: (i) an amount equal to any
extraordinary loss plus any net loss realized by such Person or
any of its Restricted Subsidiaries in connection with an Asset
Sale (to the extent such losses were deducted in computing such
Person's Consolidated Net Income); plus (ii) provision for taxes
based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision
for taxes was deducted in computing such Person's Consolidated
Net Income; plus (iii) consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether
paid or accrued and without duplication, and whether or not
capitalized (including amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings,
and net of the effect of all payments made or received pursuant
to Hedging Obligations), to the extent that any such expense was
deducted in computing such Person's Consolidated Net Income; plus
(iv) all one-time fees, costs, expenses (including cash
compensation payments), in each case incurred by Blount
International and its Restricted Subsidiaries (A) in connection
with the Recapitalization of Blount International and (B)
incurred in connection with or resulting from any other merger,
consolidation, recapitalization or acquisition occurring after
the Issue Date; plus (v) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any non-cash
expense to the extent that it represents an accrual of or reserve
for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Person's Consolidated
Net Income; minus (vi) non-cash items increasing such
Consolidated Net Income for such period, other than the accrual
of revenue in the ordinary course of business, in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes
based on the income or profits of, and the depreciation and
amortization and other non-cash expenses of, a Subsidiary of
Blount International shall be added to Consolidated Net Income to
compute Consolidated Cash Flow of Blount International only to
the extent that a corresponding amount would be permitted at the
date of determination to be directly or indirectly dividended to
Blount International by such Subsidiary without prior
governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable
to such Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any
specified Person for any period, the aggregate of the Net Income
of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP;
provided that: (i) the Net Income (but not loss) of any Person
that is not the specified Person or a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted
Subsidiary of such Person; (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such
Restricted Subsidiary of such Net Income is not at the date of
determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary
or its stockholders; (iii) the Net Income of any Person acquired
in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded; and (iv) the
cumulative effect of a change in accounting principles shall be
excluded.
Notwithstanding the foregoing, for the purposes of
Section 4.07 hereof only, there shall be excluded from
Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of the
Investments or return of capital to Blount International or a
Restricted Subsidiary of Blount International to the extent such
repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under such
Section 4.07 pursuant to clause (c)(iii) thereof.
"Continuing Director" means, as of any date of
determination, any member of the Board of Directors of the
Company or Blount International, as applicable, who (i) was a
member of such Board of Directors on the Issue Date hereof; or
(ii) was nominated for election or elected to such Board of
Directors of the Company or Blount International, as applicable,
with the approval of a majority of the Continuing Directors who
were members of such Board at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be
located at 114 West 47th Street, 25th Floor, Mail Stop HQ 25, New
York, New York 10036-1532, or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities
(including the New Credit Facilities) or commercial paper
facilities, in each case with banks or other institutional
lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables
to such lenders or to special entities formed to borrow from such
lenders against such receivables) or letters of credit, in each
case as amended, restated, modified, supplemented, renewed,
refunded, refinanced, restructured, replaced, repaid or extended
in whole or in part from time to time.
"Default" means any event that is, or with the passage
of time or the giving of notice or both would be, an Event of
Default.
"Definitive Note" means a certificated Note registered
in the name of the Holder thereof and issued in accordance with
Article 2 hereof, substantially in the form of Exhibit A1 hereto,
except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable
or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depositary with respect
to the Notes, until a successor shall have been appointed and
become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include
such successor.
"Designated Noncash Consideration" means the fair
market value of noncash consideration received by Blount
International or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth
the basis of such valuation, less the amount of cash or Cash
Equivalents received in connection with a sale of the Designated
Noncash Consideration.
"Designated Senior Debt" means (i) any Indebtedness
under the New Credit Facilities and (ii) any other Senior Debt
permitted under this Indenture the principal amount of which is
$25,000,000 or more and that has been designated by the Company
as a "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by
its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at the
option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the
option of the Holder thereof, in whole or in part, on or prior to
the date that is 91 days after the date on which the Notes
mature. Notwithstanding the preceding sentence, any Capital Stock
that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company or Blount
International, as applicable, to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall
not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company or Blount International, as
applicable, may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof.
"Distribution Compliance Period" means the 40-day
distribution compliance period as defined in Regulation S.
"Domestic Subsidiary" means any Subsidiary of Blount
International that was formed under the laws of the United States
or any state thereof or the District of Columbia.
"Equity Interests" means Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
"Equity Offering" means any public or private offering
of Capital Stock (excluding Disqualified Stock) of the Company or
Blount International, other than any private sales to an
Affiliate of the Company or Blount International.
"Euroclear" means Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Notes" means the Notes, together with the
related Guarantees, issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of Blount
and its Subsidiaries (other than Indebtedness under the New
Credit Facilities) in existence on the Issue Date, until such
amounts are repaid.
"Existing Notes" means the $150,000,000 original
aggregate principal amount of 7% Senior Notes due 2005 of Blount
issued under the 1998 Indenture.
"Fixed Charges" means, with respect to any specified
Person or any of its Restricted Subsidiaries for any period, the
sum, without duplication, of (i) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such
period, when first paid or accrued and without duplication
(including amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net of
the effect of all payments made or received pursuant to Hedging
Obligations); plus (ii) the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such
period; plus (iii) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries (whether or not such
Guarantee or Lien is called upon); plus (iv) the product of (A)
all dividends, whether paid or accrued, whether or not in cash,
on any series of Preferred Stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests
payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary
of the Company, times (B) a fraction, the numerator of which is
one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any
specified Person and its Restricted Subsidiaries for any period,
the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of
such Person and its Restricted Subsidiaries for that period;
provided, however, that: (i) if (x) Blount International or any
of its Restricted Subsidiaries has issued, assumed, guaranteed,
incurred or otherwise becomes directly or indirectly liable,
contingently or otherwise, for ("incurred") any Indebtedness, (y)
Blount International or the Company has issued any Disqualified
Stock, or (z) any of their respective Subsidiaries has issued any
Preferred Stock, in each case, since the beginning of such period
that remains outstanding, or if the transaction giving rise to
the need to calculate the Fixed Charge Coverage Ratio is an
incurrence of Indebtedness or an issuance of Disqualified Stock
or Preferred Stock, or any combination of the above, Consolidated
Cash Flow and Fixed Charges for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness,
Disqualified Stock or Preferred Stock as if such Indebtedness,
Disqualified Stock or Preferred Stock had been incurred or issued
on the first day of such period and the discharge or redemption
of any other Indebtedness, Disqualified Stock or Preferred Stock
repaid, repurchased, redeemed, defeased or otherwise discharged
with the proceeds of that new Indebtedness, Disqualified Stock or
Preferred Stock as if such discharge or redemption had occurred
on the first day of such period; (ii) if Blount International or
any of its Restricted Subsidiaries has repaid, repurchased,
redeemed, defeased or otherwise discharged any Indebtedness,
Disqualified Stock or Preferred Stock since the beginning of such
period or if any Indebtedness, Disqualified Stock or Preferred
Stock is to be repaid, repurchased, redeemed, defeased or
otherwise discharged (in each case other than Indebtedness
incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been
replaced) on the date of the transaction giving rise to the need
to calculate the Fixed Charge Coverage Ratio, Consolidated Cash
Flow and Fixed Charges for such period shall be calculated on a
pro forma basis as if such discharge or redemption had occurred
on the first day of such period and as if Blount International or
such Restricted Subsidiary of Blount International has not earned
the interest income actually earned during such period in respect
of cash or Cash Equivalents used to repay, repurchase, redeem,
defease or otherwise discharge such Indebtedness, Disqualified
Stock or Preferred Stock; (iii) if since the beginning of such
period Blount International or any Restricted Subsidiary of
Blount International shall have made any Asset Disposition, the
Consolidated Cash Flow for such period shall be reduced by an
amount equal to the Consolidated Cash Flow (if positive) directly
attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to
the Consolidated Cash Flow (if negative), directly attributable
thereto for such period and Fixed Charges for such period shall
be reduced by an amount equal to the Fixed Charges directly
attributable to any Indebtedness, Disqualified Stock or Preferred
Stock of Blount International or any Restricted Subsidiary of
Blount International repaid, repurchased, redeemed, defeased or
otherwise discharged with respect to Blount International and its
continuing Restricted Subsidiaries in connection with the Asset
Disposition for such period (or, if the Capital Stock of any
Restricted Subsidiary of Blount International is sold, the Fixed
Charges for such period directly attributable to the Indebtedness
of such Restricted Subsidiary of Blount International to the
extent Blount International and its continuing Restricted
Subsidiaries are no longer liable for the Indebtedness after that
sale); (iv) if since the beginning of such period Blount
International or any Restricted Subsidiary of Blount
International (by merger, consolidation or otherwise) shall have
made an Investment in any Restricted Subsidiary of Blount
International (or such Person which becomes a Restricted
Subsidiary of Blount International) or an acquisition of assets,
including any acquisition of assets occurring in connection with
a transaction requiring a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a
business, Consolidated Cash Flow and Fixed Charges for such
period shall be calculated after giving pro forma effect thereto
(including the incurrence of any Indebtedness or the issuance of
any Disqualified Stock or Preferred Stock) as if such Investment
or acquisition occurred on the first day of such period; and (v)
if since the beginning of such period such Person (that
subsequently became a Restricted Subsidiary of Blount
International, or was merged or consolidated with or into Blount
International or any Restricted Subsidiary of Blount
International, since the beginning of such period) shall have
made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause
(iii) or (iv) above if made by Blount International or a
Restricted Subsidiary of Blount International, during such
period, Consolidated Cash Flow and Fixed Charges for such period
shall be calculated after giving pro forma effect thereto as if
such Asset Disposition, Investment or acquisition occurred on the
first day of such period.
For purposes of this definition, whenever pro forma
effect is to be given to an acquisition of assets, including
through merger, consolidated or otherwise, the amount of income
or earnings relating thereto and the amount of Fixed Charges
associated with any Indebtedness incurred or Disqualified Stock
or Preferred Stock issued in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible
financial or accounting Officer of Blount International in
accordance with Regulation S-X of the Securities Act, but without
giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income. If any Indebtedness,
Disqualified Stock or Preferred Stock bears a floating rate of
interest or dividends and is being given pro forma effect, such
interest or dividends shall be calculated as if the rate in
effect on the date of determination had been the applicable rate
for the entire period (taking into account any agreement related
to Hedging Obligations applicable to the Indebtedness,
Disqualified Stock or Preferred Stock if the agreement related to
Hedging Obligations has a remaining term in excess of 12 months).
"Foreign Subsidiary" means a Restricted Subsidiary that
is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the Issue Date.
"Global Notes" means, individually and collectively,
each of the Restricted Global Notes and the Unrestricted Global
Notes, substantially in the form of Exhibits A1 or A2 hereto
issued in accordance with Article 2 hereof.
"Global Note Legend" means the legend set forth in
Section 2.06(g)(ii) hereof to be placed on all Global Notes
issued under this Indenture.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and
credit of the United States is pledged.
"guarantee" means a guarantee, other than by
endorsement of negotiable instruments for collection in the
ordinary course of business, direct or indirect, in any manner
including by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all or
any part of any Indebtedness.
"Guarantee" means the Guarantee of the Notes by each of
the Guarantors pursuant to Article 11 hereof and in the form of
Notation on Senior Subordinated Note Relating to Guarantee
attached as Exhibit E hereto and any additional Guarantee of the
Notes to be executed by any Restricted Subsidiary of Blount
International pursuant to Section 4.13 hereof.
"Guarantors" means each of (i) Blount International;
(ii) BI Holdings Corp., a Delaware corporation; Benjamin F. Shaw
Company, a Delaware corporation; BI, L.L.C., a Delaware limited
liability company; Blount Development Corp., a Delaware
corporation; Omark Properties, Inc., an Oregon corporation; 4520
Corp., Inc., a Delaware corporation; Gear Products, Inc., an
Oklahoma corporation; Dixon Industries, Inc., a Kansas
corporation; Frederick Manufacturing Corporation, a Delaware
corporation; Federal Cartridge Company, a Minnesota corporation;
Simmons Outdoor Corporation, a Delaware corporation; Mocenplaza
Development Corp., a Delaware corporation; and CTR Manufacturing,
Inc., a North Carolina corporation; and (iii) any other
Subsidiary of Blount International that executes a Guarantee in
accordance with the provisions of this Indenture; and their
respective successors.
"Hedging Obligations" means, with respect to any
specified Person, the obligations of such Person under (i)
interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; (ii) foreign exchange contracts
and currency swap agreements; and (iii) other agreements or
arrangements entered into in the ordinary course of business and
designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Holder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any specified
Person, any indebtedness of such Person, whether or not
contingent, (i) in respect of borrowed money; (ii) evidenced by
bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof); (iii) in
respect of banker's acceptances; (iv) representing Capital Lease
Obligations; (v) in respect of all obligations of such Person
issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations
of such Person under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of
business); or (vi) representing any Hedging Obligations, if and
to the extent any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP.
In addition, the term "Indebtedness" includes all Indebtedness of
others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so
secured. The term "Indebtedness" also includes, to the extent not
otherwise included, the guarantee by such Person of any
Indebtedness of any other Person, but excluding from the
definition of "Indebtedness," any of the foregoing that
constitutes (A) an accrued expense, (B) trade payables and (C)
Obligations in respect of workers' compensation, pensions and
retiree health care, in each case to the extent not overdue for
more than 90 days. Notwithstanding the foregoing, the term
"Indebtedness" will also exclude customary earn-out arrangements
entered into in connection with the purchase by Blount
International or any Restricted Subsidiary of Blount
International of any business pursuant to which the seller may
become entitled to additional consideration depending on the
performance or such business; provided, however, that at the time
the arrangement is entered into the amount of that consideration
is contingent upon future events (other than the lapse of time)
and, to the extent that consideration thereafter becomes a fixed
amount payable by Blount International or a Restricted Subsidiary
of Blount International, the amount is paid within 30 days
thereafter.
The amount of any Indebtedness outstanding as of any
date shall be (i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and (ii) the
principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a
beneficial interest in a Global Note through a Participant.
"Initial Notes" means $325,000,000 in aggregate
principal amount of Notes issued under this Indenture on the date
hereof.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans (including
guarantees or other obligations), advances or capital
contributions (excluding (x) commission, travel and similar
advances to officers and employees made in the ordinary course of
business and (y) advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance
sheet of the lender) or other similar extensions of credit,
purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with
all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If Blount
International or any Restricted Subsidiary of Blount
International sells or otherwise disposes of any Equity Interests
of any direct or indirect Restricted Subsidiary of Blount
International such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of
Blount International, Blount International shall be deemed to
have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity
Interests of such Restricted Subsidiary not sold or disposed of
in an amount determined as provided in the penultimate paragraph
of Section 4.07 hereof.
"Issue Date" means the date on which the notes are
originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in The City of New York or at a place
of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"Lehman Accredited Investor" means each of the officers
or directors of Lehman Brothers Inc. or its affiliates that is an
"accredited investor" as defined in Rule 501(a)(5) or (6) under
the Securities Act and his or her spouse, if applicable, that
will take delivery of a Note in the form of a Restricted
Definitive Note..
"Lehman Brothers Merchant Banking Partners" means
Lehman Merchant Banking Partners II L.P. and its affiliated co-
investors.
"Letter of Transmittal" means the letter of transmittal
to be prepared by the Company and sent to all Holders of the
Initial Notes for use by such Holders in connection with the
Exchange Offer.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
"Marketable Securities" means, with respect to any
Asset Sale, any readily marketable equity securities that are
(i) traded on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market; and (ii) issued by a
corporation having a total equity market capitalization of not
less than $250,000,000; provided that the excess of: (A) the
aggregate amount of securities of any one such corporation held
by Blount International and any of its Restricted Subsidiaries
over (B) ten times the average daily trading volume of the
securities during the 20 immediately preceding trading days will
be deemed not to be Marketable Securities; in each case as
determined on the date of the contract relating to such Asset
Sale.
"Merger Agreement" means the Agreement and Plan of
Merger and Recapitalization dated as of April 18, 1999 between
Blount International and Red Dog Acquisition whereby Blount
International will merge with Red Dog Acquisition at the Issue
Date with Blount International surviving the merger and retaining
its name.
"Moody's" means Moody's Investors Service, Inc. or any
successor to its rating agency business.
"Net Income" means, with respect to any specified
Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of
Preferred Stock dividends, excluding, however, (i) any gain (and
loss), together with any related provision for taxes on such gain
(loss), realized in connection with: (A) any Asset Sale
(including dispositions pursuant to sale and leaseback
transactions); or (B) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and (ii) any extraordinary gain (and
loss), together with any related provision for taxes on such
extraordinary gain (and loss).
"Net Proceeds" means the aggregate cash proceeds
received by Blount International or any of its Restricted
Subsidiaries (i) in respect of any issuance or sale of any
Capital Stock and (ii) in respect of any Asset Sale (including in
each case any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any
securities received as consideration, but only as and when
received, but excluding any other consideration received in the
form of an assumption by the acquiring Person of Indebtedness or
other obligations relating to such properties or assets or
received in any other noncash form), in each case net of: (A)
all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued and as
a liability under GAAP, as a consequence of such Asset Sale,
after taking into account any available tax credits or deductions
and any tax sharing arrangements; (B) all distributions and other
payments required to be made to minority interest holders in
Restricted Subsidiaries as a result of such Asset Sale; (C) all
direct costs, including all legal, accounting and investment
banking fees, and sales commissions, and any relocation expenses
incurred as a result; and (D) amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP.
"New Credit Facilities" means the credit agreement,
dated as of the Issue Date, by and among the Company as borrower,
Blount International, Lehman Brothers Inc., as advisor, lead
arranger and book manager, Lehman Commercial Paper Inc. as
syndication agent, Bank of America, N.A. as administrative agent
and the several banks and other financial institutions or
entities from time to time parties thereto, as syndication agent,
providing for up to $400,000,000 of term loan borrowings and up
to $100,000,000 of revolving credit borrowings, including any
related notes, collateral documents, letters of credit and
related documentation, and guarantees and any appendices,
exhibits, or schedules to any of the foregoing (as the same may
be in effect from time to time), in each case, as any or all of
such agreements may be amended, restated, modified or
supplemented from time to time, or renewed, refunded, refinanced,
restructured, replaced, repaid or extended from time to time
(whether with the original agents and lenders or other agents and
lenders or otherwise, and whether provided under the original
credit agreement or one or more other credit agreements or
otherwise).
"Non-Recourse Debt" means Indebtedness: (i) as to
which neither Blount International nor any of its Restricted
Subsidiaries (A) provides credit support of any kind (including
any undertaking, agreement or instrument that would constitute
Indebtedness) other than a pledge of the Equity Interests of any
Unrestricted Subsidiaries, (B) is directly or indirectly liable
as a guarantor or otherwise, or (C) constitutes the lender; (ii)
no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time
or both any holder of any other Indebtedness (other than the
Notes) of Blount International or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) the incurrence of which will not
result in any recourse to the stock or assets of Blount
International or any of its Restricted Subsidiaries other than to
Equity Interests of Unrestricted Subsidiaries pledged for the
benefit of lenders to those Unrestricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S.
Person.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, premium, if any,
interest (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization, whether or not
a claim for post-filing interest is allowed in such proceeding),
penalties, fees, indemnifications, guarantees, reimbursements,
damages and other liabilities payable under the documentation
governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum of
the Company dated August 16, 1999 with respect to the Notes.
"Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on
behalf of Blount International or the Company by two Officers of
Blount International or the Company, as the case may be, one of
whom must be the principal executive officer, the principal
financial officer or such other officer authorized by Blount
International or the Company, as the case may be, that meets the
requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal
counsel who is reasonably acceptable to the Trustee, that meets
the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to Blount International or the Company,
any Subsidiary of Blount International or the Company or the
Trustee.
"Participant" means, with respect to DTC, Euroclear or
Cedelbank, a Person who has an account with DTC, Euroclear or
Cedelbank, respectively (and, with respect to DTC, shall include
Euroclear and Cedelbank).
"Permitted Business" means the businesses conducted (or
proposed to be conducted, including activities referred to as
being contemplated by Blount International, as described or
referred to in this Offering Memorandum) by Blount International
and its Restricted Subsidiaries as of the Issue Date and any and
all other businesses that in the good faith judgment of the Board
of Directors of Blount International are reasonably related,
ancillary or complementary businesses, including (i) reasonably
related extensions or expansions thereof and (ii) businesses that
employ reasonably comparable manufacturing processes.
"Permitted Investments" means: (i) any Investment in
Blount International or in a Restricted Subsidiary of Blount
International; (ii) any Investment in Cash Equivalents; (iii) any
Investment by Blount International or any Restricted Subsidiary
of Blount International in a Person engaged in a Permitted
Business, if as a result of such Investment: (A) such Person
becomes a Restricted Subsidiary of Blount International; or (B)
such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, Blount International or a Restricted Subsidiary
of Blount International; (iv) any Investment made as a result of
the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with Section 4.10 hereof or
the disposition of assets not constituting an Asset Sale; (v)
guarantees (including Guarantees) of Indebtedness permitted under
Section 4.09 hereof; (vi) any Investment acquired by Blount
International or any of its Restricted Subsidiaries (A) in
exchange for any other Investment or accounts receivable held by
Blount International or any of its Restricted Subsidiaries in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of the
transfer of title with respect to any secured Investment in
default as a result of a foreclosure by Blount International or
any of its Restricted Subsidiaries with respect to such secured
Investment; (vii) any Investment by Blount International or a
Restricted Subsidiary of Blount International in connection with
deferred compensation trust arrangements existing, and as in
effect, on the Issue Date and as amended thereafter; provided,
however, that any future amendment to any such existing
arrangements will only be permitted pursuant to this clause (vii)
to the extent that the terms of the amendment are not otherwise
disadvantageous to the Holders of Notes in any material respect;
(viii) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of
Blount International; (ix) Hedging Obligations permitted to be
incurred under Section 4.09 hereof; (x) loans and advances to
employees and officers of Blount International and its Restricted
Subsidiaries in the ordinary course of business for bona fide
business purposes not to exceed an aggregate of $2,500,000 at any
one time outstanding; (xi) any Investment by Blount International
or a Restricted Subsidiary of Blount International in a
Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person, in each case, in connection with
a Qualified Receivables Transaction, provided, that the
Investment in any Person is in the form of a Purchase Money Note,
an equity interest or an interest in accounts receivable
generated by Blount International or a Restricted Subsidiary of
Blount International and transferred to any Person in connection
with a Qualified Receivables Transaction or any Person owning
those accounts receivable; (xii) any Investment in a Permitted
Business (whether or not an Investment in an Unrestricted
Subsidiary) having an aggregate fair market value that, when
taken together with all other outstanding Investments made
pursuant to this clause (xii), does not exceed in aggregate
amount 10% of Total Assets at the time of this Investment (with
the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in
value); and (xiii) any Investment (whether or not an Investment
in an Unrestricted Subsidiary) having an aggregate fair market
value that, when taken together with all other outstanding
Investments made pursuant to this clause (xiii), does not exceed
in aggregate amount $25,000,000 at the time of this Investment
(with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in
value).
"Permitted Junior Securities" means: (i) Equity
Interests in the Company or any Guarantor; or (ii) debt
securities that are subordinated to all Senior Debt and any debt
securities issued in exchange for Senior Debt to substantially
the same extent as, or to a greater extent than, the Notes and
the Guarantees are subordinated to Senior Debt under this
Indenture.
"Permitted Liens" means: (i) Liens on assets of
Blount International, the Company and any Restricted Subsidiary
of Blount International securing Senior Debt, including under the
New Credit Facilities and the 1998 Indenture, that was permitted
by the terms of this Indenture to be incurred; (ii) Liens in
favor of the Company or the Guarantors or, in the case of a
Foreign Subsidiary, Liens securing Indebtedness or other
obligations of such Foreign Subsidiary owing to Blount
International, the Company or any Wholly Owned Restricted
Subsidiary thereof; (iii) Liens on property or shares of Capital
Stock of a Person existing at the time such Person is merged with
or into or consolidated with Blount International or any
Restricted Subsidiary of Blount International; provided that such
Liens were in existence prior to the contemplation of such merger
or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with Blount
International or such Restricted Subsidiary (other than assets
and property affixed or appurtenant thereto); (iv) Liens on
property existing at the time of acquisition thereof by Blount
International or any Restricted Subsidiary of Blount
International, provided that such Liens were in existence prior
to the contemplation of such acquisition; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds,
performance bonds or letters of credit permitted by clause (vi)
of the second paragraph of Section 4.09 hereof, or other
obligations of a like nature incurred in the ordinary course of
business; (vi) pledges or deposits by Blount International or any
Restricted Subsidiary of Blount International under worker's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness)
or leases to which Blount International or such Restricted
Subsidiary is a party, or deposits to secure public or statutory
obligations of Blount International or such Restricted Subsidiary
or deposits of cash or United States government bonds to secure
surety or appeal bonds to which Blount International or such
Restricted Subsidiary is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business; (vii)
Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of
Section 4.09 hereof, covering only the assets acquired with such
Indebtedness; (viii) Liens existing on the Issue Date; (ix) Liens
for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have
been made therefor; (x) Liens on the assets of Unrestricted
Subsidiaries, or on the Equity Interests of Unrestricted
Subsidiaries, that secure Non-Recourse Debt of Unrestricted
Subsidiaries not otherwise prohibited by this Indenture; (xi)
Liens on accounts receivable and related assets of a Receivables
Subsidiary arising in connection with a Qualified Receivables
Transaction; (xii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens, in each case for sums not
yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards
against Blount International or any Restricted Subsidiary of
Blount International with respect to which Blount International
or such Restricted Subsidiary shall then be proceeding with an
appeal or other proceedings for review and Liens arising solely
by virtue of any statutory or common law provision relating to
banker's Liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with a creditor
depository institution; provided, however, that (A) such deposit
account is not a dedicated cash collateral account and is not
subject to restrictions against access by Blount International or
such Restricted Subsidiary in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such
deposit account is not intended by Blount International or such
Restricted Subsidiary to provide collateral to the depository
institution; (xiii) judgment Liens not giving rise to an Event of
Default so long as any appropriate legal proceeding that may have
been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such
legal proceeding may be initiated shall not have expired; (xiv)
easements, rights-of-way, minor survey exceptions, zoning and
similar restrictions and other similar encumbrances or title
defects incurred or imposed, or Liens incidental to the conduct
of the business of Blount International or its Subsidiaries or to
the ownership of its properties, as applicable, which, in the
aggregate, are not substantial in amount, and which do not in any
case materially detract from the value of the property subject
thereto (as such property is used by Blount International or its
Subsidiaries) or interfere with the ordinary conduct of the
business of Blount International or its Subsidiaries; provided,
however, that any such Liens are not incurred in connection with
any borrowing of money or any commitment to loan any money or to
extend any credit; (xv) Liens securing Hedging Obligations;
provided that such Liens are only secured by property or assets
that secure the Indebtedness related to the Hedging Obligation or
the property securing Indebtedness under clause (i) of the second
paragraph of Section 4.09 hereof; (xvi) Liens to secure
Indebtedness permitted by clause (xv) of the second paragraph of
Section 4.09 hereof; (xvii) Liens to secure any refinancings,
extensions, renewals, refunds, repayments, prepayments,
redemptions, defeasance, retirements, exchanges or replacements
(collectively "refinancings") (or successive refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (iii), (iv), (vii) or
(viii); provided, however, that: (A) such new Lien shall be
limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or
distributions thereof); and (B) the Indebtedness secured by such
Lien at such time is not increased to any amount greater than the
sum of (x) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clause
(iii), (iv), (vii) or (viii) above at the time the original Lien
became a Permitted Lien and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
Notwithstanding the foregoing, "Permitted Liens" will
not include any Lien described in clause (iii), (iv) or (vii)
above to the extent such Lien applies to any Additional Assets
acquired directly or indirectly from Net Proceeds pursuant to
Section 4.10 hereof. For purposes of this definition, the term
"Indebtedness" shall be deemed to include interest on such
Indebtedness.
"Permitted Refinancing Indebtedness" means any
Indebtedness of Blount International or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund
other Indebtedness of Blount International or any of its
Restricted Subsidiaries (other than intercompany Indebtedness);
provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable),
of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest thereon and the
amount of all reasonable expenses and premiums incurred in
connection therewith); (ii) such Permitted Refinancing
Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the
final maturity date of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, and is
subordinated in right of payment to the Notes on terms at least
as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is incurred either by Blount International
or by the Restricted Subsidiary of Blount International who is
the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization,
association, joint-stock company, trust, joint venture,
government, or any agency or political subdivision thereof or any
other entity.
"Preferred Stock" means any Capital Stock of a Person,
however designated, which entitles the holder thereof to a
preference with respect to dividends, distributions or
liquidation proceeds of such Person over the holders of the other
Capital Stock issued by such Person.
"Private Placement Legend" means the legend set forth
in Section 2.06(g)(i) hereof to be placed on all Notes issued
under this Indenture except as otherwise permitted by the
provisions of this Indenture.
"Principal" means Lehman Brothers Merchant Banking
Partners and any of its Affiliates.
"Purchase Agreement" means the Purchase Agreement dated
as of August 16, 1999 among the Company, the Guarantors and
Lehman Brothers Inc. as initial purchaser.
"Purchase Money Note" means a promissory note
evidencing a line of credit, or evidencing other Indebtedness
owed to Blount International or any Restricted Subsidiary of
Blount International in connection with a Qualified Receivables
Transaction, which note shall be repaid from cash available to
the maker of such note, other than amounts required to be
established as reserves pursuant to agreement, amounts paid to
investors in respect of interest, principal and other amounts
owing to such investors and amounts paid in connection with the
purchase of newly generated accounts receivable.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Qualified Receivables Transaction" means any
transaction or series of transactions that may be entered into by
Blount International or any Restricted Subsidiary of Blount
International pursuant to which Blount International or any
Restricted Subsidiary of Blount International may sell, convey or
otherwise transfer to (A) a Receivables Subsidiary (in the case
of a transfer by Blount International or any Restricted
Subsidiary of Blount International) and (B) any other Person (in
the case of a transfer by a Receivables Subsidiary), or may grant
a security interest in, any accounts receivable (whether now
existing or arising in the future) of Blount International or
any Restricted Subsidiary of Blount International and any asset
related thereto including all collateral securing the accounts
receivable, all contracts and all guarantees or other obligations
in respect of the accounts receivable, proceeds of the accounts
receivable and other assets which are customarily transferred, or
in respect of which security interests are customarily granted,
in connection with asset securitization transactions involving
accounts receivable.
"Recapitalization" refers to a series of
recapitalization transactions which includes the issuance of the
Initial Notes hereunder, together with an equity contribution of
approximately $417,500,000 from Lehman Brothers Merchant Banking,
its affiliated co-investors and certain members of Blount
International's senior management and borrowings under the New
Credit Facilities, which will be used to fund the acquisition by
Lehman Brothers Merchant Banking, its affiliated co-investors and
certain members of Blount International's senior management at
the Issue Date of approximately 90.4% of Blount International
pursuant to the Merger Agreement and to pay transaction fees and
expenses incurred in connection therewith.
"Receivables Subsidiary" means a Wholly Owned
Subsidiary of Blount International (other than the Company or a
Guarantor) which engages in no activities other than in
connection with the financing of accounts receivables and which
is designated by the Board of Directors of Blount International
(as provided below) as a Receivables Subsidiary: (i) no portion
of the Indebtedness or any other Obligations (contingent or
otherwise) of which (A) is guaranteed by Blount International or
any other Restricted Subsidiary of Blount International
(excluding guarantees of Obligations (other than the principal
of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (B) is recourse to or obligates
Blount International or any other Restricted Subsidiary of Blount
International in any way other than pursuant to Standard
Securitization Undertakings, or (C) subjects any property or
asset of Blount International or any other Restricted Subsidiary
of Blount International, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings; (ii) with which neither
Blount International nor any other Restricted Subsidiary of
Blount International has any material contract, agreement,
arrangement or understanding (except in connection with a
Purchase Money Note or Qualified Receivables Transaction) other
than on terms no less favorable to Blount International or the
other Restricted Subsidiary of Blount International than those
that might be obtained at the time from Persons that are not
Affiliates of Blount International, other than fees payable in
the ordinary course of business in connection with servicing
accounts receivable; and (iii) as to which neither Blount
International nor any other Restricted Subsidiary of Blount
International has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve
certain levels of operating results.
Any designation of a Subsidiary of Blount International
as a Receivables Subsidiary shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution
of the Board of Directors of Blount International giving effect
to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was
permitted by this Indenture.
"Red Dog Acquisition" means Red Dog Acquisition, Corp.
a Delaware corporation and a Wholly Owned Subsidiary of Lehman
Brothers Merchant Banking Partners.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated the Issue Date among the
Company, the Guarantors and Lehman Brothers Inc., as the initial
purchaser.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S
Temporary Global Note or Regulation S Permanent Global Note, as
appropriate.
"Regulation S Permanent Global Note" means a permanent
global Note in the form of Exhibit A1 hereto bearing the Global
Note Legend and deposited with and registered in the name of the
Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary
global Note in the form of Exhibit A2 hereto bearing the Private
Placement Legend and the Global Note Legend and deposited with
and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Regulation S.
"Related Party" means (i) any controlling stockholder,
80% (or more) owned Subsidiary, or immediate family member (in
the case of an individual) of any Principal or (ii) any trust,
corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of the
Principal and/or such other Persons referred to in the
immediately preceding clause (i).
"Representative" means the Trustee or other trustee,
agent or representative for any Senior Debt.
"Responsible Officer" when used with respect to the
Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Definitive Note" means a Definitive Note
bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note
and the Regulation S Temporary Global Note, each of which shall
bear the Private Placement Legend.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Subsidiary" means, with respect to any
Person, any Subsidiary of such Person that is not an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 903" means Rule 903 under the Securities Act.
"Rule 904" means Rule 904 under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor to
its rating agency business.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Debt" means: (i) all Indebtedness of Blount
International or any of its Restricted Subsidiaries outstanding
under Credit Facilities, including under the New Credit
Facilities, and all Hedging Obligations with respect thereto;
(ii) any other Indebtedness, including under the 1998 Indenture,
of the Company, Blount International or any of their respective
Restricted Subsidiaries permitted to be incurred under the terms
of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes or
any Guarantee; and (iii) all Obligations with respect to the
items listed in the preceding clauses (i) and (ii).
Notwithstanding anything to the contrary in the
preceding, Senior Debt will not include: (i) any liability for
Federal, state, local or other taxes owed or owing by the Company
or Blount International; (ii) any Indebtedness of the Company or
Blount International to any of its Subsidiaries or other
Affiliates; (iii) any trade payables; or (iv) the portion of any
Indebtedness that is incurred in violation of this Indenture.
"Shelf Registration Statement" means the Shelf
Registration Statement as defined in the Registration Rights
Agreement.
"Significant Subsidiary" means any Restricted
Subsidiary that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to
the Act, as such Regulation is in effect on the date hereof;
provided that all Unrestricted Subsidiaries of Blount
International shall be excluded from all calculations under Rule
1-02(w) of Regulation S-X.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered
into by Blount International or any Restricted Subsidiary of
Blount International which are reasonably customary in an
accounts receivable transaction.
"Stated Maturity" means, with respect to any
installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase such interest or
principal prior to the date originally scheduled for the payment
thereof.
"Subsidiary" means, with respect to any specified
Person: (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other
Subsidiaries of such Person (or a combination thereof); and (ii)
any partnership (A) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such
Person or (B) the only general partners of which are such Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) as in effect on the date on which this Indenture
is qualified under the TIA.
"Total Assets" means, as of any date, Blount
International's total consolidated assets as of that date, as
determined in accordance with GAAP. To the extent that
information is not available as to the amount of total
consolidated assets as of a specific date, Blount International
may utilize the most recent available information for purposes of
calculating Total Assets.
"Transaction Documents" means the documents related to:
(i) the Recapitalization of Blount International on the Issue
Date and the related equity contributions; (ii) the Indebtedness
under the New Credit Facilities; and (iii) this Indenture and the
Notes.
"Transfer Restricted Securities" means securities that
bear or are required to bear the Private Placement Legend set
forth in Section 2.06(g)(i) hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Global Note" means one or more global
Notes, in the form of Exhibit A1 attached hereto, that do not and
are not required to bear the Private Placement Legend and are
deposited with and registered in the name of the Depositary or
its nominee.
"Unrestricted Definitive Note" means one or more
Definitive Notes that do not and are not required to bear the
Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of
Blount International (other than the Company) that is designated
by the Board of Directors of Blount International as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only
to the extent that such Subsidiary: (i) has no Indebtedness
other than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with Blount International
or any Restricted Subsidiary of Blount International (other than
in connection with the pledge of the Equity Interests of such
Unrestricted Subsidiary) unless the terms of such agreement,
contract, arrangement or understanding are no less favorable to
Blount International or its Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates
of Blount International; (iii) is a Person with respect to which
neither Blount International nor any of its Restricted
Subsidiaries has any direct or indirect obligation (A) to
subscribe for additional Equity Interests or (B) to maintain or
preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; (iv)
has not guaranteed or otherwise directly or indirectly provided
credit support for such Indebtedness of Blount International or
any of its Restricted Subsidiaries; and (v) has at least one
director on its Board of Directors that is not a director or
executive officer of Blount International or any of its
Restricted Subsidiaries and has at least one executive officer
that is not a director or executive officer of Blount
International or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of Blount International
as an Unrestricted Subsidiary shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the Board
Resolution of the Board of Directors of Blount International
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of Blount
International as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09
hereof, Blount International shall be in default of such
covenant. The Board of Directors of Blount International may at
any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of Blount International; provided that such
designation shall be deemed to be an incurrence of Indebtedness
by a Restricted Subsidiary of Blount International of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of
such four-quarter reference period; and (ii) no Default would be
continuing following such designation.
"U.S. Person" means a U.S. person as defined in Rule
902(o) under the Securities Act.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote
in the election of the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness at any date, the number of years obtained by
dividing: (i) the sum of the products obtained by multiplying
(A) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by (B)
the number of years (calculated to the nearest one-twelfth) that
will elapse between such date and the making of such payment; by
(ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified
Person means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares or shares or interests
required to be held by foreign nationals, in each case, to the
extent mandated by applicable law) shall at the time be owned by
such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a
Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors'
qualifying shares or shares or interests required to be held by
foreign nationals, in each case, to the extent mandated by
applicable law) shall at the time be owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Funding Guarantor" 11.06
"Global Note Legend" 2.06
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Purchase Date" 3.09
"Permitted Debt" 4.09
"Payment Default" 6.01(f)
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" on the Notes means the Company and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by Commission rule under the TIA have the meanings so
assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor
sections or rules adopted by the Commission from time to time;
and
(7) "including" means including without limitation.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibits
A1 or A2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture, and the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes. Notes issued in global form shall
be substantially in the form of Exhibits A1 or A2 attached hereto
(including the Global Note Legend and the "Schedule of Exchanges
in the Global Note" attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A1 attached
hereto (but without the Global Note Legend and without the
"Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the
Trustee or the Note Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and
sold in reliance on Regulation S shall be issued initially in the
form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, at the Corporate Trust Office of the
Trustee, as custodian for the Depositary, and registered in the
name of the nominee of the Depositary for credit to the accounts
of designated agents holding on behalf of Euroclear or Cedelbank,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Distribution Compliance Period shall
be terminated upon the receipt by the Trustee of (i) a written
certificate from the Depositary, together with copies of
certificates from Euroclear and Cedelbank certifying that they
have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during
the Distribution Compliance Period pursuant to another exemption
from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a 144A Global Note
bearing a Private Placement Legend, all as contemplated by
Section 2.06(b) hereof), and (ii) an Officers' Certificate from
the Company. Following the termination of the Distribution
Compliance Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation
S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(d) Euroclear and Cedelbank Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and
the "General Terms and Conditions of Cedelbank" and "Customer
Handbook" of Cedelbank shall be applicable to interests in the
Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through
Euroclear or Cedelbank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers, authenticate Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the
Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
The Notes will be limited in aggregate principal amount
to $450,000,000, of which $325,000,000 will be issued on the date
hereof. The Company may issue Additional Notes from time to time
after the offering of the Initial Notes. Any offering of
Additional Notes is subject to Section 4.09 hereof. The Initial
Notes and any Additional Notes subsequently issued under this
Indenture shall be treated as a single class for all purposes
under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-
registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global
Notes.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of Holders or the Trustee all money held
by the Paying Agent for the payment of principal, premium or
Additional Interest, if any, or interest on the Notes, and will
notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise comply
with TIA 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days
before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise
comply with TIA 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global
Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee written notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such
notice from the Depositary; (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) there shall
have occurred and be continuing a Default with respect to the
Notes; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes
prior to (x) the expiration of the Distribution Compliance Period
and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon the
occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in
Sections 2.06, 2.07 and 2.10 hereof. Every Note authenticated and
made available for delivery in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to Section 2.06,
2.07 or 2.10 hereof, shall be authenticated and made available
for delivery in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a); however beneficial interests in
a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in
the Global Notes. The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the
Depositary, in accordance with the provisions of this Indenture
and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Distribution Compliance
Period, transfers of beneficial interests in the Regulation
S Temporary Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred only to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers
and exchanges of beneficial interests (other than transfers
of beneficial interests in a Global Note to Persons who take
delivery thereof in the form of a beneficial interest in the
same Global Note), the transferor of such beneficial
interest must deliver to the Registrar either (A)(1) a
written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in the specified Global Note
in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in
(B)(1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to
(x) the expiration of the Distribution Compliance Period and
(y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act.
Upon an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained
in this Indenture, the Notes and otherwise applicable under
the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. Beneficial interests in any
Restricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest
in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications
in item (1) thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Global Note,
then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications
in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. Beneficial interests in any
Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in the Unrestricted Global
Note or transferred to Persons who take delivery thereof in
the form of a beneficial interest in the Unrestricted Global
Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in the Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such beneficial interest is
being exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the
United States.
If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and,
upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal
to the principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in
Restricted Global Notes Prohibited. Beneficial interests in
an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form
of, a beneficial interest in any Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive
Note, then, upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being
transferred to a Lehman Accredited Investor or an
Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (3)(d) thereof, a certificate from the
transferee to the effect set forth in Exhibit D hereof
and, to the extent required by item 3(d) of Exhibit B,
an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act and such beneficial interest is being
transferred in compliance with any applicable blue sky
securities laws of any State of the United States;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note
in the appropriate principal amount. Definitive Notes issued
in exchange for beneficial interests in a Restricted Global
Note pursuant to this Section 2.06(c) shall be registered in
such names and in such authorized denominations as the
holder shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered.
Definitive Notes issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Regulation S Temporary
Global Notes for Definitive Notes. Notwithstanding Sections
2.06(c)(i)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be (A) exchanged
for a Definitive Note prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(c)(3)(B) under the Securities Act or (B) transferred to
a Person who takes delivery thereof in the form of a
Definitive Note prior to the conditions set forth in clause
(A) above or unless the transfer is pursuant to an exemption
from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. Notwithstanding
Section 2.06(c)(i) hereof, a holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer
such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such beneficial interest in a
Restricted Global Note is being exchanged or
transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
(iv) Beneficial Interests in Unrestricted Global Notes
to Unrestricted Definitive Notes. If any holder of a
beneficial interest in an Unrestricted Global Note proposes
to exchange such beneficial interest for a Definitive Note
or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal
amount. Definitive Notes issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be
registered in such names and in such authorized
denominations as the holder shall instruct the Registrar
through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes
are so registered. Definitive Notes issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv)
shall not bear the Private Placement Legend.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes to Restricted Definitive Notes
Prohibited. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for a Definitive Note bearing the
Private Placement Legend or transferred to a Person who
takes delivery thereof in the form of a Definitive Note
bearing the Private Placement Legend.
(d) Transfer or Exchange of Definitive Notes for
Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any Holder of
Restricted Definitive Notes proposes to exchange such Notes
for a beneficial interest in a Restricted Global Note or to
transfer such Restricted Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation (all of which may
be submitted by facsimile):
(A) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for a beneficial
interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Notes are being
transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such Restricted Definitive Notes are being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Notes are being
transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Notes are being
transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b)
thereof; or
(F) if such Restricted Definitive Notes are being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Definitive Notes, increase or
cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted
Global Note, in the case of clauses (B), (D), (E) and (F)
above, the 144A Global Note, and in the case of clause (C)
above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of
Restricted Definitive Notes may exchange such Notes for a
beneficial interest in the Unrestricted Global Note or
transfer such Restricted Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest
in the Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Definitive Notes are being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the
United States.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of
Unrestricted Definitive Notes may exchange such Notes for a
beneficial interest in the Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the
Unrestricted Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iv) Transfer or Exchange of Unrestricted Definitive
Notes to Beneficial Interests in Restricted Global Notes
Prohibited. An Unrestricted Definitive Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not
yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive
Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar
duly executed by such Holder or by his attorney-in-fact, duly
authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information,
as applicable, pursuant to the provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Restricted Definitive Notes may be
transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904 under the Securities Act, then the
transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of
the Securities Act, then the transferor must deliver
(x) a certificate in the form of Exhibit B hereto,
including the certifications in item (3) thereof, (y)
to the extent required by item 3(d) of Exhibit B
hereto, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act and
such beneficial interest is being transferred in
compliance with any applicable blue sky securities laws
of any State of the United States and (z) if the
transfer is being made to an Institutional Accredited
Investor and effected pursuant to an exemption from the
registration requirements of the Securities Act other
than Rule 144A under the Securities Act, Rule 144 under
the Securities Act or Rule 904 under the Securities
Act, a certificate from the transferee in the form of
Exhibit D hereto.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Restricted Definitive Notes may be
exchanged by any Holder thereof for an Unrestricted
Definitive Note or transferred to Persons who take delivery
thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Restricted Definitive Note
is being exchanged or transferred in compliance with
any applicable blue sky securities laws of any State of
the United States.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes
may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request for such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(iv) Transfer or Exchange of Unrestricted Definitive
Notes to Restricted Definitive Notes Prohibited. An Unrestricted
Definitive Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of a Restricted
Definitive Note.
(f) Exchange Offer. Upon the occurrence of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that are not (x) broker-
dealers, (y) Persons participating in the distribution of the
Exchange Notes or (z) Persons who are affiliates (as defined in
Rule 144) of the Company and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer.
Concurrent with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and make available for
delivery to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (b)
below, each Global Note and each Definitive Note (and
all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the
following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR OTHER SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR
TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR
OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED
STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE
TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraph
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) of this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend.
The Regulation S Temporary Global Note shall bear a legend
in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global
Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole
and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such
reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other
Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such
increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon the
Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.10,
4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next
succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction
of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon the written order of the Company
signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Agent and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section
2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption
date or maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed
to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver
or consent, Notes owned by the Company, or by any Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that a Trustee
has actual knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Notes upon a written order of the Company signed by two Officers
of the Company. Temporary Notes shall be substantially in the
form of Definitive Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate
Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and
in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company
shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be
less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of
such interest to be paid.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP,"
"CINS," and "ISIN" numbers (if then generally in use), and, if
so, the Trustee shall use CUSIP, CINS or ISIN numbers as
applicable, in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on
the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be
affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee in writing of any change
in the CUSIP, CINS or ISIN numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than 60
days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption
price.
Section 3.02. Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any
time, selection of Notes for redemption shall be made by the
Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are
listed, or, if the Notes are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and
appropriate; provided that no Notes of less than $1,000 shall be
redeemed in part. Notices of redemption shall be mailed by first
class mail at least 30 but not more than 60 days before the
redemption date to each Holder of Notes to be redeemed at its
registered address. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state
the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion thereof
shall be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption
become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions
of them called for redemption.
The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed,
the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture
that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
As of the date hereof, the Notes are not listed on any
national securities exchange. The Company shall give written
notice to the Trustee of any such listing promptly after it
becomes effective.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at
least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed
(including CUSIP, CINS or ISIN numbers, if any) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion
shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP, CINS or ISIN number, if
any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense;
provided, however, that the Company shall have delivered to the
Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. on the Business Day prior to the
redemption date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay
the redemption price of, and accrued interest on, all Notes to be
redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the
Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section
3.07, the Notes shall not be redeemable at the Company's option
prior to August 1, 2004. Thereafter, the Notes shall be subject
to redemption at any time at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any,
to the applicable redemption date, if redeemed during the twelve-
month period beginning on August 1 of the years indicated below:
Year Percentage
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing clause (a), on or
prior to August 1, 2002, the Company may on any one or more
occasions redeem up to an aggregate of 35% of the Notes
originally issued at a redemption price of 113% of the principal
amount thereof, plus accrued and unpaid interest and Additional
Interest thereon, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), with the net
cash proceeds of one or more Equity Offerings by the Company or
the net cash proceeds of one or more Equity Offerings by Blount
International that are contributed to the Company as common
equity capital; provided that at least 65% of the Notes
originally issued remain outstanding immediately after the
occurrence of each such redemption (excluding Notes held by
Blount International, the Company and their Subsidiaries); and
provided, further, that any such redemption must occur within 90
days of the date of the closing of such Equity Offering.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15
hereof, the Company is not required to make mandatory redemption
or sinking fund payments with respect to the Notes. The Company
may at any time and from time to time purchase Notes in the open
market or otherwise.
Section 3.09. Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an Asset Sale Offer to all
Holders to purchase Notes, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of
20 Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required to
be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose
name a Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the
Company shall send, by first class mail, a notice to the Trustee
and each of the Holders, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer.
The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall
state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.09 and Section 4.10 hereof and the length of
time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may only elect to have all of
such Note purchased and may not elect to have only a portion of
such Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender
the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, a depositary, if appointed
by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the
Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to
the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the
Offer Amount has been tendered, all Notes tendered, and shall
deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The
Company, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the Company
shall promptly issue a new Note, and the Trustee, upon written
request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section
3.09, any purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any,
and interest shall be considered paid on the date due if the
Paying Agent, if other than Blount International or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date,
money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if
any, and interest then due. The Company shall pay all Additional
Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan,
The City of New York, an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-
registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of their obligations to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes.
The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company
in accordance with Section 2.03 hereof.
Section 4.03. Reports.
So long as any Notes are outstanding, Blount
International shall furnish to the Holders of Notes, within 15
days after the time Blount International would be required to
file such information with the Commission, if it were subject to
Section 13 or 15(d) of the Exchange Act: (a) all quarterly and
annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K
(or any successor forms) if Blount International were required to
file those forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report on the
annual financial statements by Blount International's certified
independent accountants; and (b) all current reports that would
be required to be filed with the Commission on Form 8-K (or any
successor form) if Blount International were required to file
such reports.
If Blount International has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and
annual financial information required by the preceding paragraph
shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes, and in
Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of
operations of Blount International and its Restricted
Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of Blount
International.
In addition, Blount International shall file a copy of
all information and reports referred to in clauses (a) and (b)
above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations
(unless the Commission will not accept that filing) and make that
information available to securities analysts and prospective
investors upon request. Blount International and the Guarantors
have also agreed that, for so long as any Notes are not freely
transferable under the Securities Act, they will furnish to the
Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) Blount International shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of Blount
International and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers
with a view to determining whether Blount International and the
Company have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or
her knowledge, Blount International and the Company have kept,
observed, performed and fulfilled each and every covenant
contained in this Indenture and are not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what
action Blount International or the Company are taking or propose
to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action Blount
International or the Company are taking or propose to take with
respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant
to Section 4.03 hereof shall be accompanied by a written
statement of Blount International's independent public
accountants (who shall be a firm of established national
reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to
their attention that would lead them to believe that Blount
International or the Company has violated any provisions of
Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, as soon as possible and in
any event within five Business Days after any Officer becomes
aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what
action Blount International or the Company is taking or proposes
to take with respect thereto.
Section 4.05. Taxes.
Blount International shall pay, and shall cause each of
its Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where
the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06. Sale and Leaseback Transactions.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, enter into any sale and
leaseback transaction; provided that Blount International or any
Restricted Subsidiary may enter into a sale and leaseback
transaction if: (i) Blount International or such Restricted
Subsidiary, as applicable, could have incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and
leaseback transaction under the Fixed Charge Coverage Ratio test
in the first paragraph of Section 4.09 hereof; (ii) the gross
cash proceeds of such sale and leaseback transaction are at least
equal to the fair market value, as (if in excess of $20,000,000)
determined in good faith by Blount International and set forth in
an Officers' Certificate delivered to the Trustee, of the
property that is the subject of such sale and leaseback
transaction; and (iii) the transfer of assets in such sale and
leaseback transaction is permitted by, and Blount International
or that Restricted Subsidiary applies the proceeds of such
transaction in compliance with Section 4.10 hereof.
Section 4.07. Restricted Payments.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of Blount International's or any of its
Restricted Subsidiaries' Equity Interests (including any
distribution, dividend or payment in connection with any merger
or consolidation involving Blount International or any of its
Restricted Subsidiaries) or to the direct or indirect holders of
Blount International's or any of its Restricted Subsidiaries'
Equity Interests in their capacity as such, except for dividends
or distributions that are payable in Equity Interests (other than
Disqualified Stock) of Blount International or payable to Blount
International or a Restricted Subsidiary of Blount International;
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving Blount International) any Equity
Interests of the Company, Blount International or any direct or
indirect parent of Blount International; (iii) make any payment
on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated
to the Notes or the Guarantees, except the scheduled payment of
interest and Additional Interest, if any, or principal and
premium, if any, at the Stated Maturity of the Indebtedness that
is subordinated to the Notes or the Guarantees or Indebtedness
that is permitted under clause (viii) of Section 4.09 hereof, or
(iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default shall have occurred and be continuing
or would occur as a consequence thereof;
(b) at the date of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period,
Blount International would have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof;
(c) the aggregate amount of such Restricted Payment
and all other Restricted Payments made since the Issue Date
(excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (vi), (vii) and (viii) of the next succeeding paragraph) is
less than or equal to the sum, without duplication, of (i) 50% of
the Consolidated Net Income of Blount International for the
period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the Issue Date through the
last full fiscal quarter of Blount International for which
internal financial statements are available at the time of that
Restricted Payment (or, if the Consolidated Net Income for that
period is a deficit, minus 100% of the deficit); plus (ii) 100%
of the aggregate net cash proceeds or the fair market value of
property other than cash received by Blount International since
the Issue Date as a contribution to its common equity capital or
from the issue or sale of Equity Interests of Blount
International (other than Disqualified Stock) or from the issue
or sale of Disqualified Stock or debt securities of Blount
International that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified
Stock or convertible debt securities) sold to a Subsidiary of
Blount International); plus (iii) an amount equal to the lesser
of (A) the sum of the net reduction in the Restricted Investments
made by Blount International or any of its Restricted
Subsidiaries in any Person resulting from repurchases, repayments
or redemptions of the Restricted Investment by such Person,
proceeds realized on the sale of the Restricted Investment and
proceeds representing the return of capital (excluding dividends
and distributions), in each case received by Blount International
or any of its Restricted Subsidiaries and (B) the initial amount
of such Restricted Investments; plus (iv) if any Unrestricted
Subsidiary is redesignated by Blount International as a
Restricted Subsidiary of Blount International after the Issue
Date, an amount equal to the lesser of (A) the net book value of
Blount International's Investment in the Unrestricted Subsidiary
at the time of the redesignation and (B) the fair market value of
Blount International's Investment in the Unrestricted Subsidiary
at the time of the redesignation.
The preceding provisions shall not prohibit: (i) the
payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration, the dividend
would have complied with the provisions of this Indenture;
(ii) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any Indebtedness
of the Company or any Guarantor that is subordinated to the Notes
or the Guarantees or of any Equity Interests of Blount
International or any Restricted Subsidiary of Blount
International in exchange for, or out of the net cash proceeds of
the sale (other than to a Subsidiary of Blount International) of,
Equity Interests of Blount International (other than Disqualified
Stock); provided that the amount of any net cash proceeds that
are utilized for any such Restricted Payment shall be excluded
from clause (c)(ii) of the preceding paragraph; provided,
further, that in the case of any such sale of Equity Interests of
Blount International, the net cash proceeds from the sale (x) are
used to make any such Investment within 270 days of the sale or
(y) are used to effect any other transaction contemplated by this
clause (ii) within 90 days of the sale; (iii) the defeasance,
redemption, repurchase or other acquisition of Indebtedness of
Blount International or any Guarantor that is subordinated to the
Notes or the Guarantees with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend or distribution by a Restricted
Subsidiary of Blount International to the holders of such
Restricted Subsidiary's common Equity Interests so long as Blount
International or a Restricted Subsidiary of Blount International
receives at least its pro rata share (and in like form) of the
dividend or distribution in accordance with its common Equity
Interests; (v) the payment of dividends on Blount International's
common stock, following the first Equity Offering after the Issue
Date, of up to 3% per annum of the net cash proceeds of the
Equity Offering by Blount International other than an Equity
Offering with respect to common stock registered on Form S-8;
(vi) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Blount
International or any Restricted Subsidiary of Blount
International held by any member of Blount International's (or
any of its Restricted Subsidiaries') management, employees and
directors pursuant to any management equity subscription
agreement, stock option agreement, employment agreement or any
other management or employee benefit plan, trust arrangement or
agreement; provided that the price paid for all repurchased,
redeemed, acquired or retired Equity Interests in all cases,
other than as a result of death or disability, does not exceed
$2,500,000 in the aggregate in any twelve-month period (with
unused amounts in any calendar year being carried over to
succeeding calendar years subject to a maximum of $5,000,000 in
any calendar year); (vii) the deemed repurchase of Capital Stock
by Blount International on the exercise of stock options; and
(viii) Restricted Payments, when taken together with all other
Restricted Payments made pursuant to this clause (viii), in an
aggregate amount since the Issue Date not to exceed $25,000,000;
provided that Blount International will not and will not permit
any of its Restricted Subsidiaries to make any Restricted Payment
contemplated by clauses (iii) through (v) and clauses (vii) and
(viii) above so long as an Event of Default has occurred and is
continuing.
The Board of Directors of Blount International may
designate any Restricted Subsidiary of Blount International to be
an Unrestricted Subsidiary if that designation would not cause a
Default. If a Restricted Subsidiary of Blount International is
designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by Blount
International and its Restricted Subsidiaries in the newly
designated Unrestricted Subsidiary will be deemed to be an
Investment made as of the time of that designation and will
either reduce the amount available for Restricted Payments under
this Section 4.07 or reduce the amount available for future
Investments under one or more clauses of the definition of
Permitted Investments, as Blount International shall determine.
Such designation shall only be permitted if that Investment would
be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of Blount International may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary of
Blount International if the redesignation would not cause a
Default. The Company shall be a Restricted Subsidiary of Blount
International and may not be designated as an Unrestricted
Subsidiary.
The amount of all Restricted Payments (other than cash)
shall be the fair market value of the assets or securities
proposed to be transferred or issued to or by Blount
International or a Restricted Subsidiary of Blount International,
as the case may be, pursuant to the Restricted Payment on the
date of such Restricted Payment. The fair market value of any
assets or securities that are required to be valued by this
Section 4.07 shall be determined in good faith by Blount
International. Not later than the date of making any Restricted
Payment in an aggregate amount which exceeds $20.0 million,
Blount International shall deliver to the Trustee an Officers'
Certificate stating that the Restricted Payment is permitted and
setting forth the basis upon which the calculations required by
this Section 4.07 were computed.
If any Restricted Investment is sold or otherwise
liquidated or repaid or any dividend or payment is received by
Blount International or any of its Restricted Subsidiaries and
such amounts may be credited to clause (c)(i) or (iii) of the
first paragraph of this Section 4.07, then such amounts will be
credited only to the extent of amounts that do not otherwise
increase the amount available as a Permitted Investment pursuant
to clause (xii) in the definition of "Permitted Investments."
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly,
create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted
Subsidiary of Blount International that is not a Guarantor to:
(i) pay dividends or make any other distributions on its Capital
Stock to Blount International or any of its Restricted
Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits; (ii) pay any
indebtedness owed to Blount International or any of its
Restricted Subsidiaries; (iii) make loans or advances to Blount
International or any of its Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to Blount
International or any of its Restricted Subsidiaries.
However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness as in effect on the Issue Date and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than
those contained in that Existing Indebtedness, as in effect on
the Issue Date; (ii) the New Credit Facilities as in effect on
the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings thereof or such other Credit Facility, provided that
those amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings,
and such other Credit Facility, are no more restrictive, taken as
a whole, with respect to dividend and other payment restrictions
than those contained in the New Credit Facilities, as in effect
on the Issue Date; (iii) this Indenture and the Notes or any
other indenture governing debt securities that are no more
restrictive, taken as a whole, with respect to dividend and other
payment restrictions than those contained in this Indenture and
the Notes; (iv) applicable law or any applicable rule, regulation
or order; (v) any instrument governing Indebtedness or Capital
Stock of a Person acquired by Blount International or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent that Indebtedness was incurred
in connection with or in contemplation of that acquisition),
which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided
that, in the case of Indebtedness, such Indebtedness was
permitted to be incurred by the terms of this Indenture;
(vi) customary non-assignment provisions in leases entered into
in the ordinary course of business; (vii) purchase money
obligations for property acquired in the ordinary course of
business that impose restrictions on the property so acquired of
the nature described in clause (iv) of the preceding paragraph;
(viii) any agreement for the sale or other disposition of a
Restricted Subsidiary of Blount International that restricts
distributions by that Restricted Subsidiary pending its sale or
other disposition; (ix) Permitted Refinancing Indebtedness,
provided that the restrictions contained in the agreements
governing that Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced; (x) Liens
securing Indebtedness that limit the right of the debtor to
dispose of the assets subject to that Lien; (xi) provisions with
respect to the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale
agreements and other similar agreements entered into in the
ordinary course of business; (xii) any Purchase Money Note or
other Indebtedness or contractual requirements incurred with
respect to a Qualified Receivables Transaction relating to a
Receivables Subsidiary; (xiii) restrictions on cash or other
deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; (xiv) secured
Indebtedness otherwise permitted to be incurred pursuant to the
provisions of Section 4.12 hereof that limits the right of the
debtor to dispose of the assets securing the Indebtedness; and
(xv) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancing of the contracts,
instruments or obligations referred to in clauses (i) through
(xiv) above, provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of
Blount International's Board of Directors not materially more
restrictive in the aggregate with respect to the dividend and
other payment restrictions than those (considered as a whole)
contained in the dividend or other payment restrictions prior to
the applicable amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
Blount International shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired
Debt), and Blount International and the Company shall not issue
any Disqualified Stock and will not permit any of their
respective Subsidiaries (other than the Company) to issue any
shares of Preferred Stock; provided, however, that Blount
International and the Company may incur Indebtedness (including
Acquired Debt), Blount International and the Company may issue
Disqualified Stock, and Restricted Subsidiaries of Blount
International that are Guarantors may incur Indebtedness or issue
Preferred Stock, if the Fixed Charge Coverage Ratio for Blount
International's most recently ended four full fiscal quarters for
which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock or Preferred Stock is issued
would have been at least 2.0 to 1.0 if incurred or issued during
the period from the Issue Date through December 31, 2000, at
least 2.25 to 1.0 if incurred or issued during the period from
January 1, 2001 to December 31, 2001, and at least 2.50 to 1.0 if
incurred or issued thereafter.
The first paragraph of this Section 4.09 shall not
prohibit any of the following (collectively, "Permitted Debt"):
(i) the incurrence by Blount International, the
Company and any Restricted Subsidiary of Blount
International that is a Guarantor of additional Indebtedness
and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under
this clause (i) (with letters of credit being deemed to have
a principal amount equal to the maximum potential
reimbursement liability (excluding interest and fees) of
Blount International and its Restricted Subsidiaries
thereunder) not to exceed an amount equal to $500,000,000
minus (a) the aggregate amount of all permanent repayments
of principal under any revolving Indebtedness pursuant to
such Credit Facilities (which are accompanied by a
corresponding permanent commitment reduction) and (b) the
aggregate amount of all mandatory repayments of the
principal of any term Indebtedness pursuant to such Credit
Facilities (excluding any such payments to the extent
refinanced at the time of payment under a new Credit
Facility or otherwise immediately reborrowed) that have
actually been made since the Issue Date;
(ii) the incurrence by Blount International and its
Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company and the
Guarantors of Indebtedness represented by the Notes to be
issued on the Issue Date and the Exchange Notes to be issued
pursuant to the Registration Rights Agreement (including, in
each case, the Guarantees);
(iv) the incurrence by Blount International or any of
its Restricted Subsidiaries of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of
financing all or any part of the purchase price or lease
expense or cost of construction or repair, improvement or
addition to property, plant or equipment used in the
business of Blount International or such Restricted
Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to
this clause (iv), not to exceed, in aggregate principal
amount at any one time outstanding, 5% of Total Assets on a
pro forma basis (including a pro forma application of the
net proceeds of such Indebtedness), as if such Indebtedness
had been incurred on the date of calculation;
(v) the incurrence by Blount International or any of
its Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was incurred under the
first paragraph of this Section 4.09 or clause (ii), (iii)
or (v) of this paragraph;
(vi) Indebtedness incurred by Blount International or
any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to (A) letters of
credit issued in the ordinary course of business in respect
of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims or (B) commercial
letters of credit issued in the ordinary course of business;
provided, however, that upon the drawing of such letters of
credit or the incurrence of the Indebtedness, these
obligations are reimbursed within 30 days following such
drawing or incurrence;
(vii) Indebtedness arising from agreements of
Blount International or a Restricted Subsidiary of Blount
International providing for indemnification, adjustment of
purchase price or similar obligations, in each case,
incurred or assumed in connection with the disposition of
any business, assets or a Subsidiary of Blount
International, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary of Blount International for
purpose of financing such acquisition;
(viii) the incurrence by Blount International or any
of its Restricted Subsidiaries of intercompany Indebtedness
between or among Blount International and any of its
Restricted Subsidiaries; provided, however, that
(A) Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to
the Notes and this Indenture, in the case of the Company, or
the Guarantee, in the case of a Guarantor and (B)(1) any
subsequent issuance or transfer of Equity Interests that
results in such Indebtedness being held by a Person other
than Blount International or any of its Restricted
Subsidiaries and (2) any sale or other transfer of such
Indebtedness to a Person that is not either Blount
International or any of its Restricted Subsidiaries shall be
deemed, in each case, to constitute an incurrence of such
Indebtedness by Blount International or its Restricted
Subsidiary, as the case may be, that was not permitted by
this clause (viii);
(ix) the incurrence by Blount International or any of
its Restricted Subsidiaries of Hedging Obligations that are
incurred for the purpose of (A) fixing or hedging interest
rate risk with respect to any floating rate Indebtedness
that is permitted to be outstanding by the terms of this
Indenture or (B) hedging exposure to foreign currency
fluctuations;
(x) (A) the guarantee by Blount International, the
Company or any of the other Guarantors of Indebtedness of
Blount International or a Restricted Subsidiary of Blount
International or (B) the incurrence of Indebtedness of
Blount International or a Restricted Subsidiary of Blount
International to the extent that such Indebtedness is
supported by a letter of credit, in each case that was
permitted to be incurred by another provision of this
Section 4.09;
(xi) the incurrence of Non-Recourse Debt by
Unrestricted Subsidiaries, provided, however, that if such
Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted
Subsidiary of Blount International that was not permitted by
this clause (xi), and the issuance of Preferred Stock by
Unrestricted Subsidiaries;
(xii) the accrual of interest, the accretion or
amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock or Preferred Stock in the
form of additional shares of the same class of Disqualified
Stock or Preferred Stock, as the case may be, which will not
be deemed to be an incurrence of Indebtedness or an issuance
of Disqualified Stock or Preferred Stock, as the case may
be, for purposes of this Section 4.09; provided, in each
case, that the amount thereof is included in the Fixed
Charges of Blount International and its Restricted
Subsidiaries as accrued;
(xiii) the incurrence by Blount International or any
of its Restricted Subsidiaries of Indebtedness in respect of
performance and surety bonds and completion guarantees
provided in the ordinary course of business to the extent
that the incurrence does not result in the incurrence of any
obligation for the payment of borrowed money to others;
(xiv) the incurrence by a Receivables Subsidiary of
Indebtedness that is not recourse to Blount International or
any other Restricted Subsidiary of Blount International
(other than with respect to Standard Securitization
Undertakings) in connection with a Qualified Receivables
Transaction; and
(xv) the incurrence by Blount International or any of
its Restricted Subsidiaries of additional Indebtedness in an
aggregate principal amount (or accreted value, as
applicable) at any time outstanding, not to exceed
$50,000,000.
For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness
meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (xv) above, or is
entitled to be incurred pursuant to the first paragraph of this
Section 4.09, Blount International shall be permitted to classify
all or a portion of such item of Indebtedness on the date of its
incurrence, or reclassify at a later date all or a portion of
such item of Indebtedness, in any manner that complies with this
Section 4.09.
Section 4.10. Asset Sales.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) Blount International (or the Restricted Subsidiary of
Blount International, as the case may be) receives consideration
at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or
otherwise disposed of; (ii) the fair market value is determined
by the Board of Directors of Blount International and evidenced
by a resolution of that Board of Directors set forth in an
Officers' Certificate delivered to the Trustee in the event such
Asset Sale involves aggregate consideration in excess of
$20,000,000 million; and (iii) at least 75% of the consideration
therefor received by Blount International or the Restricted
Subsidiary of Blount International is in the form of cash or Cash
Equivalents or Marketable Securities. For purposes of this
provision, each of the following shall be deemed to be cash:
(A) any liabilities of Blount International (or the Restricted
Subsidiary of Blount International, as the case may be), as shown
on its most recent balance sheet (other than contingent
liabilities and liabilities that are by their terms subordinated
to the Notes or any Guarantee) that are assumed by the transferee
of the assets pursuant to a customary novation agreement that
releases the transferor from further liability; (B) any
securities, notes or other obligations received from the
transferee that are within 90 days converted by Blount
International or the Restricted Subsidiary of Blount
International into cash (to the extent of that cash); (C) any
Designated Noncash Consideration received by Blount International
or any of its Restricted Subsidiaries in the Asset Sale; provided
that the aggregate fair market value (as determined above) of the
Designated Noncash Consideration, taken together with the fair
market value at the time of receipt of all other Designated
Noncash Consideration received pursuant to this clause (C) less
the amount of Net Proceeds previously realized in cash from prior
Designated Noncash Consideration is less than 10% of Total Assets
at the time of the receipt of the Designated Noncash
Consideration (with the fair market value of each item of
Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in
value); and (D) Additional Assets received in an exchange of
assets transaction.
Within 18 calendar months after the receipt by Blount
International or a Restricted Subsidiary of Blount International
of any Net Proceeds from an Asset Sale, the Company or Blount
International may apply those Net Proceeds at its option, (i) to
repay Senior Debt, including Indebtedness under the New Credit
Facilities and the 1998 Indenture, and, if the Senior Debt repaid
is revolving credit Indebtedness, to correspondingly reduce the
lenders' commitments with respect thereto; (ii) to acquire all or
substantially all of the assets or a majority of the Voting Stock
of another company that is engaged in a Permitted Business;
(iii) to make a capital expenditure in a Permitted Business; or
(iv) to acquire Additional Assets; provided that Blount
International will have complied with this clause (iv) if, within
18 calendar months of the Asset Sale, Blount International has
entered into an agreement covering the acquisition which is
thereafter completed within 180 days after the date of the
agreement. Pending the final application of any such Net
Proceeds, the Company or Blount International may temporarily
reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall be deemed
to constitute "Excess Proceeds". When the aggregate amount of
Excess Proceeds exceeds $10,000,000, the Company shall make an
offer to all Holders of Notes, as well as all holders of other
Indebtedness that is pari passu with the Notes and that has the
benefit of provisions requiring the Company to make a similar
offer (an "Asset Sale Offer"), to purchase the maximum principal
amount of Notes and such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds. The offer price will be
equal to 100% of the principal amount of Notes and other
Indebtedness to be purchased or the lesser amount required under
agreements governing such other Indebtedness, plus accrued and
unpaid interest and Additional Interest, if any, to the date of
purchase. Blount International or the Company may use any Excess
Proceeds remaining after consummation of an Asset Sale Offer for
any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Company shall select the Notes and
other pari passu Indebtedness to be purchased on a pro rata basis
based on the principal amount of Notes and other pari passu
Indebtedness so tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and all other applicable securities
laws and regulations in connection with each purchase of Notes
pursuant to an Asset Sale Offer. If the provisions of any
securities laws or regulations conflict with this Section 4.10,
the Company will comply with the applicable securities laws and
regulations and by so doing will not be deemed to have breached
its obligations under this Section 4.10.
Section 4.11. Transactions with Affiliates.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate of such Person (each, an "Affiliate
Transaction"), unless (i) the Affiliate Transaction is on terms
that are no less favorable to Blount International or the
relevant Restricted Subsidiary than terms that would have been
obtained in a comparable transaction by Blount International or
such Restricted Subsidiary with an unrelated Person and
(ii) Blount International delivers to the Trustee (A) with
respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $5,000,000, a resolution of its Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of its Board of Directors and (B) with
respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $25,000,000, Blount International obtains an opinion
from an accounting, appraisal or investment banking firm of
national standing to the effect that the Affiliate Transaction is
fair to Blount International or the relevant Restricted
Subsidiary of Blount International from a financial point of view
or that the terms of the Affiliate Transaction are at least as
favorable to Blount International or the relevant Restricted
Subsidiary of Blount International as might reasonably be
obtained in a comparable arm's length transaction with an
unaffiliated third party.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the
provisions of the prior paragraph: (i) any employment agreement
entered into by Blount International or any of its Restricted
Subsidiaries in the ordinary course of business; (ii)
transactions between or among Blount International and/or its
Restricted Subsidiaries; (iii) payment of reasonable fees to
officers, directors, employees or consultants of Blount
International or to Persons who are not otherwise Affiliates of
Blount International; (iv) any sale, conveyance or other transfer
of accounts receivable and other related assets customarily
transferred in an asset securitization transaction involving
accounts receivable to a Receivables Subsidiary in a Qualified
Receivables Transaction; (v) Restricted Payments that are
permitted by, and Investments that are not prohibited by Section
4.07 hereof; (vi) indemnification payments made to officers,
directors and employees of Blount International or any of its
Restricted Subsidiaries pursuant to charter, bylaw, statutory or
contractual provisions; (vii) the payment of customary annual
management, consulting and advisory fees and related expenses to
Lehman Brothers Merchant Banking Partners and its Affiliates;
(viii) payments by Blount International or any of its Restricted
Subsidiaries to Lehman Brothers Merchant Banking Partners and its
Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other
investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by a
majority of the Board of Directors of Blount International in
good faith; (ix) the existence of, or the performance by Blount
International or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders' agreement
(including any registration rights agreement or purchase
agreement related thereto) to which it is a party as of the Issue
Date and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the
performance by Blount International or any of its Restricted
Subsidiaries of obligations under any future amendment to, any
such existing agreement or under any similar agreement entered
into after the Issue Date will only be permitted by this
clause (ix) to the extent that the terms of the amendment or new
agreement are not otherwise disadvantageous to the Holders of
Notes in any material respect; (x) transactions pursuant to the
terms of the Transaction Documents in effect on the Issue Date,
as amended thereafter; provided, however, that transactions
pursuant to the terms of any future amendment to any Transaction
Document will only be permitted pursuant to this clause (x) to
the extent that the terms of the amendment are not otherwise
disadvantageous to the Holders of Notes in any material respect;
(xi) transactions with Unrestricted Subsidiaries, customers,
clients, suppliers, joint venture partners, joint ventures,
including their members or partners, or purchasers or sellers of
goods or services, in each case in the ordinary course of
business (including pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Indenture which
are, in the aggregate (taking into account all the costs and
benefits associated with such transactions), materially no less
favorable to Blount International or the applicable Restricted
Subsidiary of Blount International than those that would have
been obtained in a comparable transaction by Blount International
or the applicable Restricted Subsidiary of Blount International
with an unrelated Person, in the reasonable determination of the
Board of Directors of Blount International or the senior
management thereof, or are on terms at least as favorable as
might reasonably have been obtained at such time from an
unaffiliated party; (xii) guarantees of performance by Blount
International and its Restricted Subsidiaries of Unrestricted
Subsidiaries in the ordinary course of business, except for
guarantees of Obligations in respect of borrowed money;
(xiii) pledges of Equity Interests of Unrestricted Subsidiaries
for the benefit of lenders of Unrestricted Subsidiaries;
(xiv) any issuance of securities, or other payments, awards or
grants in cash, securities, options or otherwise pursuant to, or
the funding of, employment arrangements, stock option and stock
ownership plans approved by the Board of Directors of Blount
International; and (xv) the issuance or sale of any Capital Stock
(other than Disqualified Stock) of Blount International.
Section 4.12. Liens.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien of any kind
securing Indebtedness, Attributable Debt or trade payables on any
asset now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, unless all payments due under
this Indenture and the Notes are secured on an equal and ratable
basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
Section 4.13. Additional Guarantees.
Blount International shall not permit any of its
Restricted Subsidiaries, directly or indirectly, to guarantee or
pledge any assets to secure the payment of any Credit Facility of
Blount International or any Restricted Subsidiary of Blount
International unless (i) all of the obligors, guarantors or
pledgors under that Credit Facility are Foreign Subsidiaries or
(ii) that Restricted Subsidiary is a Guarantor or that Restricted
Subsidiary becomes a Guarantor by simultaneously executing and
delivering to the Trustee an Opinion of Counsel and a
supplemental indenture providing for a Guarantee of the payment
of the Notes by such Restricted Subsidiary which Guarantee shall
be (A) in the case of Indebtedness that is subordinated to the
Notes or the guarantee of the Notes, senior to such Restricted
Subsidiary's guarantee of or pledge to secure such other
Indebtedness; (B) in the case of Indebtedness that is pari passu
with the Notes or the guarantee of the Notes, pari passu with
that Restricted Subsidiary's guarantee of or pledge to secure the
other Indebtedness; and (C) in the case of Indebtedness that is
Senior Debt of the issuer, subordinated to the guarantee of the
Senior Debt to the same extent as the guarantee of the Notes by a
Restricted Subsidiary of Blount International is subordinated to
Senior Debt of such Restricted Subsidiary.
This Section 4.13 shall not apply to any Subsidiary of
Blount International that has been properly designated as an
Unrestricted Subsidiary or as a Receivables Subsidiary.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, Blount International shall
do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each of its
Restricted Subsidiaries, including the Company, in accordance
with the respective organizational documents (as the same may be
amended from time to time) of Blount International or any such
Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of Blount International and
its Restricted Subsidiaries, including the Company; provided,
however, that Blount International shall not be required to
preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted
Subsidiaries, including the Company, if the Board of Directors of
Blount International shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
Blount International and its Restricted Subsidiaries, including
the Company, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to
purchase all or any part (equal to $1,000 or an integral multiple
thereof) of that Holder's Notes pursuant to the offer on the
terms described below (the "Change of Control Offer"). In the
Change of Control Offer, the Company will offer a payment in cash
equal to 101% of the aggregate principal amount of Notes
purchased plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control
and offering to purchase Notes on the date specified in such
notice (the "Change of Control Payment Date"). The Change of
Control Payment Date may not be earlier than 30 days nor later
than 60 days from the date such notice is mailed. Such notice,
which shall govern the terms of the Change of Control offer,
shall state: (i) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes tendered will be
accepted for payment; (ii) the purchase price and the purchase
date; (iii) that any Note not tendered will continue to accrue
interest; (iv) that, unless Blount International defaults in the
payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (v)
that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on
the third Business Day preceding the Change of Control Payment
Date; (vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Notes purchased;
and (vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an
integral multiple thereof.
The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and all other applicable securities
laws and regulations in connection with the repurchase of the
Notes as a result of a Change of Control. If the provisions of
any securities laws or regulations conflict with this Section
4.15, the Company will comply with the applicable securities laws
and regulations and by so doing will not be deemed to have
breached its obligations under the Change of Control provisions
of this Indenture.
(b) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment all Notes or
portions thereof properly tendered pursuant to the Change of
Control Offer; (ii) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or
portions thereof so tendered; and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the
Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note shall be in a principal amount
of $1,000 or an integral multiple thereof. Prior to complying
with any of the provisions of this Section 4.15, but in any event
within 90 days following a Change of Control, the Company will
either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this
Section 4.15. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
The provisions described above that require the Company
to make a Change of Control Offer following a Change of Control
will be applicable regardless of whether or not any other
provisions of this Indenture are applicable.
(c) If the New Credit Facilities (which currently
prohibit Blount International and the Company from redeeming or
purchasing any Notes, and also provides that the occurrence of
certain change of control events with respect to Blount
International and the Company would constitute a default under
such New Credit Facilities) are in effect, or any future credit
agreements or other agreements relating to Indebtedness to which
the Company becomes a party containing similar restrictions are
in effect, at the time of the occurrence of a Change in Control
when the Company is prohibited by such agreements from purchasing
Notes, the Company shall obtain the requisite consent of its
lenders to the purchase of Notes or refinance the borrowings
under the agreement containing such prohibition. The Company
shall first comply with the covenant described in the preceding
sentence before it shall be required to purchase Notes in the
event of a Change of Control; provided that the Company's failure
to purchase Notes in the event of a Change of Control after
complying with the covenant described in this Section 4.15
constitutes an Event of Default described in clause (d) under
Section 6.01 hereof if not cured within 30 days after the notice
required by such clause.
(d) Notwithstanding anything to the contrary in this
Section 4.15, the Company shall not be required to make a Change
of Control Offer upon a Change of Control if a third party offers
to purchase the Notes in the manner, at the times and otherwise
in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer by the Company and that
third party purchases all Notes validly tendered to it in
response to that offer.
Section 4.16. No Senior Subordinated Debt.
Blount International shall not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness
that is subordinate or junior in right of payment to any Senior
Debt of Blount International and senior in any respect in right
of payment to the Notes. No Guarantor shall incur, create,
issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to
the Senior Debt of such Guarantor and senior in any respect in
right of payment to such Guarantor's Guarantee.
Section 4.17. Payments for Consent.
Blount International shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or
otherwise, to or for the benefit of any Holder of Notes for or as
an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid and is paid to all Holders of
the Notes that consent, waive or agree to amend in the time frame
set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.18. Business Activities.
Blount International shall not, and shall not permit
any of its Restricted Subsidiaries to, engage in any business
other than Permitted Businesses, except to an extent that would
not be material to Blount International and its Restricted
Subsidiaries taken as a whole.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Neither Blount International nor the Company shall,
directly or indirectly, consolidate or merge with or into another
Person (whether or not Blount International or the Company, as
the case may be, is the surviving corporation); or sell, assign,
transfer, convey, lease or otherwise dispose of all or
substantially all of the properties or assets of Blount
International or the Company, as the case may be, and their
respective Restricted Subsidiaries taken as a whole, in one or
more related transactions, to another Person unless (i) either
(A) Blount International or the Company, as the case may be, is
the surviving corporation, limited liability company, business
trust or limited partnership; or (B) the Person formed by or
surviving any such consolidation or merger (if other than Blount
International or the Company, as the case may be) or to which
such sale, assignment, transfer, conveyance, lease or other
disposition shall have been made is a corporation, limited
liability company, business trust or limited partnership
organized or existing under the laws of the United States, any
state thereof or the District of Columbia; provided that in the
case of (A) or (B) above, if the surviving Person is a limited
liability company, business trust or limited partnership, a
corporation which is a Wholly Owned Subsidiary of the surviving
Person shall act as joint and several obligor with respect to the
Notes; (ii) the Person formed by or surviving any such
consolidation or merger (if other than Blount International or
the Company, as the case may be) or the Person to which such
sale, assignment, transfer, conveyance, lease or other
disposition shall have been made assumes all the obligations of
Blount International or the Company, as the case may be, under
this Indenture, the Registration Rights Agreement and the Notes
or the Guarantee, as the case may be, pursuant to agreements
reasonably satisfactory to the Trustee and the execution and
delivery of an Opinion of Counsel to the Trustee that such
agreements are legal, valid and binding; (iii) immediately after
such transaction no Default exists; and (iv) immediately after
giving pro forma effect to such transaction and any related
financing transactions as if such transactions had occurred at
the beginning of the most recently ended four-quarter period for
which internal financial statements are available immediately
preceding such transaction either: (A) the entity surviving such
consolidation or merger would be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof; or (B) the Fixed Charge Coverage Ratio for Blount
International or the Company, as the case may be, or the Person
formed by or surviving such consolidation or merger (if other
than Blount International or the Company, as the case may be), or
to which such sale, assignment, transfer, conveyance, lease or
other disposition has been made, would, immediately after giving
pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, not be less
than the Fixed Charge Coverage Ratio for Blount International or
the Company, as the case may be, and any of their respective
Restricted Subsidiaries immediately prior to such transaction.
The foregoing clauses (iii) and (iv) of this Section
5.01 will not apply to:
(a) the consolidation or merger of Blount
International or the Company with or into a Wholly Owned
Restricted Subsidiary of Blount International; or
(b) a sale, assignment, transfer, conveyance, lease or
other disposition of properties or assets among Blount
International, the Company or any of their respective Wholly
Owned Subsidiaries that are not Unrestricted Subsidiaries; or
(c) the merger of Blount International or the Company
with an Affiliate of Blount International that has no significant
assets or liabilities and was formed solely for the purpose of
changing the jurisdiction of organization of the Blount
International or the Company, as the case may be, to another
State of the United States or the form of Blount International or
the Company, as the case may be, so long as the amount of
Indebtedness of Blount International or the Company, as the case
may be, and their respective Restricted Subsidiaries is not
increased thereby.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of
all or substantially all of the assets of Blount International or
the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which
Blount International or the Company, as the case may be, is
merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to
"Blount International" or the "Company" or "Blount", as the case
may be, shall refer instead to the successor corporation and not
to Blount International or the Company, as the case may be), and
may exercise every right and power of Blount International or the
Company, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as Blount
International or the Company, as the case may be, herein;
provided, however, that the predecessor Person, Blount
International or the Company, as the case may be, shall not be
relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of Blount
International's or the Company's, as the case may be, assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults for 30 days in the payment,
when due, of interest on, or Additional Interest with respect to,
the Notes whether or not prohibited by Article 10 hereof;
(b) the Company defaults in payment, when due, of the
principal of, or premium, if any, on the Notes whether or not
prohibited by Article 10 hereof;
(c) Blount International or any of its Restricted
Subsidiaries fails to purchase any of the Notes as required under
the provisions of Section 4.10 or 4.15 hereof, or comply with the
provisions of Section 5.01 hereof;
(d) Blount International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given;
(e) Blount International or any of its Restricted
Subsidiaries fails to comply with any of the other agreements in
this Indenture or the Notes for 60 days after notice of such
failure has been given;
(f) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by
Blount International or any of its Significant Subsidiaries (or
the payment of which is guaranteed by Blount International or any
of its Significant Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, if such
default (i) is caused by a failure to pay principal of such
Indebtedness at final maturity and after giving effect to the
applicable grace period, if any, provided in such Indebtedness on
the date of such default (a "Payment Default"); or (ii) results
in the acceleration of such Indebtedness prior to its express
maturity; and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates without
duplication $25,000,000 or more;
(g) Blount International or any of its Significant
Subsidiaries fails to pay final judgments aggregating in excess
of $25,000,000, which judgments are not paid, discharged or
stayed for a period of 60 consecutive days;
(h) except as permitted by this Indenture, if any
Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason (other
than in accordance with the terms of such Guarantee and this
Indenture) to be in full force and effect or any Guarantor, or if
any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Guarantee;
(i) Blount International or any of its Significant
Subsidiaries pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a
custodian of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they
become due; or
(j) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against Blount International or
any of its Significant Subsidiaries in an involuntary
case;
(ii) appoints a custodian of Blount International
or any of its Significant Subsidiaries or for all or
substantially all of the property of Blount
International or any of its Significant Subsidiaries;
or
(iii) orders the liquidation of Blount
International;
and the order or decree remains unstayed and in effect
for 60 consecutive days.
The Holders of a majority in aggregate principal amount
of the Notes then outstanding may, on behalf of the Holders of
all of the Notes, by written notice to the Trustee, waive any
existing Default and its consequences under this Indenture except
a continuing Default in the payment of interest or Additional
Interest on, or the principal of, the Notes.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all the Notes to be due and
payable immediately; provided that so long as any Indebtedness
permitted to be incurred pursuant to the Indebtedness under the
New Credit Facilities shall be outstanding, the acceleration
shall not be effective until the earlier of (i) an acceleration
of any Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Notwithstanding the foregoing, in
the case of an Event of Default specified in Section 6.01(i) or
(j) hereof, with respect to Blount International or the Company,
all outstanding Notes will become due and payable immediately
without further action or notice. Holders of the Notes may not
enforce this Indenture or the Notes except as provided in this
Indenture. Subject to the limitations described in this
Article 6, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest) if it determines
that withholding notice is in their interest.
In the case of any Event of Default occurring by reason
of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay upon an
Optional Redemption, an equivalent premium shall also become and
be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs
prior to August 1, 2004 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on redemption of
the Notes prior to August 1, 2004, then the premium specified
below shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes during the
twelve-month period ending on August 1 of the years indicated
below:
Year Percentage
2000 117.333%
2001 115.167%
2002 113.000%
2003 110.833%
2004 108.667%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder
of a Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by written notice
to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and
Additional Interest, if any, or interest on, the Notes (including
in connection with an offer to purchase) (provided, however, that
the Holders of a majority in aggregate principal amount at
maturity of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may, by written notice, direct the time, method
and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of
other Holders of Notes or that may involve the Trustee in
personal liability.
The Trustee may take any other action which it deems
proper and which is not inconsistent with any such direction. In
the event the Trustee takes any action or follows any direction
pursuant to the Indenture, the Trustee shall be entitled to
indemnification reasonably satisfactory to it in its sole
discretion against any loss or expense caused by taking such
action or following such direction.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer
and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes do not
give the Trustee a written direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of
principal, premium and Additional Interest, if any, and interest
on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or
(b) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of,
premium and Additional Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys
for amounts due under Section 7.07 hereof, including payment of
all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Additional
Interest, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and Additional Interest, if any
and interest, respectively; and
Third: to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in its exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith or negligence on its
part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of
this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it in its sole discretion
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required
by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate
any fact or matter stated in such document.
(b) Before the Trustee acts or refrains from acting,
it may consult with counsel and it may require an Officers'
Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of
Counsel. The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or
direction.
(g) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(h) The Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by a
Responsible Officer of the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the specific Default
or Event of Default, the Notes and this Indenture.
(i) Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Company or any Affiliate of the Company with the same rights
it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate
such conflict within 120 days, apply to the Commission for
permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimers.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Notes in the manner and to the extent provided
in TIA 313(c) a notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the
Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May
15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that
complies with TIA 313(a) (but if no event described in TIA
313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also
shall comply with TIA 313(b)(2). The Trustee shall also transmit
by mail all reports as required by TIA 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the Commission and each stock exchange on which the Notes are
listed in accordance with TIA 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
such compensation as the Company and the Trustee shall from time
to time agree in writing for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee or any
predecessor Trustee against any and all losses, claims, damages,
penalties, fines, liabilities or expenses, including incidental
and out-of-pocket expenses and reasonable attorneys fees
("losses") incurred by it arising out of or in connection with
the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the
Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such losses may be
attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture
and, to the extent permitted by law, any rejection or termination
under any bankruptcy plan.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(i) or (j)
hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any
Bankruptcy Law.
To secure the Company's and the Guarantor's payment
obligations to the Trustee, the Trustee shall have a lien prior
to the Notes on all money or property held or collected by the
Trustee other than money or property held in trust to pay
principal of and interest on particular Notes. The Trustee's
rights to receive payment of any amounts due under this Section
7.07 shall not be subordinate to any other liability or
Indebtedness of the Company or the Guarantors.
The Trustee shall comply with the provisions of TIA
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of Notes of at
least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Holder of
a Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10, such Holder of a Note may
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the
successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is
a corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at
least $150,000,000 as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA 310(a)(1), (2) and (5). The
Trustee is subject to TIA 310(b).
Section 7.11. Preferential Collection of Claims Against
Company.
The Trustee is subject to TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). A Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the
extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, elect
to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes and all obligations of the Guarantors with
respect to their Guarantees upon compliance with the conditions
set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes and all
obligations of the Guarantors with respect to their Guarantees on
the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the
outstanding Notes and Guarantees, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee,
on written demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal
of, premium, if any, or interest and Additional Interest, if any,
on such Notes when such payments are due solely from the trust
fund described in Section 8.04 hereof, (b) the Company's
obligations with respect to such Notes under Sections 2.06, 2.07,
2.10 and 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (d) this Article 8. Subject to
compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under
Sections 4.03, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.15, 4.16, 4.17 and 4.18 and Articles 5 and 10 hereof with
respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to
be deemed "outstanding" for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the outstanding Notes, the Company
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03 hereof, subject to
the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(c) through 6.01(h) hereof shall not
constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the
outstanding Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Additional
Interest, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B)
since the Issue Date, there has been a change in the applicable
federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Event of Default under Section 6.01(i) or
6.01(j) hereof shall have occurred and be continuing at any time
in the period ending on the 91st day after the date of the
deposit;
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default
under, any material agreement or instrument (other than this
Indenture) to which Blount International or any of its Restricted
Subsidiaries is a party or by which Blount International or any
of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, assuming no intervening
bankruptcy of the Company or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that
no Holder is an "insider" of the Company under applicable
Bankruptcy Law, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders over any
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied
with.
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-
callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the "Trustee")
pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
cash or non-callable Government Securities deposited pursuant to
Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding
Notes.
Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in
excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Subject to Section 7.07, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its written request
or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a secured
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be,
by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, the Company and
the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of the Notes in the case of a merger
or consolidation or sale of all or substantially all of the
Company's assets permitted hereby;
(d) to provide for the assumption of Blount
International's obligations to Holders of Notes in respect of the
Guarantees in the case of a merger or consolidation or sale of
all or substantially all of Blount International's assets
permitted hereby;
(e) to make any change that would provide any
additional rights or benefits to the Holders of the Notes;
(f) to provide for the issuance of Additional Notes in
accordance with the provisions set forth in this Indenture;
(g) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture
under the TIA; or
(h) to make any other change, provided that such other
change does not adversely affect the legal rights hereunder of
any Holder of the Notes or to surrender any right or power
conferred upon Blount International or the Company.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by
the Trustee of the documents described in Section 7.02(b) hereof,
the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that, by its express terms, affects its
own rights, duties or immunities under this Indenture or
otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this Indenture
(including Sections 3.09, 4.10 and 4.15 hereof) and the Notes may
be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment
of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes). Without the consent of
at least 75% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, such Notes), no waiver or
amendment to this Indenture may make any change in the provisions
of Article 10 hereof that adversely affects the rights of any
Holder of Notes. Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section
9.02.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02(b) hereof,
the Trustee shall join with the Company in the execution of such
amended or supplemental Indenture unless such amended or
supplemental Indenture, by its express terms, affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or
supplemental Indenture.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled
to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that
unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which
is 180 days after such record date, any such consent previously
given shall automatically and without further action by any
Holder be canceled and of no further effect.
It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders
of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal
amount of the Notes then outstanding may waive compliance in a
particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each
Holder affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to the
redemption of the Notes;
(c) reduce the rate of or change the time for payment
of interest on any Note;
(d) waive a Default in the payment of principal of or
premium, if any, or interest or Additional Interest, if any, on
the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of, or interest
or premium or Additional Interest, if any, on the Notes;
(g) waive a redemption payment with respect to any
Note;
(h) release any Guarantor from any of its obligations
under its Guarantee or this Indenture, except in accordance with
the terms of this Indenture; or
(i) make any change in the foregoing amendment and
waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note
if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental
Indenture authorized pursuant to this Article 9 if the amendment
or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01 hereof) shall be fully protected in relying upon,
an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that the
supplemental indenture will be valid and binding on the Company.
ARTICLE 10.
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by the Notes is
subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full in cash
or Cash Equivalents of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the
holders of Senior Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
The holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of Senior Debt
(including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt)
before the Holders of Notes will be entitled to receive any
payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments
made from the trust described in Article 8), in the event of any
distribution to creditors of the Company: (i) in a liquidation or
dissolution of Blount; (ii) in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to Blount
or its property; (iii) in an assignment for the benefit of
creditors; or (iv) in any marshaling of the Company's assets and
liabilities.
Section 10.03. Default on Designated Senior Debt.
The Company may not make any payment or distribution to
the Trustee or any Holder in respect of Obligations with respect
to the Notes and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than (i) Permitted Junior
Securities and (ii) payments and other distributions made from
any defeasance trust created pursuant to Section 8.01 hereof)
until all principal and other Obligations with respect to the
Senior Debt have been paid in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs
and is continuing beyond any applicable grace period; or
(ii) a default, other than a payment default, on any
series of Designated Senior Debt occurs and is continuing
that then permits holders of such series of Designated
Senior Debt to accelerate its maturity and the Trustee
receives a written notice of the default (a "Payment
Blockage Notice") from the holders of or a Representative
with respect such series of Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no
subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (i) at least 360
days shall have elapsed since the delivery of the
immediately prior Payment Blockage Notice and (ii) all
scheduled payments of principal, interest, premium and
Additional Interest, if any, on the Notes that have come due
have been paid in full in cash. No nonpayment default that
existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Payment Blockage Notice unless
such default shall have been cured or waived for a period of
not less than 90 days.
The Company may and shall resume payments on and
distributions in respect of the Notes and may acquire them upon
the earlier of:
(1) in the case of a payment default, the date upon
which such default is cured or waived, and
(2) in the case of a nonpayment default referred to in
Section 10.03(ii) hereof, unless the maturity of any
Designated Senior Debt has been accelerated, upon the
earliest of the dates on which one of the following events
occurs:
(a) the Person who gave the Payment Blockage
Notice terminates the blockage period by written notice
to the Trustee and the Company;
(b) the default giving rise to the Payment
Blockage Notice is cured, waived or otherwise no longer
continuing;
(c) the Designated Senior Debt has been
discharged or paid in full; or
(d) 179 days after the date on which the
applicable Payment Blockage Notice has been received,
if this Article otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
Section 10.04. Acceleration of Securities.
If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders of
Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives
any payment of any Obligations with respect to the Notes at a
time when the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by this Article 10,
such payment shall be held by the Trustee or such Holder, in
trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to, the holders of Senior Debt
as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which Senior
Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the
Trustee as are specifically set forth in this Article 10, and no
implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt, and shall not be liable to
any such holders if the Trustee shall pay over or distribute to
or on behalf of Holders or the Company or any other Person money
or assets to which any holders of Senior Debt shall be entitled
by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or negligence of the Trustee.
Section 10.06. Notice by Company
The Company shall promptly notify in writing the
Trustee and the Paying Agent of any facts known to the Company
that would cause a payment of any Obligations with respect to the
Notes to violate this Article 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full in cash and until
the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with
the Notes) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been
applied to the payment of Senior Debt. A distribution made under
this Article 10 to holders of Senior Debt that otherwise would
have been made to Holders of Notes is not, as between the Company
and Holders, a payment by the Company on the Notes.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of Holders
of Notes and holders of Senior Debt. Nothing in this Indenture
shall:
(1) impair, as between the Company and
Holders of Notes, the obligation of the Company, which
is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of
Notes and creditors of the Company other than their
rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of
Notes from exercising its available remedies upon a
Default or Event of Default, subject to (i) the rights
of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders
of Notes and (ii) the notice provisions of Section 6.02
hereof.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure
is still a Default or Event of Default.
Section 10.09. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be
impaired by any act or failure to act by the Company or any
Holder or by the failure of the Company or any Holder to comply
with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given
to holders of Senior Debt, the distribution may be made and the
notice given to their Representative.
Upon any payment or distribution of assets of the
Company referred to in this Article 10, the Trustee and the
Holders of Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee
or agent or other Person making any distribution to the Trustee
or to the Holders of Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders
of the Senior Debt and other Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would
prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to
make payments on the Notes, unless the Trustee shall have
received at its Corporate Trust Office at least three Business
Days prior to the date of such payment written notice of facts
(in the form of an officer's certificate) that would cause the
payment of any Obligations with respect to the Notes to violate
this Article 10. Only the Company or a Representative may give
the notice. Nothing in this Article 10 shall impair the claims
of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee in its individual or any other capacity may
hold Senior Debt with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of Notes, by the Holder's acceptance
thereof, authorizes and directs the Trustee on such Holder's
behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10, and
appoints the Trustee to act as such Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper
proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days
before the expiration of the time to file such claim, the credit
agents are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Notes.
Section 10.13. Amendments.
The provisions of this Article 10 shall not be amended
or modified without the written consent of the holders of at
least 75% in aggregate principal amount of the Notes then
outstanding if such amendment would adversely affect the rights
of Holders of Notes.
ARTICLE 11.
GUARANTEES
Section 11.01. Guarantees.
Subject to Section 11.04 hereof, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, the Notes and the
Obligations of the Company hereunder and thereunder, that:
(a) the principal of, premium, if any, interest and Additional
Interest, if any, on the Notes will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity,
by acceleration, redemption or otherwise, and interest on the
overdue principal, premium, if any (to the extent permitted by
law), interest on any interest, if any, and Additional Interest,
if any, on the Notes, and all other payment Obligations of the
Company to the Holders or all other obligations of the Company to
the Trustee hereunder or thereunder will be promptly paid in full
and performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, the same
will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so
due of any amount so guaranteed or any performance so guaranteed
for whatever reason the Guarantors will be jointly and severally
obligated to pay the same immediately. An Event of Default under
this Indenture or the Notes shall constitute an event of default
under the Guarantees, and shall entitle the Holders to accelerate
the obligations of the Guarantors hereunder in the same manner
and to the same extent as the Obligations of the Company.
The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity or
enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the Obligations
contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any Note Custodian, Trustee,
liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by the Company or
any Guarantor to the Trustee or such Holder, the Guarantees, to
the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in
relation to the Holders in respect of any Obligations guaranteed
hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the
purposes of its Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, and (y) in the event of any
declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor
for the purpose of its Guarantee. The Guarantors shall have the
right to seek contribution from any non-paying Guarantor as
provided in Section 11.06 hereof so long as the exercise of such
right does not impair the rights of the Holders or the Trustee
under the Guarantees or this Indenture.
Section 11.02. Subordination of Guarantee.
The Obligations of each Guarantor under its Guarantee
pursuant to this Article 11 shall be junior and subordinated to
the Senior Debt of such Guarantor on the same basis as the Notes
are junior and subordinated to Senior Debt of the Company. For
the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by
any of the Guarantors only at such times as they may receive
and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article 11 hereof.
Section 11.03. Execution and Delivery of Guarantee.
(a) To evidence its Guarantee set forth in Section
11.01 hereof, each Guarantor hereby agrees that a notation of
such Guarantee substantially in the form of Exhibit E hereto
shall be endorsed by manual or facsimile signature by an Officer
of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of
such Guarantor, by manual or facsimile signature, by an Officer
of such Guarantor.
(b) Each Guarantor hereby agrees that its Guarantee
set forth in Section 11.01 hereof shall remain in full force and
effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
(c) If an officer whose signature is on this Indenture
or on any Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which such Guarantee is
endorsed, such Guarantee shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Guarantees set forth in this Indenture on behalf of the
Guarantors.
(e) In the event that Blount International or the
Company creates or acquires any new Subsidiaries subsequent to
the date of this Indenture, if required by Section 4.17 hereof,
Blount International or the Company, as the case may be, shall
cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees in accordance with Section 4.13
hereof and this Article 11, to the extent applicable.
Section 11.04. Guarantors May Consolidate, Etc., on Certain
Terms.
(a) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture shall prohibit a merger
between a Guarantor and another Guarantor or a merger between a
Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person)
or sell or otherwise dispose of all or substantially all of its
assets to, another Person (other than the Company or another
Guarantor) unless (i) immediately after giving effect to such
transaction, no Default exists and (ii) either (x) the Person
formed by or surviving any such merger or consolidation, or to
which such sale of assets shall have been made (if other than
such Guarantor) assumes all the obligations of such Guarantor
under this Indenture, its Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture substantially in
the form of Exhibit F hereto, or (y) the Net Proceeds of such
transaction are applied in accordance with Section 4.10 hereof.
Notwithstanding the foregoing, any Guarantor that is a Subsidiary
of Blount International may merge with another Subsidiary of
Blount International that has no significant assets or
liabilities and was incorporated solely for the purpose of
reincorporating such Guarantor in another State of the United
States so long as the amount of Indebtedness of Blount
International and its Restricted Subsidiaries is not increased
thereby.
(c) In the case of any such consolidation, merger,
sale or conveyance and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the
Trustee and substantially in the form of Exhibit F hereto, of the
Guarantees endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person
shall succeed to and be substituted for the Guarantor with the
same effect as if it had been named herein as a Guarantor. Such
successor Person thereupon may cause to be signed any or all of
the Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All of the Guarantees so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though
all of such Guarantees had been issued at the date of the
execution hereof.
Section 11.05. Releases of Guarantees.
(a) In the event of (i) a sale or other disposition of
all or substantially all of the assets of any Guarantor that is a
Subsidiary of Blount International, or (ii) a sale or other
disposition of all of the Capital Stock of any Guarantor that is
a Subsidiary of Blount International, in each case to a Person
that is not (either before or after giving effect to such
transaction) a Subsidiary of Blount International, then such
Guarantor shall be automatically released and relieved of any
obligations under this Indenture and its Guarantee; provided that
(i) the Net Proceeds from such sale or other disposition are
treated in accordance with the provisions of Section 4.10 hereof
and (ii) the Company and Blount International are in compliance
with all other provisions of this Indenture applicable to such
disposition.
(b) Upon the designation of a Guarantor that is a
Subsidiary of Blount International by Blount International as an
Unrestricted Subsidiary or a Receivables Subsidiary in accordance
with the terms of this Indenture, such Guarantor shall be
released and relieved of any obligations under this Indenture and
its Guarantee.
(c) In the event of the Company's exercise of its
option under Section 8.01 hereof, each Guarantor that is a
Subsidiary of Blount International shall be released and relieved
of any obligations under this Indenture and its Guarantee.
(d) Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect of any of the foregoing, the
Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor that is a Subsidiary of
Blount International from its obligations under its Guarantee.
Any such Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal
of, premium, if any, interest and Additional Interest, if any, on
the Notes and for the other obligations of such Guarantor under
this Indenture as provided in this Article 11.
Section 11.06. Limitation on Guarantor Liability;
Contribution.
(a) For purposes hereof, each Guarantor's liability
shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and this Indenture and
(ii) the maximum amount that will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable law of any relevant
jurisdiction; provided that, it will be a presumption in any
lawsuit or other proceeding in which a Guarantor is a party that
the amount guaranteed pursuant to its Guarantee is the amount set
forth in clause (i) above unless any creditor, or representative
of creditors of such Guarantor, or debtor in possession or
trustee in bankruptcy of the Guarantor, otherwise proves in such
a lawsuit that the aggregate liability of the Guarantor is the
amount set forth in clause (ii) above. In making any
determination as to solvency or sufficiency of capital of a
Guarantor in accordance with the previous sentence, the right of
such Guarantor to contribution from other Guarantors as set forth
below, and any other rights such Guarantor may have, contractual
or otherwise, shall be taken into account.
(b) In order to provide for just and equitable
contribution among the Guarantors, the Guarantors agree, inter
se, that in the event any payment or distribution is made by any
Guarantor (a "Funding Guarantor") under its Guarantee, such
Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's Obligations with respect
to the Notes or any other Guarantor's obligations with respect to
its Guarantee.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA 318(c), the imposed
duties shall control.
Section 12.02. Notices.
Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered
in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company or any Guarantor:
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
With a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Kris F. Heinzelman
(Fax: 212-474-3700)
If to the Trustee:
United States Trust Company of New York
114 West 47th Street, 25th Floor
Mail Code HQ 25
New York, New York 10036-1532
Attention: Corporate Trust Division
(Fax: 212-852-1626)
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent
to Holders) shall take effect at the time of receipt thereof.
Any notice or communication to a Holder shall be mailed
by first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Noteholders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 12.03. Communications by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA 312(b) with
other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in
the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in
the opinion of such counsel, all such conditions precedent have
been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA 314(a)(4))
shall comply with the provisions of TIA 314(e) and shall
include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition and
the definitions relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been satisfied.
Section 12.06. Rule by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the
Guarantors under the Notes, this Indenture, the Guarantees or for
any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
GUARANTEES.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 12.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of August 19, 1999
BLOUNT, INC.
By:___________________________________
Name:
Title:
BLOUNT INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: Blount, Inc. as Member of BI, L.L.C.
By:______________________________
Name:
Title:
By: BI Holdings Corp. as Member of
BI, L.L.C.
By:______________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:___________________________________
Name:
Title:
FREDERICK MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: _________________________________________
Name:
Title:
EXHIBIT A1
(Face of Note)
CUSIP/CINS 095173AD2
13% Senior Subordinated Notes due 2009
No. ___ $_________
BLOUNT, INC.
promises to pay to _____________________________________
or registered assigns,
the principal sum of ___________________________________
Dollars on August 1, 2009.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Dated: [______________]
BLOUNT, INC.
By:
Name:
Title:
By:
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Dated: ______________
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
Name:
Title:
(Back of Note)
13% Senior Subordinated Notes due 2009
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]1
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
- --------------
1 This paragraph should be included only if the Note is issued in
global form.
- --------------
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Blount, Inc., a Delaware corporation
("Blount" or the "Company"), promises to pay interest on the
principal amount of this Note at 13% per annum from August 19,
1999 until maturity and shall pay the Additional Interest payable
pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"), with
the same force and effect as if made on the date for such
payment. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
February 1, 2000 Interest will be computed on the basis of a 360-
day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest to
the Persons who are registered Holders of Notes at the close of
business on the January 1 or July 15 next (whether or not a
Business Day) preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such
Interest Payment Date. The Notes will be payable as to principal,
premium and Additional Interest, if any, and interest at the
office or agency of the Company maintained for such purpose
within The City and State of New York, or, at the option of the
Company, payment of interest and Additional Interest may be made
by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States
Trust Company of New York, the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture; Subordination. The Company issued the Notes
under an Indenture dated as of August 19, 1999 (the "Indenture")
among the Company, the Guarantors named therein and the Trustee.
The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes issuable under the
Indenture are obligations of the Company limited to $450,000,000
in aggregate principal amount, plus amounts, if any, issued to
pay Additional Interest on outstanding Notes as set forth in
Paragraph 2 hereof.
The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior
payment in full in cash or Cash Equivalents of all Senior Debt,
whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. The Guarantees in
respect of the Notes will be subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior
Debt of each Guarantor, whether outstanding on the date of the
Indenture or thereafter created, incurred assumed or guaranteed.
Each Holder by its acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such
purposes.
5. Optional Redemption.
(a) Except as set forth in clause (b) of this
paragraph 5, the Notes shall not be redeemable at the Company's
option prior to August 1, 2004. Thereafter, the Notes shall be
subject to redemption at any time at the option of the Company,
in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid
interest and Additional Interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning on August 1 of the years indicated below:
Year Percentage
---- ----------
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing, on or prior to
August 1, 2002, the Company may on any one or more occasions
redeem up to an aggregate of 35% of the Notes originally issued
at a redemption price of 113% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest thereon,
if any, to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on
the relevant interest payment date), with the net cash proceeds
of one or more Equity Offerings by the Company or the net cash
proceeds of one or more Equity Offerings by Blount International
that are contributed to the Company as common equity capital;
provided that at least 65% of the Notes originally issued remain
outstanding immediately after the occurrence of each such
redemption (excluding Notes held by Blount International, the
Company and their Subsidiaries); and provided, further, that any
such redemption must occur within 90 days of the date of the
closing of such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments with
respect to the Notes.
7. Repurchase At Option Of Holder.
(a) If there is a Change of Control, the Company shall
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of aggregate principal amount thereof plus accrued
and unpaid interest and Additional Interest thereon, if any, to
the date of purchase (in either case, the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by
the Indenture.
(b) If the Company or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate
amount of Excess Proceeds exceeds $20,000,000, the Company will
be required to make an offer to all Holders of Notes and any
other Indebtedness that ranks pari passu with the Notes that, by
its terms, requires the Company to offer to repurchase such
Indebtedness with such Excess Proceeds (an "Asset Sale Offer"),
to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount of Notes and other Indebtedness to be
purchased or the lessor amount required under agreements
governing such other Indebtedness, plus accrued and unpaid
interest and Additional Interest, if any, to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes or
pari passu Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any Excess
Proceeds for any purpose not prohibited by the Indenture. If the
aggregate principal amount of Notes or pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. Notice Of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any
Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding
Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement And Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture
or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company's assets, to provide
for the assumption of Blount International's obligations to
Holders of Notes in respect of the Guarantees in the case of a
merger or consolidation or sale of all or substantially all of
Blount International's assets, to make any change that would
provide any additional rights or benefits to the Holders of the
Notes or any other change that does not adversely affect the
legal rights under the Indenture of any such Holder or to
surrender any right or power conferred upon the Company or Blount
International, to provide for the issuance of Additional Notes in
accordance with the Indenture, or to comply with the requirements
of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults And Remedies. An "Event of Default" occurs if:
(i) the Company defaults in the payment when due of interest on,
or Additional Interest, if any, with respect to, the Notes and
such default continues for a period of 30 days whether or not
prohibited by Article 10 of the Indenture; (ii) the Company
defaults in the payment when due of the principal of or premium,
if any, on the Notes whether or not prohibited by Article 10 of
the Indenture; (iii) Blount International or any of its
Restricted Subsidiaries fails to purchase any of the Notes as
required under the provisions of Section 4.10 or 4.15 of the
Indenture, or comply with the provisions of Section 5.01 of the
Indenture; (iv) Blount International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given; (v) Blount International
or any of its Restricted Subsidiaries fails to observe or perform
any other agreements in the Indenture or the Notes for 60 days
after notice of such failure has been given; (vi) a default
occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by Blount International or
any of its Significant Subsidiaries (or the payment of which is
guaranteed by Blount International or any of its Significant
Subsidiaries), whether such Indebtedness or guarantee now exists,
or is created after the Issue Date, which default (A) is caused
by a failure to pay principal of such Indebtedness at final
maturity and after giving effect to the applicable grace period,
if any, provided in such Indebtedness on the date of such default
(a "Payment Default"), or (B) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates without duplication $25,000,000 or more;
(vii) Blount International or any of its Significant Subsidiaries
fails to pay final judgments aggregating in excess of
$25,000,000, which judgments are not paid, discharged or stayed
for a period of 60 consecutive days; (viii) except as permitted
by the Indenture, if any Guarantee is held in any judicial
proceeding to be unenforceable or invalid or shall cease for any
reason (other than in accordance with the terms of such Guarantee
and the Indenture) to be in full force and effect or any
Guarantor, or if any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee; and
(ix) certain events of bankruptcy or insolvency with respect to
Blount International or any of its Significant Subsidiaries.
In the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to Blount
International or the Company, all outstanding Notes will become
due and payable without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately, provided that so long as any Indebtedness permitted
to be incurred pursuant to the Indebtedness under the New Credit
Facilities shall be outstanding, the acceleration shall not be
effective until the earlier of (i) an acceleration of any
Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to the optional
redemption provisions of the Indenture, an equivalent premium
shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If an
Event of Default occurs prior to August 1, 2004 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to August 1, 2004, then the premium
specified in the Indenture shall also become immediately due and
payable to the extent permitted by law upon the acceleration of
the Notes.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default and
its consequences under the Indenture except a continuing Default
in the payment of interest or Additional Interest on, or the
principal of, the Notes.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Trustee Dealings With Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as such,
shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration
for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. Additional Rights Of Holders Of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of August 19, 1999 between
the Company and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP, CINS and/or ISIN
numbers to be printed on the Notes and the Trustee may use CUSIP,
CINS and/or ISIN numbers in notices of redemption as a
convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
19. Governing Law. The internal law of the State of New
York shall govern and be used to construe this Note.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
_________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________________
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
_________________________________________________________________
Date:
Your Signature:____________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the box below:
_ _
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$______________
Date:___________ Your Signature:____________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE2
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
Principal
Amount of
this Global Signature
Amount of Amount of Note of
decrease in increase in following authorized
Principal Principal such officer of
Amount of Amount of decrease Trustee or
Date of this Global this Global (or Note
Exchange Note Note increase) Custodian
- ------------ ------------ ------------ ------------- ----------
- ---------
2 This should be included only if the Note is issued in global form.
- ---------
EXHIBIT A2
(Face of Regulation S Temporary Global Note)
CUSIP/CINS 409288AA6
13% Senior Subordinated Notes due 2009
No. ___ $_________
BLOUNT, INC.
promises to pay to _________________________________________
or registered assigns,
the principal sum of _______________________________________
Dollars on August 1, 2009.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Dated: [______________]
BLOUNT, INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Dated: ______________
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:___________________________
Name:
Title:
(Back of Regulation S Temporary Global Note)
13% Senior Subordinated Notes due 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]1
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
- ----------------
1 This paragraph should be included only if the Note is issued in
global form.
- ----------------
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Blount, Inc., a Delaware corporation
("Blount" or the "Company"), promises to pay interest on the
principal amount of this Note at 13% per annum from August 19,
1999 until maturity and shall pay the Additional Interest payable
pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"), with
the same force and effect as if made on the date for such
payment. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
February 1, 2000. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged
for one or more Regulation S Permanent Global Notes, the Holder
hereof shall not be entitled to receive payments of interest
hereon; until so exchanged in full, this Regulation S Temporary
Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
2. Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest to
the Persons who are registered Holders of Notes at the close of
business on the January 15 or July 15 next (whether or not a
Business Day) preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such
Interest Payment Date. The Notes will be payable as to principal,
premium and Additional Interest, if any, and interest at the
office or agency of the Company maintained for such purpose
within The City and State of New York, or, at the option of the
Company, payment of interest and Additional Interest may be made
by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States
Trust Company of New York, the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture; Subordination. The Company issued the Notes
under an Indenture dated as of August 19, 1999 (the "Indenture")
among the Company, the Guarantors named therein and the Trustee.
The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes issuable under the
Indenture are obligations of the Company limited to $450,000,000
in aggregate principal amount, plus amounts, if any, issued to
pay Additional Interest on outstanding Notes as set forth in
Paragraph 2 hereof.
The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior
payment in full in cash or Cash Equivalents of all Senior Debt,
whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. The Guarantees in
respect of the Notes will be subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior
Debt of each Guarantor, whether outstanding on the date of the
Indenture or thereafter created, incurred assumed or guaranteed.
Each Holder by its acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such
purposes.
5. Optional Redemption.
(a) Except as set forth in clause (b) of this
paragraph 5, the Notes shall not be redeemable at the Company's
option prior to August 1, 2004. Thereafter, the Notes shall be
subject to redemption at any time at the option of the Company,
in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid
interest and Additional Interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning on August 1 of the years indicated below:
Year Percentage
---- ----------
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing, on or prior to
August 1, 2002, the Company may on any one or more occasions
redeem up to an aggregate of 35% of the Notes originally issued
at a redemption price of 113% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest thereon,
if any, to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on
the relevant interest payment date), with the net cash proceeds
of one or more Equity Offerings by the Company or the net cash
proceeds of one or more Equity Offerings by Blount International
that are contributed to the Company as common equity capital;
provided that at least 65% of the Notes originally issued remain
outstanding immediately after the occurrence of each such
redemption (excluding Notes held by Blount International, the
Company and their Subsidiaries); and provided, further, that any
such redemption must occur within 90 days of the date of the
closing of such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments with
respect to the Notes.
7. Repurchase At Option Of Holder.
(a) If there is a Change of Control, the Company shall
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of aggregate principal amount thereof plus accrued
and unpaid interest and Additional Interest thereon, if any, to
the date of purchase (in either case, the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by
the Indenture.
(b) If the Company or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate
amount of Excess Proceeds exceeds $20,000,000, the Company will
be required to make an offer to all Holders of Notes and any
other Indebtedness that ranks pari passu with the Notes that, by
its terms, requires the Company to offer to repurchase such
Indebtedness with such Excess Proceeds (an "Asset Sale Offer"),
to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount of Notes and other Indebtedness to be
purchased or the lessor amount required under agreements
governing such other Indebtedness, plus accrued and unpaid
interest and Additional Interest, if any, to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes or
pari passu Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any Excess
Proceeds for any purpose not prohibited by the Indenture. If the
aggregate principal amount of Notes or pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. Notice Of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any
Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding
Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or
after the termination of the 40-day distribution compliance
period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or
more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement And Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture
or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company's assets, to provide
for the assumption of Blount International's obligations to
Holders of Notes in respect of the Guarantees in the case of a
merger or consolidation or sale of all or substantially all of
Blount International's assets, to make any change that would
provide any additional rights or benefits to the Holders of the
Notes or any other change that does not adversely affect the
legal rights under the Indenture of any such Holder or to
surrender any right or power conferred upon the Company or Blount
International, to provide for the issuance of Additional Notes in
accordance with the Indenture, or to comply with the requirements
of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults And Remedies. An "Event of Default" occurs if:
(i) the Company defaults in the payment when due of interest on,
or Additional Interest, if any, with respect to, the Notes and
such default continues for a period of 30 days whether or not
prohibited by Article 10 of the Indenture; (ii) the Company
defaults in the payment when due of the principal of or premium,
if any, on the Notes whether or not prohibited by Article 10 of
the Indenture; (iii) Blount International or any of its
Restricted Subsidiaries fails to purchase any of the Notes as
required under the provisions of Section 4.10 or 4.15 of the
Indenture, or comply with the provisions of Section 5.01 of the
Indenture; (iv) Blount International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given; (v) Blount International
or any of its Restricted Subsidiaries fails to observe or perform
any other agreements in the Indenture or the Notes for 60 days
after notice of such failure has been given; (vi) a default
occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by Blount International or
any of its Significant Subsidiaries (or the payment of which is
guaranteed by Blount International or any of its Significant
Subsidiaries), whether such Indebtedness or guarantee now exists,
or is created after the Issue Date, which default (A) is caused
by a failure to pay principal of such Indebtedness at final
maturity and after giving effect to the applicable grace period,
if any, provided in such Indebtedness on the date of such default
(a "Payment Default"), or (B) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates without duplication $25,000,000 or more;
(vii) Blount International or any of its Significant Subsidiaries
fails to pay final judgments aggregating in excess of
$25,000,000, which judgments are not paid, discharged or stayed
for a period of 60 consecutive days; (viii) except as permitted
by the Indenture, if any Guarantee is held in any judicial
proceeding to be unenforceable or invalid or shall cease for any
reason (other than in accordance with the terms of such Guarantee
and the Indenture) to be in full force and effect or any
Guarantor, or if any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee; and
(ix) certain events of bankruptcy or insolvency with respect to
Blount International or any of its Significant Subsidiaries.
In the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to Blount
International or the Company, all outstanding Notes will become
due and payable without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately, provided that so long as any Indebtedness permitted
to be incurred pursuant to the Indebtedness under the New Credit
Facilities shall be outstanding, the acceleration shall not be
effective until the earlier of (i) an acceleration of any
Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default occurring by reason of
any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding payment of
the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to the optional
redemption provisions of the Indenture, an equivalent premium
shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If an
Event of Default occurs prior to August 1, 2004 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to August 1, 2004, then the premium
specified in the Indenture shall also become immediately due and
payable to the extent permitted by law upon the acceleration of
the Notes.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default and
its consequences under the Indenture except a continuing Default
in the payment of interest or Additional Interest on, or the
principal of, the Notes.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Trustee Dealings With Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as such,
shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration
for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants
in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
17. Additional Rights Of Holders Of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of August 19, 1999 between
the Company and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures,
the Company has caused CUSIP, CINS and/or ISIN numbers to be
printed on the Notes and the Trustee may use CUSIP, CINS and/or
ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
19. Governing Law. The internal law of the State of New
York shall govern and be used to construe this Note.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
_____________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
_____________________________________________________________________
Date:__________
Your Signature:________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:________________
SIGNATURE GUARANTEE:
_______________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the box below:
_ _
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$______________
Date:__________ Your Signature:____________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY
GLOBAL NOTE3
The following exchanges of a part of this Regulation S
Temporary Global Note for an interest in another Global Note or
for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Regulation S
Temporary Global Note, have been made:
Principal
Amount of
this
Amount of Amount of Regulation
decrease in increase in S Temporary Signature
Principal Principal Global Note of
Amount of Amount of following authorized
this this such officer of
Regulation Regulation decrease Trustee or
Date of S Temporary S Temporary (or Note
Exchange Global Note Global Note increase) Custodian
- ------------ ------------ ------------ ------------- ----------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
United States Trust Company of New York
114 West 47th Street, 25th Floor
Mail Code HQ 25
New York, New York 10036-1532
Attention: Corporate Trust Division (Fax: 212-852-1626)
Re: 13% Senior Subordinated Notes due 2009.
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), Blount, Inc., as issuer (the
"Company"), the Guarantors named therein and United States Trust
Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the
Indenture.
________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such
Note[s] or interests (the "Transfer"), to ___________ (the
"Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
_
1. |_| Check if Transferee will take delivery of Beneficial
Interests in the 144A Global Note or Definitive Notes Pursuant to
Rule 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Beneficial Interests
or Definitive Note(s) are being transferred to a Person that the
Transferor reasonably believes is purchasing the Beneficial
Interests or Definitive Note(s) for its own account, or for one
or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture,
the transferred Beneficial Interest or Definitive Note(s) will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the
Definitive Note(s) and in the Indenture and the Securities Act.
_
2. |_| Check if Transferee will take delivery of Beneficial
Interests in the Temporary Regulation S Global Note, the
Regulation S Global Note or Definitive Notes pursuant to
Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under
the Securities Act and (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made
prior to the expiration of the Distribution Compliance Period,
the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred
Beneficial Interest or Definitive Note(s) will be subject to the
restrictions on Transfer enumerated in the Private Placement
Legend printed on the Temporary Regulation S Global Note,
Regulation S Global Note and/or the Definitive Note(s) and in the
Indenture and the Securities Act.
_
3. |_| Check and complete if Transferee will take delivery of
Beneficial Interests in the 144A Note or Definitive Notes
pursuant to any provision of the Securities Act other than Rule
144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to
Beneficial Interests in Restricted Global Notes and Definitive
Notes bearing the Private Placement Legend and pursuant to and in
accordance with the Securities Act and any applicable blue sky
securities laws of any State of the United States, and
accordingly the Transferor hereby further certifies that (check
one):
_
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
_ or
(b) |_| such Transfer is being effected to the Company or a
Subsidiary thereof,
_ or
(c) |_| such Transfer is being effected pursuant to an
effective registration statement under the Securities Act;
_ or
(d) |_| such Transfer is being effected to a Lehman
Accredited Investor or an Institutional Accredited Investor and
pursuant to an available exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that the
Transfer complies with the transfer restrictions applicable to
Beneficial Interests in a Restricted Global Note or Definitive
Notes bearing the Private Placement Legend and the requirements
of the exemption claimed, which certification is supported by (x)
if such Transfer is in respect of a principal amount of Notes at
the time of Transfer of $250,000 or more, a certificate executed
by the Transferee in the form of Exhibit D to the Indenture, or
(y) if such Transfer is in respect of a principal amount of Notes
at the time of transfer of less than $250,000, (1) a certificate
executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such
Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the
transferred Beneficial Interest or Definitive Note(s) will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Note(s) and in the
Indenture and the Securities Act.
_
4. |_| Check if Transferee will take delivery of Beneficial
Interests in the Unrestricted Global Note or in Unrestricted
Definitive Notes.
_
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Beneficial Interests or
Definitive Note(s) will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Definitive Notes bearing the
Private Placement Legend and in the Indenture.
_
(b) |_| Check if Transfer is Pursuant to Regulation S. (i)
The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Beneficial Interests or
Definitive Note(s) will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Definitive Notes bearing the
Private Placement Legend and in the Indenture.
_
(c) |_| Check if Transfer is Pursuant to Other Exemption.
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred Beneficial
Interests or Definitive Note(s) will not be subject to the
restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Definitive
Notes bearing the Private Placement Legend and in the Indenture.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____________, ____
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
_
(a) |_| Beneficial Interests in the:
_
(i) |_| 144A Global Note (CUSIP _______), or
_
(ii)|_| Regulation S Global Note (CUSIP ______); or
_
(b) |_| Restricted Definitive Notes.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
_
(a) |_| Beneficial Interests in the:
_
(i) |_| 144A Global Note (CUSIP _____), or
_
(ii) |_| Regulation S Global Note (CUSIP _____), or
_
(iii)|_| Unrestricted Global Note (CUSIP ______); or
_
(b) |_| Restricted Definitive Notes; or
_
(c) |_| Definitive Notes that do not bear the Private Placement Legend,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
United States Trust Company of New York
114 West 47th Street, 25th Floor
Mail Code HQ 25
New York, New York 10036-1532
Attention: Corporate Trust Division (Fax: 212-852-1626)
Re: 13% Senior Subordinated Notes due 2009.
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), among Blount, Inc., as issuer
(the "Company"), the Guarantors named therein and United States
Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the
Indenture.
______________ (the "Holder") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $______________ in such
Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Definitive Notes or Restricted
Beneficial Interests for Unrestricted Definitive Notes or
Unrestricted Beneficial Interests
_
(a) |_| Check if Exchange is from Restricted Beneficial
Interest to Unrestricted Beneficial Interest. In connection with
the Exchange of the Holder's Restricted Beneficial Interest for
Unrestricted Beneficial Interests in an equal principal amount,
the Holder hereby certifies (i) the Unrestricted Beneficial
Interests are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted
Beneficial Interests are being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
_
(b) |_| Check if Exchange is from Restricted Beneficial
Interest to Unrestricted Definitive Notes. In connection with
the Exchange of the Holder's Restricted Beneficial Interests for
Unrestricted Definitive Notes, the Holder hereby certifies (i)
the Definitive Notes are being acquired for the Holder's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act
and (iv) the Definitive Notes are being acquired in compliance
with any applicable blue sky securities laws of any state of the
United States.
_
(c) |_|Check if Exchange is from Restricted Definitive Notes
to Unrestricted Beneficial Interests. In connection with the
Holder's Exchange of Restricted Definitive Notes for Unrestricted
Beneficial Interests, (i) the Unrestricted Beneficial Interests
are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted
Beneficial Interests are being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
_
(d) |_|Check if Exchange is from Restricted Definitive Notes
to Unrestricted Definitive Notes. In connection with the
Holder's Exchange of a Restricted Definitive Note for
Unrestricted Definitive Notes, the Holder hereby certifies (i)
the Unrestricted Definitive Notes are being acquired for the
Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act , (iii) the restrictions on
transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Notes are being acquired in
compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange of Restricted Definitive Notes or Restricted
Beneficial Interests for Restricted Definitive Notes or
Restricted Beneficial Interests
_
(a) |_| Check if Exchange is from Restricted Beneficial
Interests to Restricted Definitive Note. In connection with the
Exchange of the Holder's Restricted Beneficial Interest for
Restricted Definitive Notes with an equal principal amount, (i)
the Restricted Definitive Notes are being acquired for the
Holder's own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Notes
issued will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted
Definitive Notes and in the Indenture and the Securities Act.
_
(b) |_|Check if Exchange is from Restricted Definitive Notes
to Restricted Beneficial Interests. In connection with the
Exchange of the Holder's Restricted Definitive Note for
Restricted Beneficial Interests in the [CHECK ONE] 144A Global
Note, Regulation S Global Note with an equal principal amount,
(i) the Definitive Notes are being acquired for the Holder's own
account without transfer and (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the
Restricted Definitive Note and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Beneficial Interests issued will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ____________, ____
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING ACCREDITED INVESTOR
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
United States Trust Company of New York
114 West 47th Street, 25th Floor
Mail Code HQ 25
New York, New York 10036-1532
Attention: Corporate Trust Division (Fax: 212-852-1626)
Re: 13% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), among Blount, Inc., as issuer
(the "Company"), the Guarantors named therein and United States
Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of
$____________ aggregate principal amount at maturity of
Definitive Notes, we confirm that:
1. we are an "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933, as amended (the "Securities Act"), an entity in which all
of the equity owners are accredited investors within the meaning
of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act (an
"institutional accredited investor") or a Lehman Accredited
Investor, an "accredited investor" within the meaning of Rule
501(a)(5) or (6) under the Securities Act;
2. (A) any purchase of the Notes by us will be for
our own account or for the account of one or more other
institutional accredited investors or as fiduciary for the
account of one or more trusts, each of which is an "accredited
investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion, (B) we are a "bank," within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan
association" or other institution described in Section 3(a)(5)(A)
of the Securities Act that is acquiring Notes as fiduciary for
the account of one or more institutions for which we exercise
sole investment discretion or (C) we are a Lehman Accredited
Investor purchasing the Notes for our own account;
3. we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits
and risks of purchasing Notes;
4. we are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any state of the United
States or any other applicable jurisdictions, provided that the
disposition of our property and the property of any accounts for
which we are acting as fiduciary shall remain at all times within
our control; and
5. we acknowledge that we have had access to such
financial and other information, and have been afforded the
opportunity to ask such questions of representatives of the
Company and receive answers thereto, as we deem necessary in
connection with our decision to purchase the Notes.
We understand that the Notes are being offered in a
transaction not involving any public offering within the United
States within the meaning of the Securities Act and that the
Notes have not been registered under the Securities Act. We
agree on our own behalf and on behalf of any investor account for
which we are purchasing the Notes, to offer, sell or otherwise
transfer such Notes prior to (x) the date which is two years (or
such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the
later of the date of the original issue of the Notes and the last
date on which the Company or any affiliate of the Company was the
owner of such Notes (or any predecessor thereto) or (y) such
later date, if any, as may be required by applicable law (the
"Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes
are eligible for resale pursuant to Rule 144A, to a Person we
reasonably believe is a QIB, that purchases for its own account
or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the
United States within the meaning of Regulation S under the
Securities Act or (e) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject
in each of the foregoing cases to any requirements of law that
the disposition of our property or the property of such investor
account or accounts be at all times within our control and in
compliance with any applicable state securities laws. We further
agree to provide any Person purchasing any of the Notes other
than pursuant to clause (b) above from us a notice advising such
purchaser that resales of such securities are restricted as
stated herein. We understand that the Trustee and the Registrar
for the Notes will not be required to accept for registration of
transfer any Notes, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on
transfer have been complied with.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters
covered hereby.
_________________________________________
[Insert Name of Accredited Investor]
By:______________________________________
Name:
Title:
Dated: ____________, ____
EXHIBIT E
FORM OF NOTATION ON SENIOR SUBORDINATED NOTE RELATING TO
GUARANTEE
Subject to Section 11.06 of the Indenture, each
Guarantor hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns,
the Notes and the Obligations of the Company under the Notes or
under the Indenture, that: (a) the principal of, premium, if any,
interest and Additional Interest, if any, on the Notes will be
promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or
otherwise, and interest on overdue principal, premium, if any (to
the extent permitted by law), interest on any interest, if any,
and Additional Interest, if any, on the Notes and all other
payment Obligations of the Company to the Holders or the Trustee
under the Indenture or under the Notes will be promptly paid in
full and performed, all in accordance with the terms thereof; and
(b) in case of any extension of time of payment or renewal of any
Notes or any of such other payment Obligations, the same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately.
The obligations of the Guarantors to the Holders and to
the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article 11 of the Indenture, and reference
is hereby made to such Indenture for the precise terms of this
Guarantee. The terms of Article 11 of the Indenture are
incorporated herein by reference. This Guarantee is subject to
release as and to the extent provided in Section 11.05 of the
Indenture.
This is a continuing Guarantee and shall remain in full
force and effect and shall be binding upon each Guarantor and its
respective successors and assigns to the extent set forth in the
Indenture until full and final payment of all of the Company's
Obligations under the Notes and the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights
by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms
and conditions hereof. This is a Guarantee of payment and not a
guarantee of collection.
Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the Obligations
contained in the Notes and the Indenture.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon
which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its
authorized officers.
This Guarantee is subordinated in right of payment to
the extent set forth in the Indenture.
For purposes hereof, each Guarantor's liability shall
be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and the Indenture and
(ii) the maximum amount that will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable law of any relevant
jurisdiction.
Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
Dated:
BLOUNT INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: Blount, Inc. as Member of BI, L.L.C.
By:___________________________________
Name:
Title:
By: BI Holdings Corp. as Member of
BI, L.L.C.
By:___________________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:___________________________________
Name:
Title:
FREDERICK MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of ______________, ______ among Blount, Inc., a Delaware
corporation (the "Company"), Blount International, Inc., a
Delaware corporation ("Blount International"), and BI Holdings
Corp., a Delaware corporation, Benjamin F. Shaw Company, a
Delaware corporation, BI, L.L.C., a Delaware limited liability
company, Blount Development Corp., a Delaware corporation, Omark
Properties, Inc., an Oregon corporation, 4520 Corp., Inc., a
Delaware corporation, Gear Products, Inc., an Oklahoma
corporation, Dixon Industries, Inc., a Kansas corporation,
Frederick Manufacturing Corporation, a Delaware corporation,
Federal Cartridge Company, a Minnesota corporation, Simmons
Outdoor Corporation, a Delaware corporation, Mocenplaza
Development Corp., a Delaware corporation and CTR Manufacturing,
Inc., a North Carolina corporation (collectively, the
"Guarantors") and United States Trust Company of New York, a bank
and trust company organized under the New York Banking Law, as
trustee under the indenture referred to below (the "Trustee").
Capitalized terms used herein and not defined herein shall have
the meaning ascribed to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore
executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of August 19, 1999, providing for the
issuance of an aggregate principal amount of $450,000,000 of 13%
Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, Section 4.13 and Article 10 of the Indenture
provides that under certain circumstances Blount International or
the Company may or must cause certain of its Subsidiaries to
execute and deliver to the Trustee a supplemental indenture
pursuant to which such respective Subsidiaries shall
unconditionally guarantee all of Blount International's and the
Company's Obligations under the Notes pursuant to a Guarantee on
the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which
is hereby acknowledged, Blount International, the Company, the
New Guarantor and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definition shall have the meanings assigned to them in
the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby
agrees, jointly and severally with all other Guarantors, to
guarantee the Company's Obligations under the Notes and the
Indenture on the terms and subject to the conditions set forth in
Article 11 of the Indenture and to be bound by all other
applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator, partner,
member, shareholder or agent of any Guarantor, as such, shall
have any liability for any obligations of the Company or any
Guarantor under the Notes, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of
the Notes.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE.
5. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same
agreement.
6. EFFECT OF HEADINGS. The Section headings herein
are for convenience only and shall not affect the construction
hereof.
7. THE TRUSTEE. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect
of the correctness of the recitals of fact contained herein, all
of which recitals are made solely by the New Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as
of the date first above written.
Dated: [GUARANTEEING SUBSIDIARY]
By:___________________________________
Name:
Title:
BLOUNT, INC.
By:___________________________________
Name:
Title:
BLOUNT INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: Blount Inc. as Member of BI, L.L.C.
By:___________________________
Name:
Title:
By: BI Holdings Corp. as
Member of BI, L.L.C.
By:___________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:___________________________________
Name:
Title:
FREDERICK MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
Dated: ______________, ______ UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT 4.2
EXECUTION
COPY
Exchange and Registration Rights Agreement
Dated as of August 19, 1999
by and among
Blount, Inc.,
The Guarantors listed on the Signature Pages Hereto
and
Lehman Brothers Inc.
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this
"Agreement") is made and entered into as of August 19, 1999 by
and among Blount, Inc., a Delaware corporation (the "Company")
and Blount International, Inc., a Delaware Corporation ("Blount
International"), BI Holdings Corp., a Delaware corporation,
Benjamin F. Shaw Company, a Delaware corporation, BI, L.L.C., a
Delaware limited liability company, Blount Development Corp., a
Delaware corporation, Omark Properties, Inc., an Oregon
corporation, 4520 Corp., Inc., a Delaware corporation, Gear
Products, Inc., an Oklahoma corporation, Dixon Industries, Inc.,
a Kansas corporation, Frederick Manufacturing Corporation, a
Delaware corporation, Federal Cartridge Company, a Minnesota
corporation, Simmons Outdoor Corporation, a Delaware corporation,
Mocenplaza Development Corp., a Delaware corporation and CTR
Manufacturing, Inc., a North Carolina corporation (collectively,
the "Existing Guarantors"), and Lehman Brothers Inc. (the
"Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated August 16, 1999 (the "Purchase Agreement"), by and among
the Company, the Existing Guarantors and the Initial Purchaser,
which provides for the sale by the Company to the Initial
Purchaser of $325,000,000 aggregate principal amount of the
Company's 13% Senior Subordinated Notes due 2009 (the "Notes").
The Notes are, and the Exchange Notes (as defined herein) will
be, guaranteed on a senior subordinated basis by the Guarantors
(as defined herein). In order to induce the Initial Purchaser to
purchase the Notes, the Company and the Existing Guarantors have
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth
in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Guarantor: Any subsidiary of Blount International
or the Company that executes a Guarantee under the Indenture
after the date of this Agreement.
Advice: As defined in Section 6 hereof.
Blackout Period: As defined in Section 5(a) hereof.
Blue Sky Application: As defined in Section 8(a) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Broker-Dealer Transfer Restricted Securities: Exchange Notes
(including the Guarantees) that are acquired by a Restricted
Broker-Dealer for its own account as a result of market-making
activities or other trading activities.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of
the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less
than the minimum period required pursuant to Section 3(b) hereof,
and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal
amount as the aggregate principal amount of Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Notes: The Company's 13% Senior Subordinated Notes
due 2009 to be issued pursuant to the Indenture in the Exchange
Offer, together with the related Guarantees.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Notes pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer
Restricted Securities validly tendered in such exchange offer by
such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Notes to (i) certain "qualified
institutional buyers," as such term is defined in Rule 144A under
the Securities Act, and (ii) outside the United States to Persons
other than U.S. Persons in offshore transactions meeting the
requirements of Rule 904 of Regulation S under the Securities
Act.
Guarantee: The Guarantee by a Guarantor of the Company's
obligations under the Notes, the Exchange Notes and the
Indenture.
Guarantors: The Additional Guarantors and the Existing
Guarantors.
Holders: As defined in Sections 2(b) and 2(c) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of the date hereof,
among the Company, the Existing Guarantors and United States
Trust Company of New York, as trustee (the "Trustee"), pursuant
to which the Notes and the Exchange Notes are to be issued, as
such Indenture may be amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Notes.
Market-Maker Prospectus: As defined in Section 4(c) hereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited
liability company, unincorporated organization, association,
joint-stock company, trust, joint venture, government or any
agency or political subdivision thereof or any other entity.
Prospectus: The prospectus included in a Registration
Statement including, without limitation, a Market-Maker
Prospectus, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date
relating to Notes, each Person who is a Holder of Notes on the
record date with respect to the Interest Payment Date on which
such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any Registration Statement of the
Company relating to (a) an offering of Exchange Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this
Agreement including the registration for resale of Broker-Dealer
Transfer Restricted Securities, in each case including the
Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer that is an
affiliate of the Company that holds Broker-Dealer Transfer
Restricted Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note (including the
Guarantees), until the earliest to occur of (a) the date on which
such Note is exchanged by a person other than a Broker-Dealer in
the Exchange Offer in exchange for an Exchange Note that can be
resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Securities Act, (b)
the date on which such Note has been effectively registered under
the Securities Act and disposed of in accordance with a Shelf
Registration Statement and (c) the date on which such Note is
sold by the Holder pursuant to Rule 144 under the Securities Act,
may be sold by the Holder pursuant to Rule 144(k) under the
Securities Act or is sold by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus
contained therein).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities
and Broker-Dealer Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities.
(c) Holders of Broker-Dealer Transfer Restricted
Securities. A Restricted Broker-Dealer is deemed to be a holder
of Broker-Dealer Transfer Restricted Securities (each, a
"Holder") whenever such Restricted Broker-Dealer owns Broker-
Dealer Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Company and the Guarantors shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in
no event later than 120 days after the Closing Date, a
Registration Statement under the Securities Act relating to the
Exchange Notes and the Exchange Offer, (ii) their best efforts to
cause such Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after
the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement
to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting
registration of the Exchange Notes to be offered in exchange for
the Transfer Restricted Securities and to permit resales of Notes
and Exchange Notes held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange
Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable Federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
business days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable Federal and state
securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement.
The Company and the Guarantors shall use their best efforts to
cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement
has become effective, but in any event within 30 business days
thereafter or longer if required by applicable Federal and state
securities laws.
(c) The Company and the Guarantors shall indicate in a
"Plan of Distribution" section of the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who
holds Notes that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may
exchange such Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a
Prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by
such Broker-Dealer in the Exchange Offer, which Prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in
order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose
the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission.
The Company and the Guarantors shall use their best efforts
to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions
of Section 6(d) below to the extent necessary to ensure that it
is available for resales of Notes and Exchange Notes acquired by
Broker-Dealers for their own accounts as a result of market-
making activities or other trading activities, and to ensure that
it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180
days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company and the Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180 day period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION; MARKET-MAKER PROSPECTUS
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer
Registration Statement or to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a)
below have been complied with) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company prior to the 20th
day following the Consummation of the Exchange Offer that such
Holder (A) is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) may not resell
the Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C)
is a Broker-Dealer and holds Notes acquired directly from the
Company or one of its affiliates, then the Company and the
Guarantors shall
(x) cause to be filed a Registration Statement pursuant
to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 30th day after the
date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement, or
permitted to Consummate the Exchange Offer and (2) the 30th
day after the date on which the Company receives notice from
a Holder of Transfer Restricted Securities as contemplated
by clause (ii) of paragraph (a) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf
Registration Statement to be declared effective by the
Commission on or before the 150th day after the Shelf Filing
Deadline.
The Company and the Guarantors shall use their best efforts to
keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of
Sections 6(b) and (d) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years following
the Closing Date or such shorter period that will terminate when
all Notes covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or become
eligible for resale pursuant to Rule 144 without volume or other
restrictions.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 10 business days after receipt
of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Additional Interest pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the
information previously furnished to the Company by such Holder
not materially misleading.
(c) Market-Maker Prospectus. The Company and the
Guarantors acknowledge that any Restricted Broker-Dealer holding
Broker-Dealer Transfer Restricted Securities may not resell such
Broker-Dealer Transfer Restricted Securities without delivering a
Prospectus. Consequently, on the date that the Exchange Offer
Registration Statement is filed with the Commission, the Company
and the Guarantors shall file a Registration Statement (which may
be the Exchange Offer Registration Statement or the Shelf
Registration Statement if permitted by the rules and regulations
of the Commission) and shall use their best efforts to cause such
Registration Statement to be declared effective by the Commission
on or prior to the Consummation of the Exchange Offer. The
Company and the Guarantors shall use their best efforts to keep
such Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(c) and
(d) hereof to the extent necessary to ensure that it is available
for resales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, until such time as all Restricted Broker-
Dealers determine in their judgment that they are no longer
required to deliver a Prospectus in connection with sales of
Broker-Dealer Transfer Restricted Securities. The Prospectus
included in such Registration Statement is referred to in this
Agreement as a "Market-Maker Prospectus."
SECTION 5. ADDITIONAL INTEREST
(a) If (i) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to
the date specified for such filing in Sections 3(a), 4(a) and
4(c), as applicable, (ii) any of such required Registration
Statements has not been declared effective by the Commission on
or prior to the date specified for such effectiveness in Sections
3(a), 4(a) and 4(c), as applicable, (the "Effectiveness Target
Date"), (iii) the Exchange Offer has not been Consummated within
30 business days after the Effectiveness Target Date, or longer
if required by applicable Federal and state securities laws,
with respect to the Exchange Offer Registration Statement or (iv)
any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective
or fail to be usable for in connection with resales of Transfer
Restricted Securities without being succeeded immediately by a
post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared
effective (except as permitted in paragraph (b); such period of
time during which any such Registration Statement is not
effective or any such Registration Statement or the related
Prospectus is not usable being referred to as a "Blackout
Period") (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Company and the Guarantors
jointly and severally agree to pay additional interest
("Additional Interest") to each Holder of Transfer Restricted
Securities adversely affected by such Registration Default with
respect to the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof
that the Registration Default continues. The amount of
Additional Interest shall increase by an additional $.05 per week
per $1,000 in principal amount of Transfer Restricted Securities
with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
Additional Interest of $.50 per week per $1,000 principal amount
of Transfer Restricted Securities. All accrued Additional
Interest shall be paid to Record Holders by the Company and the
Guarantors by wire transfer of immediately available funds or by
Federal funds check on each Damages Payment Date, as provided in
the Indenture. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the
accrual of Additional Interest with respect to such Transfer
Restricted Securities will cease.
(b) A Registration Default referred to in Section 5(a)(iv)
shall be deemed not to have occurred and be continuing in
relation to a Registration Statement or the related Prospectus if
(i) the Blackout Period has occurred solely as a result of (x)
the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (y) the
occurrence of other material events with respect to the Company
that would need to be described in such Registration Statement
or the related Prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or
supplement (including by way of filing documents under the
Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the
related Prospectus to describe such events; provided, however,
that in any case if such Blackout Period occurs for a continuous
period in excess of 30 days, a Registration Default shall be
deemed to have occurred on the 31st day of such Blackout Period
and Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs
until such Registration Default is cured or until the Company is
no longer required pursuant to this Agreement to keep such
Registration Statement effective or such Registration Statement
or the related Prospectus usable; provided, further, however,
that in no event shall the total of all Blackout Periods exceed
60 days in the aggregate of any 12 month period.
All payment obligations of the Company and the Guarantors
set forth in this Section that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such
time as all such payment obligations with respect to such
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall
comply with all of the provisions of Section 6(d) below, shall
use their best efforts to effect such exchange to permit the sale
of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall
comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company and the Guarantors there is a question as to whether
the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action
letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Notes. The Company and the
Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect
a change of Commission policy. The Company and the
Guarantors hereby agree however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to the
Company and the Guarantors setting forth the legal bases, if
any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue
a resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation
thereof, a written representation to the Company and the
Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with
any Person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company's and the Guarantors' preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters,
and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective Registration Statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Notes acquired
by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June
5, 1991) and (B) including a representation that neither the
Company nor any Guarantor has entered into any arrangement
or understanding with any Person to distribute the Exchange
Notes to be received in the Exchange Offer and that, to the
best of the Company's and each Guarantor's information and
belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Guarantors
shall comply with all the provisions of Section 6(d) below and
shall use their best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company and the Guarantors will
as expeditiously as possible prepare and file with the Commission
a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof.
(c) Market-Maker Prospectus. In connection with any
Registration Statement filed pursuant to Section 4(c) of this
Agreement, the Company and the Guarantors will comply with all of
the provisions of Section 6(d) below (other than sub-sections
(xiii), (xvi), (xviii) and (xxi)) until such time as all
Restricted Broker-Dealers determine in their judgment that they
are no longer required to deliver Market-Maker Prospectuses in
connection with sales of Broker-Dealer Transfer Restricted
Securities. The Company and the Guarantors shall use their best
efforts to deliver Market-Maker Prospectuses to all Restricted
Broker-Dealers immediately upon the effectiveness of the
Registration Statement and from time to time thereafter upon
request, in such quantities as such Restricted Broker-Dealer
shall require.
(d) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales
of Notes and Exchange Notes by Broker-Dealers) and Broker-Dealer
Transfer Restricted Securities, the Company and the Guarantors
shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements (including, if required by the
Securities Act or any regulation thereunder, financial
statements of any Guarantors) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use
their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter. Notwithstanding the
foregoing, at any time after Consummation of the Exchange
Offer, the Company and the Guarantors may allow the Shelf
Registration Statement or Market-Maker Prospectus and the
related Registration Statement to cease to become effective
and usable if (x) the board of directors of the Company
determines in good faith that it is in the best interests of
the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate
transaction involving the Company or the Guarantors, and the
Company notifies the Holders within two business days after
the board of directors makes such determination, or (y) the
Prospectus contained in the Shelf Registration Statement or
the Market-Maker Prospectus, as the case may be, contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they
were made, not misleading; provided that the two-year period
referred to in Section 4(a) hereof during which the Shelf
Registration Statement is required to be effective and
usable shall be extended by the number of days during which
such Registration Statement was not effective or usable
pursuant to the foregoing provisions;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable; cause the Prospectus
to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with
the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and
selling Holders of Transfer Restricted Securities and,
following the Consummation of the Exchange Offer, Holders of
Broker-Dealer Transfer Restricted Securities, promptly and,
if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-
effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable,
for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D)
of the existence of any fact or the happening of any event
that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order that
the Registration Statement and the Prospectus do not contain
an untrue statement of a material fact or omit to state a
material fact necessary to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission
or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification
of the Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, under state
securities or Blue Sky laws, the Company and the Guarantors
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) if requested in writing, furnish to each of the
selling Holders of Transfer Restricted Securities or Holders
of Broker-Dealer Transfer Restricted Securities and each of
the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will
be subject to the review of such Holders and underwriter(s),
if any, for a period of at least five business days, and the
Company and the Guarantors will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) if
a selling Holder of Transfer Restricted Securities or a
Holder of Broker-Dealer Transfer Restricted Securities, as
applicable, covered by such Registration Statement or the
underwriter(s), if any, shall not have had an opportunity to
participate in the preparation thereof;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders or the Holders of Broker-Dealer Transfer
Restricted Securities, as applicable, and to the
underwriter(s), if any, make the Company's and the
Guarantors' representatives available for discussion of such
document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or the Holders of
Broker-Dealer Transfer Restricted Securities, as applicable,
or underwriter(s), if any, reasonably may request;
(vi) make available for inspection at reasonable times
at the Company's principal place of business by the Holders
of Transfer Restricted Securities, any underwriter
participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the
underwriter(s) who shall certify to the Company and the
Guarantors that they have a current intention to sell
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities pursuant to a Shelf Registration
Statement or Market-Maker Prospectus, and, following the
Consummation of the Exchange Offer, the Holders of Broker-
Dealer Transfer Restricted Securities, such relevant
financial and other records, pertinent corporate documents
and properties of the Company and the Guarantors as
reasonably requested and cause the Company's and the
Guarantors' officers, directors and employees to respond to
such inquiries as shall be reasonably necessary, in the
reasonable judgment of counsel to such Holders, to conduct a
reasonable investigation; provided, however, that the
foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchaser by Lehman
Brothers Inc. and on behalf of the selling Holders by one
counsel designated by and on behalf of such Holders as
described in Section 7 hereof and, provided further, that
each such party shall be required to maintain in confidence
and not disclose to any other Person any information or
records reasonably designated by the Company in writing as
being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or
(B) such Person shall be required so to disclose such
information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order,
and only after such Person shall have given the Company
prompt prior written notice of such requirement), or (C)
such information is required to be set forth in such
Registration Statement or the Prospectus included therein or
in an amendment to such Registration Statement or an
amendment or supplement to such Prospectus in order that
such Registration Statement, Prospectus, amendment or
supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements made therein not misleading;
(vii) if requested by any selling Holders of
Transfer Restricted Securities or Holders of Broker-Dealer
Transfer Restricted Securities, as applicable, or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, (including subject to
Section 4(b) hereof, the Shelf Registration Statement or
Prospectus); pursuant to a supplement or post-effective
amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, information with
respect to the principal amount of Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities,
as applicable, being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities, as applicable, to be
sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-
effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this
Section 6(d)(vii) that would, in the opinion of counsel for
the Company reasonably satisfactory to the Initial
Purchaser, violate applicable law;
(viii) furnish to each selling Holder of Transfer
Restricted Securities or Holder of Broker-Dealer Transfer
Restricted Securities, as applicable, and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if
any, and each Holder of Broker-Dealer Transfer Restricted
Securities, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use of
the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s),
if any, and each Holder of Broker-Dealer Transfer Restricted
Securities, in connection with the offering and the sale of
the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities, as applicable, covered by
the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities, as applicable, pursuant to
any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by the
Initial Purchaser or, in the case of registration for resale
of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, by any Holder or Holders of Transfer
Restricted Securities who hold at least 25% in aggregate
principal amount of such class of Transfer Restricted
Securities or, in the case of Broker-Dealer Transfer
Restricted Securities, by any Holder of Broker-Dealer
Transfer Restricted Securities; provided, that, the Company
and the Guarantors shall not be required to enter into any
such agreement more than once with respect to all of the
Transfer Restricted Securities and, in the case of a Shelf
Registration Statement, may delay entering into such
agreement if the Board of Directors of the Company
determines in good faith that it is in the best interests of
the Company and the Guarantors not to disclose the existence
of or facts surrounding any proposed or pending material
corporate transaction involving the Company and the
Guarantors; and whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, the Company and the Guarantors
shall:
(A) furnish to the Initial Purchaser, the Holders
of Transfer Restricted Securities who hold at least 25%
in aggregate principal amount of such class of Transfer
Restricted Securities (in the case of a Shelf
Registration Statement), each Holder of Broker-Dealer
Transfer Restricted Securities and each underwriter, if
any, in such substance and scope as they may request and
as are customarily made in connection with an offering of
debt securities pursuant to a Registration Statement (i)
upon the effective date of any Registration Statement
(and if such Registration Statement contemplates an
Underwritten Offering of Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as
applicable, upon the date of the closing under the
underwriting agreement related thereto) and (ii) upon the
filing of any amendment or supplement to any Registration
Statement or any other document that is incorporated in
any Registration Statement by reference and includes
financial data with respect to a fiscal quarter or year:
(1) a certificate, dated the date of
effectiveness of the applicable Registration Statement
signed by (y) the respective chief executive officer,
the respective President or any Vice President and (z)
the respective chief financial officer of the Company
and each of the Guarantors confirming, as of the date
thereof, the matters set forth in paragraph (o) of
Section 7 of the Purchase Agreement and such other
matters as such parties may reasonably request;
(2) an opinion, dated the date of effectiveness
of such Registration Statement, of counsel for the
Company covering the matters set forth in paragraphs
(d) and (e) of Section 7 of the Purchase Agreement and
such other matters as such parties may reasonably
request, and in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other representatives of
the Company, representatives of the independent public
accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel in
connection with the preparation of such Registration
Statement and the related Prospectus although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements in such
Registration Statement; and that such counsel advises
that, on the basis of the foregoing, such counsel's
work in connection with this work, did not disclose
information that gave such counsel reason to believe
that the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of
the Exchange Offer Registration Statement, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. Such counsel may state further
that such counsel assumes no responsibility for, and
has not independently verified, the accuracy,
completeness or fairness of the financial statements,
notes and schedules and other financial data included
or incorporated by reference in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as of the
date of Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration Statement,
as the case may be, from the Company's independent
accountants, in the customary form and covering matters
of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7 of the
Purchase Agreement;
(B) set forth in full or incorporated by reference
in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified
pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the Company
and the Guarantors pursuant to this clause (x), if any.
If at any time the representations and warranties of
the Company or the Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company or the
Guarantors shall so advise the Initial Purchaser and the
underwriters, if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in
writing.
(xi) prior to any public offering of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, cooperate with the selling
Holders of Transfer Restricted Securities, the Holders of
Broker-Dealer Transfer Restricted Securities, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, under the securities
or Blue Sky laws of such jurisdictions as the selling
Holders of Transfer Restricted Securities or Holders of
Broker-Dealer Transfer Restricted Securities or
underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities,
as applicable, covered by the Shelf Registration Statement
filed pursuant to Section 4 hereof; provided, however, that
the Company and the Guarantors shall not be obligated to
qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that
would subject it to general consent to service of process,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xii) shall issue, upon the request of any Holder
of Notes covered by the Shelf Registration Statement,
Exchange Notes, having an aggregate principal amount equal
to the aggregate principal amount of Notes surrendered to
the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in
the name of such Holder or in the name of the purchaser(s)
of such Exchange Notes, as the case may be; in return, the
Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xiii) cooperate with the selling Holders of
Transfer Restricted Securities and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two
business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xiv) use their best efforts to cause the Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, subject to the proviso contained in clause (xi)
above;
(xv) if any fact or event contemplated by clause
(d)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, the Prospectus will not contain
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD;
(xviii) otherwise use their best efforts to comply
with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes and Exchange Notes to effect such changes
to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and
execute, and use their best efforts to cause the Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xx) provide promptly to any Holder upon such Holder's
written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of
the Exchange Act; and
(xxi) cause each Additional Guarantor upon the
creation or acquisition by Blount International or the
Company of such Additional Guarantor, to execute a
counterpart to this Agreement in the form attached hereto as
Annex A and to deliver such counterpart, together with an
opinion of counsel as to the enforceability thereof against
such entity, to the Initial Purchaser no later than five
business days following the execution thereof.
(e) Each Holder agrees by acquisition of a Transfer
Restricted Security or Broker-Dealer Transfer Restricted
Securities, as applicable, that, upon receipt of any notice from
the Company of the existence of any fact of the kind described in
Section 6(d)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated
by Section 6(d)(xv) hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 6(d)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(d)(xv) hereof or shall have received
the Advice.
(f) The Company and the Guarantors may require each Holder
of Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities as to which any registration is being
effected to furnish to the Company such information regarding
such Holder and such Holder's intended method of distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities as the Company may from time to
time reasonably request in writing, but only to the extent that
such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as
promptly as practicable of (i) any inaccuracy or change in
information previously furnished by such Holder to the Company or
(ii) the occurrence of any event, in either case, as a result of
which any Prospectus relating to such registration contains or
would contain an untrue statement of a material fact regarding
such Holder or such Holder's intended method of distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities or omits to state any material
fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities required to be
stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading and promptly to furnish to the Company any additional
information required to correct and update any previously
furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will
be borne by the Company regardless of whether a Registration
Statement becomes effective, including without limitation:
(i) all Commission, securities exchange or NASD registration and
filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees
and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with Federal
securities and state Blue Sky or securities laws and compliance
with the rules of the NASD (including reasonable fees and
disbursements of one counsel for Holders in connection with Blue
Sky and/or NASD qualification of the Exchange Notes); (iii) all
expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services; (iv) all fees and
disbursements of counsel for the Company and the Guarantors; (v)
all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance); and (vi) the reasonable fees and disbursements of
one firm of counsel designated by the Holders of a majority in
principal amount of Transfer Restricted Securities covered by the
Registration Statement to act as counsel for the Holders of those
Transfer Restricted Securities in connection therewith.
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees
and expenses of any Person, including special experts, retained
by the Company or the Guarantors.
(b) Each Holder of Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities, as applicable, will pay
all underwriting discounts, if any, and commissions and transfer
taxes, if any, relating to the disposition of such Holder's
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors shall, jointly and
severally, indemnify and hold harmless each Holder of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, its officers and employees and each Person, if any,
who controls any such Holders, within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases, sales and registration
of Notes and Exchange Notes), to which that Holder, officer,
employee or controlling Person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained (A) in any Registration Statement or preliminary
Prospectus or Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document
prepared or executed by the Company or any Guarantor (or based
upon any written information furnished by the Company or any
Guarantor) specifically for the purpose of qualifying any or all
of the Notes under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"); or (ii) the
omission or alleged omission to state in any Registration
Statement or Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; and shall reimburse each Holder and each
such officer, employee or controlling Person promptly upon demand
for any legal or other expenses reasonably incurred by that
Holder, officer, employee or controlling Person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and
the Guarantors shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any
Registration Statement or Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and
in conformity with written information concerning such Holder
furnished to the Company by or on behalf of any Holder
specifically for inclusion therein; provided, further that with
respect to any such untrue statement or omission made in any
preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not enure to the benefit of the Holder from
whom the Person asserting any such losses, claims, damages or
liabilities purchased the Notes or Exchange Notes concerned if,
to the extent that such sale was a sale by the Holder and any
such loss, claim, damage or liability of such Holder is a result
of the fact that both (A) a copy of the Prospectus (or the
Prospectus as then amended or supplemented) was not sent or given
to such Person at or prior to written confirmation of the sale of
such Notes or Exchange Notes to such Person and (B) the untrue
statement or omission in the preliminary Prospectus was corrected
in the Prospectus (or the Prospectus as then amended or
supplemented) unless such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 6(d)(ix)
hereof. The foregoing indemnity agreement is in addition to any
liability which the Company and the Guarantors may otherwise have
to any Holder or to any officer, employee or controlling Person
of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify
and hold harmless the Company, each of the Guarantors, their
respective directors, officers and employees, and each Person, if
any, who controls the Company or any of the Guarantors within the
meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Guarantors or any such
director, officer or controlling Person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact contained (A) in any Registration Statement, preliminary
Prospectus or Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission
or alleged omission to state in any Registration Statement,
preliminary Prospectus or Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Holders
furnished to the Company by or on behalf of that Holder
specifically for inclusion therein, and shall reimburse the
Company, each of the Guarantors and each such director, officer,
employee and controlling Person for any legal or other expenses
reasonably incurred by the Company, such Guarantor or each such
director, officer, employee or controlling Person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to
the Company, any of the Guarantors or any such director, officer,
employee or controlling Person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, any indemnified party shall
have the right to employ separate counsel in any such action and
to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel has been specifically
authorized by the indemnifying party in writing, or (ii) such
indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel
it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory
to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in
addition to one local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by
(i) Lehman Brothers Inc. if the indemnified parties under this
Section 8 consist of either Initial Purchaser or any of their
respective officers, employees or controlling Persons, or (ii) by
the Company, if the indemnified parties under this Section 8
consist of the Company, any of the Guarantors or any of their
respective directors, officers, employees or controlling Persons.
No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit
or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders on
the other, from the sale of the Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable, or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the
Guarantors, on the one hand and the Holders on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Company or any of the Guarantors, on
the one hand, or the Holders, on the other hand, the intent of
the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Holders agree that it would
not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by
any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the
amount by which the net proceeds received by it in connection
with its sale of Notes exceeds the amount of any damages which
such Holder has otherwise paid or become liable to pay by reason
of the untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 8(d) are several and not
joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each
Holder of Transfer Restricted Securities, during any period in
which the Company or such Guarantor is not subject to Section 13
or 15(d) of the Exchange Act within the two-year period following
the Closing Date, and each Holder of Broker-Dealer Transfer
Restricted Securities, for so long as any Broker-Dealer Transfer
Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities
or any Holder of Broker-Dealer Transfer Restricted Securities, in
connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act
in order to permit resales of such Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering at
such Holders' expense. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided, that
such investment bankers and managers must be reasonably
satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that
monetary damages (including Additional Interest ) would not be
adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor
any Guarantor will, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
Except as disclosed in the Final Offering Memorandum, neither the
Company nor any Guarantor has previously entered into any
agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the
Company's or any Guarantor's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Guarantors will not take any action, or permit any change to
occur, with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consent.
Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being
tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
Blount, Inc.
4520 Executive Park Drive
Montgomery, Alabama 36116-1602
Attention: Richard H. Irving, III
(Fax: 334-271-8177)
and John M. Panettiere
(Fax: 334-271-8177)
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Kris F. Heinzelman
(Fax: 212-474-3700)
Any such notices and communications shall take effect at the
time of receipt thereof. The Company shall be entitled to act
and rely upon any notice or communication given or made by the
Initial Purchaser.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders or Restricted
Broker-Dealers; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign
of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the
other Operative Documents (as defined in the Purchase Agreement)
is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement
of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the
registration rights granted by the Company and the Guarantors
with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
BLOUNT, INC.
By:________________________________
Name:
Title:
BLOUNT INTERNATIONAL, INC.
By:________________________________
Name:
Title:
BI HOLDINGS CORP.
By:________________________________
Name:
Title:
BENJAMIN F. SHAW COMPANY
By:________________________________
Name:
Title:
BI, L.L.C.
By: Blount, Inc. as Member
of BI, L.L.C.
By:___________________________
Name:
Title:
By: BI Holdings Corp. as
Member of BI, L.L.C.
By:___________________________
Name:
Title:
BLOUNT DEVELOPMENT CORP.
By:________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:________________________________
Name:
Title:
4520 CORP., INC.
By:________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:________________________________
Name:
Title:
DIXON INDUSTRIES, INC.
By:________________________________
Name:
Title:
FREDERICK MANUFACTURING CORPORATION
By:________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:________________________________
Name:
Title:
SIMMONS OUTDOOR CORPORATION
By:________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:________________________________
Name:
Title:
Accepted:
Lehman Brothers Inc.
By:________________________________
Name:
Title:
Annex A
Counterpart To Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and
irrevocably agrees (as a "Guarantor") to use its best efforts to
include its Guarantee in any Registration Statement required to
be filed by the Company and the Guarantors pursuant to the
Registration Rights Agreement, dated as of August 19, 1999 (the
"Registration Rights Agreement") by and among Blount, Inc., a
Delaware corporation, the guarantors named therein and Lehman
Brothers Inc.; to use its best efforts to cause such Registration
Statement to become effective as specified in the Registration
Rights Agreement; and to otherwise be bound by the terms and
provisions of the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Counterpart as of _________, [_____].
[NAME]
By:________________________________
Name:
Title:
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE PERIOD ENDED
SEPTEMBER 30, 1999, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> SEP-30-1999
<CASH> 30
<SECURITIES> 0
<RECEIVABLES> 186
<ALLOWANCES> 4
<INVENTORY> 124
<CURRENT-ASSETS> 378
<PP&E> 399
<DEPRECIATION> 225
<TOTAL-ASSETS> 736
<CURRENT-LIABILITIES> 145
<BONDS> 857
0
0
<COMMON> 0
<OTHER-SE> (326)
<TOTAL-LIABILITY-AND-EQUITY> 736
<SALES> 588
<TOTAL-REVENUES> 588
<CGS> 419
<TOTAL-COSTS> 419
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 20
<INCOME-PRETAX> (28)
<INCOME-TAX> (3)
<INCOME-CONTINUING> (25)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (25)
<EPS-BASIC> (0.37)
<EPS-DILUTED> (0.37)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED JUNE 30, 1999, AS SET FORTH IN ITS FORM 10-Q FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 38
<SECURITIES> 0
<RECEIVABLES> 162
<ALLOWANCES> 4
<INVENTORY> 131
<CURRENT-ASSETS> 355
<PP&E> 396
<DEPRECIATION> 221
<TOTAL-ASSETS> 689
<CURRENT-LIABILITIES> 99
<BONDS> 162
0
0
<COMMON> 0
<OTHER-SE> 367
<TOTAL-LIABILITY-AND-EQUITY> 689
<SALES> 368
<TOTAL-REVENUES> 368
<CGS> 263
<TOTAL-COSTS> 263
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7
<INCOME-PRETAX> 27
<INCOME-TAX> 10
<INCOME-CONTINUING> 18
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 18
<EPS-BASIC> 0.24<F1>
<EPS-DILUTED> 0.23<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED MARCH 31, 1999, AS SET FORTH IN ITS FORM 10-Q FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> MAR-31-1999
<CASH> 13,582
<SECURITIES> 0
<RECEIVABLES> 177,337
<ALLOWANCES> 4,050
<INVENTORY> 122,327
<CURRENT-ASSETS> 336,844
<PP&E> 392,722
<DEPRECIATION> 215,166
<TOTAL-ASSETS> 671,936
<CURRENT-LIABILITIES> 90,965
<BONDS> 161,650
0
0
<COMMON> 389
<OTHER-SE> 360,145
<TOTAL-LIABILITY-AND-EQUITY> 671,936
<SALES> 185,103
<TOTAL-REVENUES> 185,103
<CGS> 131,936
<TOTAL-COSTS> 131,936
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,510
<INCOME-PRETAX> 12,907
<INCOME-TAX> 4,064
<INCOME-CONTINUING> 8,843
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,843
<EPS-BASIC> 0.12<F1>
<EPS-DILUTED> 0.12<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED DECEMBER 31, 1998, AS SET FORTH IN ITS FORM 10-K FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 45
<SECURITIES> 0
<RECEIVABLES> 136
<ALLOWANCES> 4
<INVENTORY> 121
<CURRENT-ASSETS> 327
<PP&E> 393
<DEPRECIATION> 210
<TOTAL-ASSETS> 669
<CURRENT-LIABILITIES> 95
<BONDS> 162
0
0
<COMMON> 0
<OTHER-SE> 355
<TOTAL-LIABILITY-AND-EQUITY> 669
<SALES> 832
<TOTAL-REVENUES> 832
<CGS> 574
<TOTAL-COSTS> 574
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14
<INCOME-PRETAX> 102
<INCOME-TAX> 39
<INCOME-CONTINUING> 63
<DISCONTINUED> 0
<EXTRAORDINARY> (2)
<CHANGES> 0
<NET-INCOME> 61
<EPS-BASIC> 0.82<F1>
<EPS-DILUTED> 0.80<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED SEPTEMBER 30, 1998, AS SET FORTH IN ITS FORM 10-Q FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 9,574
<SECURITIES> 0
<RECEIVABLES> 168,182
<ALLOWANCES> 4,991
<INVENTORY> 127,923
<CURRENT-ASSETS> 329,619
<PP&E> 388,608
<DEPRECIATION> 204,240
<TOTAL-ASSETS> 667,365
<CURRENT-LIABILITIES> 112,244
<BONDS> 161,689
0
0
<COMMON> 389
<OTHER-SE> 341,344
<TOTAL-LIABILITY-AND-EQUITY> 667,365
<SALES> 631,471
<TOTAL-REVENUES> 631,471
<CGS> 437,151
<TOTAL-COSTS> 437,151
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10,759
<INCOME-PRETAX> 75,204
<INCOME-TAX> 28,542
<INCOME-CONTINUING> 46,662
<DISCONTINUED> 0
<EXTRAORDINARY> (1,984)
<CHANGES> 0
<NET-INCOME> 44,678
<EPS-BASIC> 0.60<F1>
<EPS-DILUTED> 0.58<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED JUNE 30, 1998, AS SET FORTH IN ITS FORM 10-Q FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 74,689
<SECURITIES> 0
<RECEIVABLES> 150,916
<ALLOWANCES> 4,647
<INVENTORY> 141,746
<CURRENT-ASSETS> 390,386
<PP&E> 384,500
<DEPRECIATION> 198,315
<TOTAL-ASSETS> 731,612
<CURRENT-LIABILITIES> 178,605
<BONDS> 162,023
0
0
<COMMON> 389
<OTHER-SE> 338,856
<TOTAL-LIABILITY-AND-EQUITY> 731,612
<SALES> 404,854
<TOTAL-REVENUES> 404,854
<CGS> 281,276
<TOTAL-COSTS> 281,276
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,724
<INCOME-PRETAX> 44,666
<INCOME-TAX> 17,196
<INCOME-CONTINUING> 27,470
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 27,470
<EPS-BASIC> 0.37<F1>
<EPS-DILUTED> 0.35<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED MARCH 31, 1998, AS SET FORTH IN ITS FORM 10-Q FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 4,314
<SECURITIES> 0
<RECEIVABLES> 161,414
<ALLOWANCES> 4,136
<INVENTORY> 140,556
<CURRENT-ASSETS> 329,837
<PP&E> 382,362
<DEPRECIATION> 194,223
<TOTAL-ASSETS> 664,899
<CURRENT-LIABILITIES> 144,098
<BONDS> 140,426
0
0
<COMMON> 389
<OTHER-SE> 328,144
<TOTAL-LIABILITY-AND-EQUITY> 664,899
<SALES> 199,734
<TOTAL-REVENUES> 199,734
<CGS> 139,229
<TOTAL-COSTS> 139,229
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,031
<INCOME-PRETAX> 22,287
<INCOME-TAX> 8,580
<INCOME-CONTINUING> 13,707
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 13,707
<EPS-BASIC> 0.18<F1>
<EPS-DILUTED> 0.18<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED DECEMBER 31, 1997, AS SET FORTH IN ITS FORM 10-K FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 5
<SECURITIES> 0
<RECEIVABLES> 139
<ALLOWANCES> 4
<INVENTORY> 133
<CURRENT-ASSETS> 301
<PP&E> 377
<DEPRECIATION> 188
<TOTAL-ASSETS> 638
<CURRENT-LIABILITIES> 130
<BONDS> 139
0
0
<COMMON> 0
<OTHER-SE> 316
<TOTAL-LIABILITY-AND-EQUITY> 638
<SALES> 717
<TOTAL-REVENUES> 717
<CGS> 483
<TOTAL-COSTS> 483
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 10
<INCOME-PRETAX> 94
<INCOME-TAX> 35
<INCOME-CONTINUING> 59
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 59
<EPS-BASIC> 0.79<F1>
<EPS-DILUTED> 0.77<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS RESTATED FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE FINANCIAL STATEMENTS OF BLOUNT INTERNATIONAL, INC. FOR THE
PERIOD ENDED DECEMBER 31, 1996, AS SET FORTH IN ITS FORM 10-K FOR SUCH PERIOD
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 10-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> MAR-1-1996
<PERIOD-END> DEC-31-1996
<CASH> 59
<SECURITIES> 0
<RECEIVABLES> 119
<ALLOWANCES> 3
<INVENTORY> 82
<CURRENT-ASSETS> 281
<PP&E> 302
<DEPRECIATION> 170
<TOTAL-ASSETS> 534
<CURRENT-LIABILITIES> 115
<BONDS> 85
0
0
<COMMON> 0
<OTHER-SE> 291
<TOTAL-LIABILITY-AND-EQUITY> 534
<SALES> 527
<TOTAL-REVENUES> 527
<CGS> 347
<TOTAL-COSTS> 347
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 8
<INCOME-PRETAX> 70
<INCOME-TAX> 26
<INCOME-CONTINUING> 44
<DISCONTINUED> 1
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 45
<EPS-BASIC> 0.59<F1>
<EPS-DILUTED> 0.58<F1>
<FN>
<F1> RESTATEMENT REFLECTED HEREIN IS THE RESULT OF THE PRORATION AND STOCK
ELECTION PROCEDURES RELATED TO THE AUGUST 19, 1999 MERGER AS DESCRIBED IN
NOTE 2 OF NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN
BLOUNT INTERNATIONAL, INC.'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1999.
</FN>
</TABLE>
