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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report: September 21, 1998
NEENAH FOUNDRY COMPANY
(Exact name of registrant as it appears in its charter)
Wisconsin 39-1580331
(State or other jurisdiction of (IRS Employer ID Number)
Incorporation or organization)
333-28751
(Commission File Number)
2121 Brooks Avenue, P.O. Box 729, Neenah, Wisconsin 54957
(Address of principal executive offices) (Zip Code)
(920) 725-7000
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 8, 1998, Neenah Foundry Company (the "Company") completed
its acquisition of Dalton Corporation, an Indiana corporation, and its
subsidiaries Dalton Corporation, Warsaw Manufacturing Facility, an Indiana
corporation, Dalton Corporation, Kendallville Manufacturing Facility, an Indiana
corporation, Dalton Corporation, Ashland Manufacturing Facility, an Ohio
corporation, and Dalton Corporation, Stryker Machining Facility Co., an Ohio
Corporation (collectively referred to herein as "Dalton"). Pursuant to the
transaction, the Company purchased 100% of the capital stock of Dalton
Corporation from the Dalton Corporation Employee Stock Ownership Plan & Trust
for aggregate consideration of $102.36 million in cash. The acquisition of
Dalton was financed through drawings under the Tranche A term loan facility, an
additional Tranche B term loan facility and a Multi-Draw Acquisition Revolver
under the Company's Amended and Restated Credit Agreement dated as of April 30,
1997, as amended as of September 12, 1997, as of April 3, 1998 and as of
September 8, 1998 by and among the Company, the Chase Manhattan Bank and other
Lenders party thereto (the "Credit Agreement"). The Credit Agreement was amended
in connection with the acquisition of Dalton to create an additional $70.0
million Tranche B term loan facility and a $50.0 million Multi-Draw Acquisition
Revolver in addition to the Company's existing $50.0 million revolving loan
facility and term loan facility.
Dalton manufactures and sells gray iron castings, primarily to the
refrigeration, air conditioning, automotive/truck and heavy equipment
industries. Dalton will operate as a wholly owned subsidiary of the Company out
of four facilities in Warsaw, Indiana, Kendalville, Indiana, Ashland, Ohio and
Stryker, Ohio and will continue to operate under its current management team.
As a consequence of this acquisition, the Company acquired certain real
property and leasehold interests described below as well as the related plant
and equipment assets of Dalton. In addition to the properties listed below,
Dalton currently leases nine (9) properties which are used for warehouse space,
sales offices, aircraft hangar space and concrete loading areas. The Company
currently has no plans to alter the existing usage of these properties.
LOCATION USE OWNED OR APPROXIMATE
LEASED AREA
1900 East Jefferson Street Manufacturing facilities, Owned 315,589 square
Warsaw, IN 46580 warehousing and office feet
space
1681 Orange Road Manufacturing facilities, Owned 83,681 square
Ashland, OH 44805 warehousing and office feet
space
200 West Ohio Street Manufacturing facilities, Owned 238,193 square
Kendalville, IN 46755 warehousing and office feet
space
310 Ellis Street Manufacturing, machining Owned 31,690 square
Stryker, OH 43557 and office space feet
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ITEM 5. OTHER EVENTS
On September 8, 1998, the Company acquired 100% of the capital stock of
Advanced Cast Products, Inc. a Delaware corporation ("ACP"), pursuant to a
capital contribution from its indirect parent, ACP Holding Company. In
connection with the transaction, the Company repaid certain outstanding
indebtedness of ACP through advances under Tranche A of the Company's Amended
and Restated Credit Agreement dated as of April 30, 1997, as amended as of
September 12, 1997 and April 3, 1998. ACP is a ductile iron foundry specializing
in iron castings for the railroad, automotive/truck and heavy equipment markets.
ACP operates out of 3 principal facilities in Meadville, Pennsylvania, Ironton,
Ohio and Easton, Massachusetts and will be operated as a wholly owned subsidiary
of the Company under the direction of the Company's management. Based on the
provisions of Regulation S-X Rule 3-05(b)(2) and the definition of "significant
subsidiary" contained in Rule 1-02(w), ACP is not deemed to be a significant
subsidiary.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(a) Financial Statements of Business Acquired.
Audited financial statements for Dalton are not
available at this time, and will be filed in an
amendment to this 8-K within 60 days of the date
hereof.
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(b) Pro Forma Financial Information
The pro forma financial information for the Company
and Dalton is not available at this time, and will be
filed in an amendment to the 8-K within 60 days of
the date hereof.
(c) Exhibits
2.1 Stock Purchase Agreement for the acquisition
of Dalton dated as of August 7, 1998 by and
among Neenah Foundry Company, Dalton
Corporation and the Dalton Corporation
Employee Stock Ownership Plan and Trust.
10.1 Credit Agreement dated as of April 30, 1997
as Amended and Restated as of September 12,
1997, as of April 3, 1998 and as of
September 8, 1998 by and among Neenah
Foundry Company, NFC Castings, Inc., the
Chase Manhattan Bank as Administrative
Agent, Chase Securities Inc. as Arranger and
the other Lenders from time to time party
thereto.
SIGNATURES
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 hereunto duly authorized.
NEENAH FOUNDRY COMPANY
September 21, 1998 By: /s/ Gary W. LaChey
-----------------------------------------
Name: Gary W. LaChey
Title: Vice President-Finance,
Secretary and Treasurer
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STOCK PURCHASE AGREEMENT
By and Among
DALTON CORPORATION
and
DALTON CORPORATION EMPLOYEE
STOCK OWNERSHIP PLAN AND TRUST
as Seller
and
NEENAH FOUNDRY COMPANY,
as Buyer
August 7, 1998
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TABLE OF CONTENTS
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1. DEFINITIONS; INTERPRETATION..............................................................................1
1.1 Definitions.....................................................................................1
1.2 Interpretation..................................................................................4
2. SALE AND TRANSFER OF SHARES; CLOSING.....................................................................5
2.1 Shares..........................................................................................5
2.2 Consideration for Shares........................................................................5
2.3 Purchase Price Adjustment.......................................................................5
2.4 Closing.........................................................................................7
2.5 Closing Obligations.............................................................................7
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLER.................................................8
3.1 Organization And Good Standing..................................................................8
3.2 Authority; No Conflict..........................................................................8
3.3 Capitalization..................................................................................9
3.4 Financial Statements............................................................................9
3.5 Books And Records..............................................................................10
3.6 Title to Assets; Sufficiency...................................................................10
3.7 Title To Properties; Encumbrances..............................................................10
3.8 No Undisclosed Liabilities.....................................................................11
3.9 Tax Matters....................................................................................11
3.10 No Material Adverse Change.....................................................................13
3.11 Contracts......................................................................................14
3.12 Employee Benefits..............................................................................15
3.13 Compliance With Legal Requirements.............................................................18
3.14 Litigation.....................................................................................18
3.15 Absence Of Certain Changes And Events..........................................................18
3.16 Insurance......................................................................................19
3.17 Labor and Employment Matters...................................................................20
3.18 Environmental, Health And Safety Matters.......................................................21
3.19 Intellectual Property..........................................................................22
3.20 Transaction With Affiliates....................................................................23
3.21 Funded Debt....................................................................................23
3.22 Due Inquiry....................................................................................23
3.23 Disclosure.....................................................................................23
3.24 Representations And Warranties Concerning The ESOP.............................................23
3.25 Brokers Or Finders.............................................................................24
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4. REPRESENTATIONS AND WARRANTIES OF BUYER.................................................................24
4.1 Organization And Good Standing.................................................................24
4.2 Authority; No Conflict.........................................................................24
4.3 Brokers Or Finders.............................................................................24
5. COVENANTS OF THE COMPANY, AND SELLER WITH RESPECT TO THE ESOP...........................................25
5.1 Access And Investigation.......................................................................25
5.2 Operation Of The Businesses Of The Acquired Companies..........................................25
5.3 Negative Covenant..............................................................................25
5.4 Notification...................................................................................25
5.5 Fairness Opinion...............................................................................26
5.6 Termination Of ESOP............................................................................26
5.7 Best Efforts...................................................................................26
5.8 Exclusivity....................................................................................26
5.9 S Corporation Status...........................................................................27
5.10 Disclosure Schedule............................................................................28
5.11 Tax Returns....................................................................................28
6. COVENANTS OF BUYER......................................................................................28
6.1 Approvals Of Governmental Bodies...............................................................28
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.....................................................28
7.1 Accuracy Of Representations....................................................................28
7.2 Performance....................................................................................29
7.3 Consents.......................................................................................29
7.4 Documents to be Delivered by Company...........................................................29
7.5 HSR Act Waiting Period.........................................................................30
7.6 No Injunction..................................................................................30
7.7 Real Property..................................................................................30
7.8 Participant Vote...............................................................................31
7.9 No Material Adverse Effect.....................................................................31
7.10 Absence of Litigation..........................................................................31
7.11 Management Arrangements........................................................................32
7.12 Financing......................................................................................32
7.13 Due Diligence..................................................................................32
7.14 All Proceedings To be Satisfactory.............................................................32
7.15 Sale of Ashland Facility.......................................................................32
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE....................................................32
8.1 Accuracy Of Representations....................................................................32
8.2 Performance....................................................................................32
8.3 Consents.......................................................................................32
8.4 Additional Documents...........................................................................33
8.5 Participant Vote...............................................................................33
8.6 No Injunction..................................................................................33
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8.7 Minimum Purchase Price.........................................................................33
9. TERMINATION.............................................................................................33
9.1 Termination Events.............................................................................33
9.2 Effect Of Termination..........................................................................34
10. NO INDEMNIFICATION......................................................................................34
11. POST-CLOSING COVENANTS..................................................................................35
11.1 Determination Letter...........................................................................35
11.2 Distribution Of Trust Assets...................................................................35
11.3 Valuation Report...............................................................................35
11.4 Existing Agreements............................................................................35
12. GENERAL PROVISIONS......................................................................................35
12.1 Expenses.......................................................................................35
12.2 Public Announcements...........................................................................35
12.3 Confidentiality................................................................................36
12.4 Notices........................................................................................36
12.5 Further Assurances.............................................................................37
12.6 Entire Agreement; Amendments and Notices.......................................................37
12.7 Assignments, Successors, And No Third-Party Rights.............................................38
12.8 Severability...................................................................................38
12.9 Section Headings, Construction.................................................................38
12.10 Time Of Essence................................................................................38
12.11 Choice of Law..................................................................................38
12.12 Specific Performance...........................................................................38
12.13 Waiver of Jury Trial...........................................................................39
12.14 Counterparts...................................................................................39
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Exhibits
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Exhibit 1.1 Sample Working Capital Statement
Exhibit 7.4(b) Form of Opinion of Dutton & Overman
Exhibit 7.4(c) Form of Opinion of Ludwig Goldberg & Krenzel
Exhibit 7.4(l) Form of Resignation and Release
Exhibit 8.4(c) Form of Opinion of Kirkland & Ellis
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated as of August 7,
1998, is made by Neenah Foundry Company, a Wisconsin corporation ("Buyer"), the
Dalton Corporation Employee Stock Ownership Plan and Trust ("ESOP" or "Seller")
and Dalton Corporation, an Indiana corporation ("Company"). Buyer, Seller and
the Company are referred to collectively herein as the "Parties".
RECITALS
Seller owns 2,371,342.8776 shares of common stock of the Company,
constituting all of the issued and outstanding capital stock of the Company.
Seller desires to sell, and Buyer desires to purchase, all of such issued and
outstanding shares ("Shares"), for the consideration and on the terms set forth
in this Agreement.
THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties contained herein, the Parties agree as follows:
1. DEFINITIONS; INTERPRETATION.
1.1 Definitions. For purposes of this Agreement, the following terms
have the meanings specified or referred to in this Section 1:
"Acquired Companies"--collectively, the Company and its wholly-owned
Subsidiaries: Dalton Corporation, Warsaw Manufacturing Facility; Dalton
Corporation, Kendallville Manufacturing Facility, Dalton Corporation, Ashland
Manufacturing Facility and Dalton Corporation, Stryker Machining Facility.
"Affiliated Group" means any affiliated group within the meaning of
Code Section 1504(a) or any similar group defined under a similar provision of
state, local or foreign law.
"Annex I"--exceptions to Buyer's representations and warranties,
delivered to Seller and the Company concurrently with the execution and delivery
of this Agreement.
"Applicable Contract"--any Contract (a) under which any Acquired
Company has or may acquire any rights, (b) under which any Acquired Company has
or may become subject to any obligation or liability, or (c) by which any
Acquired Company or any of the assets owned or used by it is or may become
bound.
"Ashland Facility"--Dalton Corporation, Ashland Manufacturing Facility,
located at 1681 Orange Street, Ashland, Ohio 44805.
"Balance Sheet"--as defined in Section 3.4.
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"Buyer"--as defined in the first paragraph of this Agreement.
"Code"--the Internal Revenue Code of 1986, as amended, or any successor
law, and regulations issued thereunder.
"Closing"--as defined in Section 2.3.
"Closing Date"--the date and time as of which the Closing actually
takes place.
"Company"--as defined in the first paragraph of this Agreement.
"Contemplated Transactions"--all of the transactions contemplated by
this Agreement,including:
(a) The sale of the Shares by Seller to Buyer;
(b) Buyer's delivery of the Purchase Price to Seller; and
(c) The performance by Buyer and Seller of their respective
covenants and obligations under this Agreement.
"Contract"--as defined in Section 3.11.
"Determination Date"--as defined in Section 2.3(a).
"Disclosure Schedule"--the disclosure letter delivered to Buyer by
Seller and the Company concurrently with the execution and delivery of this
Agreement.
"Environmental, Health, and Safety Liabilities"--any cost (including
response costs and corrective action costs), damages, expense, liability,
obligation, fees, or other responsibility arising from or under Environmental
Law or Occupational Safety and Health Law.
"Environmental Law"--all applicable laws of federal, state or local
governments, and agencies thereof, all judicial and administrative orders and
determinations, all contractual obligations and all common law concerning public
health and safety, and pollution or protection of the environment, including
without limitation all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, each as amended and as now or hereafter in
effect.
"ERISA"--the Employee Retirement Income Security Act of 1974, as
amended, or any successor law, and regulations and rules issued pursuant to that
Act or any successor law.
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"ESOP Fiduciary"--Consulting Fiduciaries, Inc., an Illinois
corporation.
"Financial Statements" has the meaning set forth in Section 3.4.
"Funded Debt"--without duplication, all obligations of any Acquired
Company under indebtedness for borrowed money (including, without limitation,
principal, interest, overdrafts, penalties, premiums, fees, expenses,
indemnities and breakage costs), all obligations of any Acquired Company under
capital leases, notes payable, guaranties and drafts accepted representing
extensions of credit.
"GAAP"--United States generally accepted accounting principles, applied
on a basis consistent with the basis on which the Balance Sheet and the other
financial statements referred to in Section 3.4 were prepared.
"HSR Act"--the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, or any successor law, and regulations and rules issued pursuant to that
Act or any successor law.
"IRS"--the United States Internal Revenue Service or any successor
agency.
"LIFO Reserves"--means any contra asset amounts recorded to report
inventory on a LIFO basis in the Balance Sheet, Most Recent Balance Sheet or
Proposed Closing Balance Sheet.
"Most Recent Balance Sheet"--as defined in Section 3.4.
"Most Recent Financial Statements"--as defined in Section 3.4.
"Occupational Safety and Health Law"--all applicable laws of federal,
state or local governments, and agencies thereof, designed to provide safe and
healthful working conditions and to reduce occupational safety and health
hazards.
"Ordinary Course of Business"--ordinary course of business consistent
with past custom and practice (including with respect to quantity and
frequency).
"Organizational Documents"--(a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of any person or other entity; and
(e) any amendment to any of the foregoing.
"Security Interest"--any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the
taxpayer is contesting in good faith through appropriate proceedings and for
which adequate reserves have been established on the Balance Sheet, (c) purchase
money liens and liens securing rental payments under capital lease arrangements,
and
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(d) other liens arising in the Ordinary Course of Business and not incurred in
connection with the borrowing of money.
"Seller"--as defined in the first paragraph of this Agreement.
"Shares"--as defined in the Recitals of this Agreement.
"Subsidiary"--means any Person whose securities having ordinary voting
power to elect a majority of its board of directors or managing or general
partners (or other persons having similar functions) or other ownership
interests (including partnership and membership interests) ordinarily
constituting a majority interest in the capital, profits or cash flow of such
Person, are at the time, directly or indirectly, owned or controlled by such
other Person, or by one or more other Subsidiaries of such other Person, or by
such other Person and one or more of its other Subsidiaries; when used in this
Agreement, "Subsidiary" means a Subsidiary of the Company.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Target Working Capital" shall mean $19,998,676.00
"Working Capital" means, as of the date of determination, an amount
equal to the consolidated current assets of the Company , less the consolidated
current liabilities of the Company, in each case determined in accordance with
GAAP, applied in a manner consistent with the preparation of the Financial
Statements and the accounting conventions set forth in Section 2.3(e); provided,
that (i) all amounts in respect of income Taxes or Taxes imposed pursuant to
Section 1374 of the Code (Tax Imposed on Certain Built-In Gains) shall be
excluded from the determination of current assets and current liabilities, (ii)
all amounts in respect of Funded Debt shall be excluded from the determination
of current assets and current liabilities, (iii) all amounts in respect of LIFO
Reserves shall be excluded from the determination of current assets, and (iv)
all amounts in respect of contributions made or to be made to the ESOP prior to
Closing shall be excluded from the determination of current liabilities in each
case, in accordance with Exhibit 1.1.
1.2 Interpretation. Unless otherwise indicated to the contrary herein
by the context or use thereof: (i) the words, "herein," "hereto," "hereof" and
words of similar import refer to this Agreement as a whole and not to any
particular Section or paragraph hereof; (ii) the word "including" means
"including, but not limited to"; (iii) masculine gender shall also include the
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feminine and neutral genders, and vice versa; and (iv) words importing the
singular shall also include the plural, and vice versa.
2. SALE AND TRANSFER OF SHARES; CLOSING.
2.1 Shares. Subject to the terms and conditions of this
Agreement, at the Closing, Seller will sell, convey, transfer and deliver the
Shares to Buyer, and, in reliance upon the representations, warranties and
covenants contained herein, Buyer will purchase the Shares from Seller.
2.2 Consideration for Shares. Upon the terms and subject to the
conditions contained herein, as consideration for the purchase of the Shares,
Buyer shall pay to Sellers, in the aggregate, an amount equal to the difference
of (x) $102,000,000.00 less (y) without duplication, the sum of (i) the greater
of the total amount of Funded Debt outstanding as of the close of business on
the Determination Date and the total amount of Funded Debt outstanding as of the
Closing, provided, that there shall be excluded from the determination of Funded
Debt as of the Closing any amount which represents an increase in Funded Debt
between the Determination Date and the Closing due to the payment of any
liability to the extent that the payment of such liability results in a
corresponding dollar-for-dollar decrease to a liability reflected on the Working
Capital Statement, plus, (ii) all fees and expenses of the Seller and the
Acquired Companies incurred in connection with the transactions contemplated by
this Agreement in accordance with Section 12.1 to the extent not paid prior to
the date hereof and reflected in the Most Recent Financial Statements, plus
(iii) all fees and expenses incurred by any Acquired Company in connection with
the sale or attempted sale of the Ashland Facility to the extent not paid prior
to the date hereof and reflected in the Most Recent Financial Statements, plus
(iv) all brokers fees and other expenses of any of the Acquired Companies or
Seller in connection with the Contemplated Transactions, to the extent not paid
prior to the date hereof and reflected in the Most Recent Financial Statements,
plus (v) the amount of any disallowed deduction or increased Tax liabilities of
any Acquired Company pursuant to Code Section 280G (the "Base Purchase Price")
subject to adjustment as provided in Section 2.3 hereof (as so adjusted, the
"Purchase Price"), payable in the manner specified in Section 2.5 below. Buyer
and the Company shall cooperate with one another to determine the Purchase Price
on and as of the Closing Date in accordance with the foregoing.
2.3 Purchase Price Adjustment.
(a) Proposed Closing Balance Sheet. The Company shall prepare
and deliver to Buyer a balance sheet (the "Proposed Closing Balance Sheet"), on
or before a date not more than ten (10) and not less than one (1) business day
prior to the Closing Date together with a statement of the Company's
determination of the Working Capital of the Company as at the close of business
on August 29, 1998, or in the event the Closing shall not have occurred on or
prior to September 4, 1998, as of the close of business on the Closing Date (the
date of such determination of Working Capital, the "Determination Date"), which
shall be reasonably acceptable to Buyer in form and substance (the "Working
Capital Statement"). The Proposed Closing Balance Sheet shall be prepared from
the books and records of the Company in
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accordance with the accounting principles set forth in subsection (d) below
taking into account the payments to be made by the Company at the Closing
(including any payments of expenses or Taxes in accordance with Section 12.1).
(b) Working Capital Adjustment. If the Final Closing Working
Capital (i) is less than the Target Working Capital, then the Purchase Price
payable at Closing shall be reduced dollar-for-dollar by the excess of the
Target Working Capital over the Final Closing Working Capital or (ii) is greater
than the Target Working Capital, then the Purchase Price payable at Closing
shall be increased dollar-for-dollar by the excess of the Final Closing Working
Capital over the Target Working Capital (the "Closing Date Adjustment").
(c) Preparation of Closing Balance Sheet; Dispute Resolution.
(i) During the preparation of the Proposed Closing Balance
Sheet and the Working Capital Statement and all activities in connection
therewith, Buyer will be entitled to designate a representative ("Buyer's
Accountant") to observe and comment on the preparation of the Proposed Closing
Balance Sheet and the Working Capital Statement and procedures relating
thereto. On or prior to the Closing Date Buyer may notify the Company of its
objections, if any (an "Objection Notice"), to the Proposed Closing Balance
Sheet and/or the determination of the Working Capital from the Working Capital
Statement. If the Buyer does not tender to the Company an Objection Notice on
or prior to the Closing Date, then the Proposed Closing Balance Sheet and the
determination of Working Capital from the Working Capital Statement will be
conclusive and binding upon the parties and the Working Capital of the Company
as of the Determination Date determined from the Working Capital Statement will
be deemed to be the Final Closing Working Capital for purposes of Section
2.3(b) above.
(ii) Dispute and Amicable Resolution. If the Buyer timely
gives an Objection Notice as described in subsection (i) above, then
the Company, the Seller and the Buyer will attempt amicably to resolve their
disputes as reflected in the Objection Notice, and any amount agreed to in
writing by the Company, the Seller and the Buyer as the Working Capital of the
Company as of the Determination Date, will be deemed to be the Final Closing
Working Capital for purposes of Section 2.3(b) above.
(iii) Resolution by Independent Accounting Firm. If the
Company, the Seller and the Buyer do not resolve all disputes as reflected
in the Objection Notice on or prior to the Closing Date, then the Company, the
Seller and the Buyer will retain a firm of certified public accountants that is
mutually acceptable to the Company, the Seller and the Buyer (if the Company,
the Seller and the Buyer are unable to agree on a mutually acceptable
accounting firm prior to the 15th day following delivery of the Objection
Notice, then such firm will be chosen randomly by lot from among the accounting
firms formerly constituting the "big six", other than the Company's accountant
and the Buyer's Accountant) (the "Independent Accounting Firm") to determine
the Working Capital of the Company as of the Determination Date, as soon as
practicable, and, in any event, within 30 days after the submission of any
dispute thereto, all in accordance with the standards and definitions set forth
herein and in subsection (d) below. The Working Capital, determined by the
Independent Accounting Firm (1) must be within the range
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of values established for such amount as determined by reference to the value
assigned to such amount by the Buyer's Accountant and the Company in the
Objection Notice and the Proposed Closing Balance Sheet, respectively, and,
assuming compliance with the preceding clause, (2) will be conclusive and
binding upon the Parties for purposes of Section 2.3(b) above. The fees and
expenses of the Independent Accounting Firm will be split equally between the
Buyer and the Company, and the portion thereof attributable to the Company shall
be considered an expense of the Company for purposes of Section 2.2 above.
(iv) "Final Closing Working Capital" means the Working
Capital as of the close of business on the Determination Date as finally
determined pursuant to clauses (i), (ii) and (iii) above.
(d) Accounting Conventions. Each accounting term used herein
shall have the meaning that is applied thereto in accordance with GAAP and each
account included in the Closing Date Balance Sheet shall be calculated in
accordance with GAAP and shall be consistent with the books and records of the
Company; provided, that all known arithmetic errors shall be taken into account
in the calculation of each account set forth above, regardless of their
materiality. With respect to the calculation of the levels of the accounts set
forth above, no change in accounting principles shall be made from those
utilized in preparing the Financial Statements, including, with respect to the
nature or classification of accounts, closing proceedings, levels of reserves or
levels of accruals other than as a result of objective changes in the underlying
business. For purposes of the preceding sentence, "changes in accounting
principles" includes all changes in accounting principles, policies, practices,
procedures or methodologies with respect to financial statements, their
classification or their display, as well as all changes in practices, methods,
conventions or assumptions utilized in making accounting estimates.
2.4 Closing. The purchase and sale (the "Closing") provided for in
this Agreement will take place at the offices of Buyer's counsel at 153 E. 53rd
St., New York, New York, at 10:00 a.m. (local time) on the later of (a)
September 4, 1998 or (b) three (3) business days after the satisfaction or
waiver of all conditions to Closing contained in Sections 7 and 8 below. Subject
to termination in accordance with provisions of Section 9 hereof, failure to
consummate the purchase and sale provided for in this Agreement on the date and
time and at the place determined pursuant to this Section 2.4 will not result in
the termination of this Agreement and will not relieve any party of any
obligation under this Agreement.
2.5 Closing Obligations. At the Closing, (a) Seller will deliver to
Buyer (i) certificates representing the Shares, duly endorsed (or accompanied by
duly executed stock powers) for transfer to Buyer free and clear of all liens,
charges, security interests, encumbrances and restrictions on transfer
whatsoever, and (ii) the documents referred to in Section 7.4; and (b) Buyer
will deliver to Seller (i) by wire transfer to an account designated by Seller
by notice to Buyer not less than five (5) business days prior to Closing,
immediately available funds in the aggregate in the amount of the Purchase Price
and (ii) the documents referred to in Section 8.4.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLER.
The Company and Seller with respect to the ESOP represent and warrant
to Buyer that the statements contained in this Section 3 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3), except as
set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained in
this Section 3.
3.1 Organization And Good Standing. Section 3.1 of the Disclosure
Schedule contains a complete and accurate list for each Acquired Company of its
name, its jurisdiction of incorporation, other jurisdictions in which it is
authorized to do business, its capitalization (including the identity of each
stockholder and the number of shares held by each) and its officers and
directors. Each Acquired Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to conduct its business
as it is now being conducted and to own or use the properties and assets that it
purports to own or use. Each Acquired Company is duly qualified to do business
as a foreign corporation and is in good standing under the laws of each state or
other jurisdiction in which either the ownership or use of the properties owned
or used by it, or the nature of the activities conducted by it, requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on its business, operations or financial condition or the
ownership of any of its assets. Seller has delivered to Buyer true and complete
copies of the Organizational Documents of each Acquired Company, as currently in
effect.
3.2 Authority; No Conflict.
(a) Each of the Company and Seller has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of each of the Company and Seller, enforceable in accordance with its terms.
(b) Except as set forth in Section 3.2(b) of the Disclosure
Schedule, neither the execution and delivery of this Agreement nor the
consummation or performance of the transactions contemplated by this Agreement
will, directly or indirectly (with or without notice or lapse of time): (i)
contravene, conflict with, or result in a violation of any provision of the
Organizational Documents of the Acquired Companies; (ii) contravene, conflict
with, or result in a violation of any order, writ, decree or injunction of any
court or governmental agency having jurisdiction over the Seller or any of the
Acquired Companies or any of their respective properties; (iii) contravene,
conflict with, or result in a violation or breach of any provision of, or give
any person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate, or modify,
any Applicable Contract; or (iv) result in the imposition or creation of any
lien, security interest or encumbrance upon or with respect to any of the assets
owned or used by any Acquired Company.
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(c) Except as set forth in Section 3.2(c) of the Disclosure
Schedule, neither Seller nor any Acquired Company is or will be required to give
any notice to, make any declaration, filing or registration with or obtain any
waiver, authorization, approval or consent from any person or other entity in
connection with the execution and delivery of this Agreement, the consummation
or performance of the Contemplated Transactions or the continuation of any
Acquired Company's rights under any Applicable Contract.
3.3 Capitalization. The authorized equity securities of the Company
consist of 8,750,000 shares of common stock without par value, of which
2,371,342.8776 shares are issued and outstanding and constitute the Shares.
Seller is and will be on the Closing Date the record owner and holder of the
Shares, free and clear of all encumbrances. The Company is the owner of record
and beneficially of all the outstanding equity securities of each other Acquired
Company, free and clear of all encumbrances. All of the outstanding equity
securities of each Acquired Company have been duly authorized and validly issued
and are fully paid and nonassessable. All of the issued and outstanding Shares
have been duly authorized, are validly issued, fully paid, and nonassessable,
and are held beneficially and of record by Seller free and clear of all Taxes,
liens, claims, charges, pledges, encumbrances, options, warrants, purchase
rights, contracts, commitments, equities, claims, demands and restrictions
whatsoever. No shares of the capital stock of any Acquired Company are reserved
for issuance. There are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
commitments that could require any Acquired Company to issue, sell, or otherwise
cause to become outstanding any of its or any other Acquired Company's capital
stock, nor any stock appreciation rights, phantom stock, or similar rights or
instruments. There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of any capital stock of any Subsidiary
of the Company. All of the shares of capital stock of each Subsidiary have been
duly authorized and are validly issued, fully paid, and nonassessable. The
Company owns all of the issued and outstanding shares of capital stock in each
of its Subsidiaries free and clear of any restrictions on transfer, Taxes,
liens, claims, charges, pledges, encumbrances, options, warrants, purchase
rights, contracts, commitments, equities, and demands and restrictions
whatsoever. There are no outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require any of the Company or its
Subsidiaries to sell, transfer, or otherwise dispose of any capital stock of any
of its Subsidiaries or that could require any Subsidiary of the Company to
issue, sell, or otherwise cause to become outstanding any of its own capital
stock, nor any stock appreciation rights, phantom stock, or similar rights or
instruments.
3.4 Financial Statements. The Company has delivered to Buyer (a)
audited, consolidated balance sheets of the Acquired Companies as at January 3,
1998 (the "Balance Sheet"), December 28, 1996 and December 30, 1995 and the
related audited, consolidated statements of income, stockholders' equity and
cash flow for the fiscal year then ended (collectively, the "Financial
Statements"), together with the report thereon of Price Waterhouse LLP with
respect to the 1995 and 1996 fiscal years and of Price Waterhouse Coopers LLP,
with respect to the 1997 fiscal year, in each case as the Company's independent
certified public accountants, and (b) an unaudited, consolidated and
consolidating balance sheet of the Acquired Companies as at June 30, 1998 (the
"Most Recent Balance Sheet") and the related unaudited,
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consolidated statements of income, shareholders' equity and cash flow for the 6
months then ended (the "Most Recent Financial Statements"). The Financial
Statements (including the notes thereto) have been prepared from the books and
records of the Company, are correct and complete, have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby and present fairly the transactions, assets and liabilities of
the Acquired Companies as of such dates and the financial condition of the
Acquired Companies as of such dates and the results of operations of the
Acquired Companies for such periods; provided, however, that the Most Recent
Financial Statements are subject to normal year-end adjustments (which will not
be material individually or in the aggregate) and lack footnotes and other
presentation items.
3.5 Books And Records. The books of account, minute books, stock
record books, and other records of the Acquired Companies, all of which have
been made available to Buyer, are complete and correct and have been maintained
in accordance with sound business practices. The stock records of the Acquired
Companies fairly and accurately reflect in all respects the record ownership of
all of the outstanding Shares of capital stock of the Acquired Companies.
3.6 Title to Assets; Sufficiency. Except as set forth in Section
3.6 of the Disclosure Schedule, the Acquired Companies have good and
marketable title to, or a valid leasehold interest in, the properties and
assets used by them or otherwise necessary to conduct their business, located
on their premises, or shown on the Most Recent Balance Sheet or acquired after
the date thereof, free and clear of all Security Interests, except for
properties and assets disposed of in the Ordinary Course of Business since the
date of the Most Recent Balance Sheet. The assets currently owned by the
Acquired Companies, or leased by any Acquired Company pursuant to any valid and
enforceable lease agreement entered into in the Ordinary Course of Business or
otherwise disclosed to Buyer constitute all of the assets necessary to conduct
the business of the Company and its Subsidiaries in accordance with past
practices as of the most recent fiscal month end and as of the date hereof.
3.7 Title To Properties; Encumbrances.
(a) Section 3.7(a) of the Disclosure Schedule sets forth the
address and legal description of each parcel of real property owned by an
Acquired Company (the "Owned Real Property"). The applicable Acquired Company
has good and marketable title in and to all of the Owned Real Property subject
to no liens, encroachments, encumbrances or other defects in title
(collectively, "Liens"), except as described on such Section of the Disclosure
Schedule.
(b) Section 3.7(b) of the Disclosure Schedule sets forth a
list of all leases, subleases and other occupancy agreements, including all
amendments, extensions and other modifications (the "Leases") for real property
(the "Leased Real Property"; the Owned Real Property and the Leased Real
Property, collectively, the "Real Property") to which any Acquired Company is a
"tenant", "subtenant"or other lessee party. The applicable Acquired Company has
a good and valid leasehold interest in and to all of the Leased Real Property,
subject to no Liens except as described in such Section of the Disclosure
Schedule. Each Lease is in full force and effect and is enforceable in
accordance with its terms. There exists no default or condition
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which, with the giving of notice, the passage of time or both, could become a
default under any Lease.
(c) The Real Property constitutes all of the real property owned,
leased, occupied or otherwise utilized in connection with the business of the
Acquired Companies. Other than the Acquired Companies, there are no parties in
possession or parties having any current or future right to occupy any of the
Real Property. The Real Property is in good condition and repair and is
sufficient and appropriate for the conduct of the business of the Acquired
Companies. The Real Property and all plants, buildings and improvements located
thereon conform to all applicable building, zoning and other laws, ordinances,
rules and regulations. All permits, licenses and other approvals necessary to
the current occupancy and use of the Real Property have been obtained, are in
full force and effect and have not been violated. There exists no violation of
any covenant, condition, restriction, easement, agreement or order affecting any
portion of the Real Property. All improvements located on the Real Property have
direct access to a public road adjoining such Real Property. No such
improvements or accessways encroach on land not included in the Real Property
and no such improvement is dependent for its access, operation or utility on any
land, building or other improvement not included in the Real Property. There is
no pending or, to the knowledge of any Acquired Company, any threatened
condemnation proceeding affecting any portion of the Real Property. There are no
outstanding options or rights of first refusal with respect to the purchase or
use of any of the Owned Real Property, any portion thereof or interest therein.
None of the Acquired Companies are obligated to purchase or lease any real
property.
(d) The Company has delivered or made available to Buyer copies
of the deeds and other instruments by which the Acquired Companies acquired all
Real Property, leaseholds or other interests owned by the Acquired Companies,
and copies of all title insurance policies, opinions, abstracts, and surveys in
the possession of the Acquired Companies and relating to such property or
interests.
3.8 No Undisclosed Liabilities. Except as set forth in Section 3.8 of
the Disclosure Schedule, the Acquired Companies have no liabilities or
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
except for liabilities or obligations reflected or reserved against in the most
recent Balance Sheet and current liabilities incurred in the ordinary course of
business since the date thereof, none of which is a liability resulting from,
arising out of, relating to, in the nature of or caused by any breach of
contract, breach of warranty, tort, infringement, claim or lawsuit.
3.9 Tax Matters. Except as set forth in the applicable
subsection of Section 3.9 of the Disclosure Schedule:
(a) Each of the Company and its Subsidiaries has filed all Tax
Returns that it was required to file. All such Tax Returns were correct and
complete in all respects. All Taxes owed by any of the Company and its
Subsidiaries (whether or not shown on any Tax Return) have been paid. Except as
set forth in Section 3.9(a)(i) of the Disclosure Schedule, none of the Company
and its Subsidiaries currently is the beneficiary of any extension of time
within which
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to file any Tax Return. Except as set forth in Section 3.9(a)(ii) of the
Disclosure Schedule, no claim has ever been made by an authority in a
jurisdiction where any of the Company and its Subsidiaries does not file Tax
Returns that it is or may be subject to taxation by that jurisdiction. There are
no security interests or liens on any of the assets of any of the Company and
its Subsidiaries that arose in connection with any failure (or alleged failure)
to pay any Tax.
(b) Each of the Company and its Subsidiaries has withheld and
paid all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party.
(c) No director or officer (or employee responsible for Tax
matters) of any of the Company and its Subsidiaries expects any authority to
assess any additional Taxes for any period for which Tax Returns have been
filed. There is no dispute or claim concerning any Tax Liability of any of the
Company and its Subsidiaries either (A) claimed or raised by any authority in
writing or (B) as to which any of the directors and officers (and employees
responsible for Tax matters) of the Company and its Subsidiaries has Knowledge
based upon personal contact with any agent of such authority. Section 3.9(c) of
the Disclosure Schedule lists all federal, state, local, and foreign income Tax
Returns filed with respect to any of the Company and its Subsidiaries for
taxable periods ended on or after December 31, 1991, indicates those Tax Returns
that have been audited, and indicates those Tax Returns that currently are the
subject of audit. The Company has delivered to the Buyer correct and complete
copies of all federal income Tax Returns, examination reports, and statements of
deficiencies assessed against or agreed to by any of the Company and its
Subsidiaries since December 31, 1991.
(d) None of the Company and its Subsidiaries has waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency.
(e) None of the Company and its Subsidiaries has filed a consent
under Code Section 341(f) concerning collapsible corporations. None of the
Company and its Subsidiaries has made any payments, is obligated to make any
payments, or is a party to any agreement that under certain circumstances could
obligate it to make any payments that will not be deductible under Code Section
280G. None of the Company and its Subsidiaries has been a United States real
property holding corporation within the meaning of Code Section 897(c)(2) during
the applicable period specified in Code Section 897(c)(1)(A)(ii). Each of the
Company and its Subsidiaries has disclosed on its federal income Tax Returns all
positions taken therein that could give rise to a substantial understatement of
federal income Tax within the meaning of Code Section 6662. None of the Company
and its Subsidiaries is a party to any Tax allocation or sharing agreement. None
of the Company and its Subsidiaries (A) has been a member of an Affiliated Group
filing a consolidated federal income Tax Return (other than a group the common
parent of which was the Company) or (B) has any Liability for the Taxes of any
Person (other than any of the Company and its Subsidiaries) under Treas. Reg.
Section 1.1502-6 (or any similar provision of state, local, or foreign law), as
a transferee or successor, by contract, or otherwise.
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(f) Section 3.9(f) of the Disclosure Schedule sets forth the
following information with respect to each of the Company and its Subsidiaries
(or, in the case of clause (B) below, with respect to each of the Subsidiaries)
as of the most recent practicable date: (A) the basis of the Company or such
Subsidiary in its assets; (B) the basis of the stockholder(s) of each Subsidiary
in its stock (or the amount of any Excess Loss Account (as such term is defined
in the Code)); (C) the amount of any net operating loss, net capital loss,
unused investment or other credit, unused foreign tax, or excess charitable
contribution allocable to the Company or any Subsidiary; (D) the amount of any
deferred gain or loss allocable to the Company or any Subsidiary arising out of
any Deferred Intercompany Transaction (as such term is defined in the Code); and
(E) sufficient detail regarding each asset of the Company or any Subsidiary
sold, transferred, conveyed, assigned or otherwise disposed of since the date of
the Balance Sheet to permit Buyer to determine the amount of any Tax (including
any Tax imposed pursuant to Section 1374 of the Code (Tax Imposed on Certain
Built-In Gains)) incurred or to be incurred through the Closing Date by any
Acquired Company for each taxable period ending on or after the Closing Date.
(g) The unpaid Taxes of the Company and its Subsidiaries (A) did
not, as of the date of the Most Recent Balance Sheet, exceed the reserve for Tax
Liability (rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the face of the
Most Recent Balance Sheet (rather than in any notes thereto) and (B) do not
exceed that reserve as adjusted for the passage of time through the day of the
Closing Date in accordance with the past custom and practice of the Company and
its Subsidiaries in filing their Tax Returns.
(h) The Company has been a validly electing S corporation within
the meaning of Code Sections 1361 and 1362 at all times since January 4, 1998
and the Company will be an S corporation up to and including the Closing Date.
(i) Section 3.9(i) of the Disclosure Schedule identifies each
Acquired Company that is a "qualified subchapter S subsidiary" within the
meaning of Code Section 1361(b)(3)(B). Each Subsidiary so identified has been a
qualified subchapter S subsidiary at all times since the date shown on such
schedule up to and including the Closing Date.
(j) Neither the Company nor any qualified subchapter S
subsidiary of the Company has, in the past 10 years, (A) acquired assets from
another Person in a transaction in which the Company's Tax basis for the
acquired assets was determined, in whole or in part, by reference to the Tax
basis of the acquired assets (or any other property) in the hands of the
transferor or (B) acquired the stock of any corporation which is a qualified
subchapter S subsidiary.
3.10 No Material Adverse Change. Since the date of the Balance
Sheet there has not been any material adverse change in the business,
operations, properties, prospects, assets, or condition (financial or
otherwise) of any Acquired Company.
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3.11 Contracts. Section 3.11 of the Disclosure Schedule lists the
following contracts and other agreements to which any Acquired Company is a
party (each a "Contract" and collectively, the "Contracts"):
(a) any agreement (or group of related agreements) for the
consignment or lease of machinery, equipment or other personal property to or
from any Person providing for lease payments in excess of $50,000 per annum;
(b) any agreement (or group of related agreements) for the
purchase or sale of raw materials, products, machinery, equipment or other
personal property, or for the furnishing or receipt of services, the performance
of which will extend over a period of more than one year or involve
consideration in excess of $50,000;
(c) any capitalized lease, pledge, conditional sale or title
retention agreement involving the payment of more than $50,000 in the aggregate;
(d) any agreement concerning a partnership or joint venture;
(e) any agreement (or group of related agreements) under which
it has created, incurred, assumed, or guaranteed any indebtedness for borrowed
money, or any capitalized lease obligation, or under which it has imposed a
Security Interest on any of its assets, tangible or intangible;
(f) any agreement concerning confidentiality or noncompetition
or otherwise prohibiting the Company or any of its Subsidiaries from freely
engaging in any business;
(g) any material agreement with the Seller or any of its
Affiliates;
(h) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan or
arrangement for the benefit of its current or former directors, officers, or
employees;
(i) any license, royalty or other agreement relating to any
Acquired Company's Intellectual Property;
(j) any agreement containing commitments of suretyship, guarantee
or indemnification (except for guarantees, warranties and indemnities provided
by the Company or any Subsidiary in the ordinary course of business and those
having a contract value, individually or in the aggregate of $25,000 or less);
(k) any agreement involving a governmental body;
(l) any collective bargaining agreement;
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(m) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing annual compensation
in excess of $50,000 or providing material severance benefits;
(n) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business, assets,
conditions, properties or prospects of any Acquired Company;
(o) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of $50,000; or
(p) any commitment to do any of the foregoing described in
clauses (a) through (o).
The Company has delivered to the Buyer a correct and complete
copy of each written agreement listed in Section 3.11 of the Disclosure Schedule
and a written summary setting forth the material terms and conditions of each
oral agreement referred to in Section 3.11 of the Disclosure Schedule. With
respect to each such agreement: (A) the agreement is legal, valid, binding,
enforceable, and in full force and effect in all material respects and will
continue to be so following the Closing; (B) no party is in material breach or
default, and no event has occurred which with notice or lapse of time would
constitute a material breach or default, or permit termination, modification, or
acceleration, under the agreement; and (C) no party has repudiated any material
provision of the agreement. Except as specifically identified in Section 3.11 of
the Disclosure Schedule, no Acquired Company is a party to any contract,
agreement or understanding which contains a "change in control", "potential
change in control" or similar provision which could be triggered by the
transactions contemplated by this Agreement.
3.12 Employee Benefits.
(a) As used in this Section 3.12, the following terms have the
meanings set forth below.
"Employee Benefit Plan"--any Pension Plan, Welfare Plan, or
Multi-Employer Plan which any of the Acquired Companies maintains or contributes
to, or with respect to which any of the Acquired Companies has any liability or
potential liability.
"Multi-Employer Plan"--has the meaning given in ERISA Section
3(37)(A).
"Other Benefit Obligation"--means all obligations, arrangements, or
customary practices, whether or not legally enforceable, to provide benefits,
other than salary, as compensation for services rendered, to present or former
directors, employees, or agents, other than obligations, arrangements, and
practices that are Plans with respect to which any of the Acquired Companies has
any liability or potential liability. Other Benefit Obligations include
consulting agreements under which the compensation paid does not depend upon the
amount of service rendered,
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sabbatical policies, severance payment policies, and fringe benefits within the
meaning of Section 132 of the Code.
"PBGC"--means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan"--has the meaning given in ERISA Section 3(2)(A).
"Plan"--has the meaning given in ERISA Section 3(3).
"Welfare Plan"--has the meaning given in ERISA Section 3(1).
(b) Section 3.12(b) of the Disclosure Schedule contains a
complete and accurate list of each Employee Benefit Plan and each other Benefit
obligation.
(c) The Company has delivered to Buyer, as applicable:
(i) All documents that set forth the terms of each
Employee Benefit Plan and each other Benefit obligation and of any related
trust, including plan documents and summary plan descriptions;
(ii) All personnel, payroll, and employment manuals and
policies;
(iii) All collective bargaining agreements pursuant to
which contributions have been made or obligations incurred by the Acquired
Companies;
(iv) A written description of any Other Benefit Obligation
that is not otherwise in writing;
(v) All insurance policies purchased by or to provide
benefits under any Employee Benefit Plan or Other Benefit Obligation;
(vi) All contracts with third party administrators,
actuaries, investment managers, consultants, and other independent contractors
that relate to any Employee Benefit Plan or Other Benefit Obligation;
(vii) The Forms 5500 filed with respect to each Employee
Benefit Plan in each of the most recent three plan years, including all
schedules thereto;
(viii) The most recent determination letter received with
respect to each Employee Benefit Plan from the IRS; and
(ix) The actuarial reports prepared with respect to each
Employee Benefit Plan in each of the most recent three plan years.
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(d) Except as set forth in Section 3.12(d) of the Disclosure Schedule:
(i) The Acquired Companies have performed all of their
respective obligations under all Employee Benefit Plans and Other Benefit
Obligations;
(ii) The Acquired Companies, with respect to all Employee Benefit
Plans and Other Benefit Obligations are in full compliance with ERISA, the Code,
and other applicable laws and with any applicable collective bargaining
agreement, no prohibited transaction has occurred, no Acquired Company has any
liability to the IRS or the PBGC, and all filings required by ERISA and the Code
as to each Employee Benefit Plan have been timely filed; and
(iii) Other than ordinary claims for benefits submitted by
participants or beneficiaries, no claim against or legal proceeding involving
any Employee Benefit Plan or Other Benefit Obligation is pending or, to the
Company's knowledge, is threatened.
(e) Each Employee Benefit Plan that is intended to be qualified within
the meaning of Code Section 401(a) has received a determination from the IRS
that such Employee Benefit Plan is so qualified and nothing has occurred since
the date of such determination that could adversely affect the qualification of
such Employee Benefit Plan.
(f) Each Employee Benefit Plan and any related trust, insurance
contract or fund has been maintained, funded and administered in compliance with
its respective terms and the terms of any applicable collective bargaining
agreements and in compliance with all applicable laws and regulations,
including, but not limited to, ERISA and the Code; there has been no application
for or waiver of the minimum funding standards imposed by Code Section 412 with
respect to any Employee Benefit Plan, and there are no circumstances that would
materially change the funded status of any Employee Benefit Plan; no asset that
is to be acquired by Buyer, directly or indirectly, pursuant to this Agreement
is subject to any lien under ERISA or the Code; and none of the Acquired
Companies has incurred any liability under Title IV of ERISA (other than for
contributions not yet due) or to the PBGC (other than for payment of premiums
not yet due).
(g) None of the Acquired Companies has incurred any liability on
account of a "partial withdrawal" or a "complete withdrawal" (within the meaning
of Section 4205 and 4203, respectively, of ERISA) from any Multi-Employer Plan,
no such liability has been asserted, and there are no events or circumstances
which could result in any such partial or complete withdrawal; and none of the
Acquired Companies is bound by any contract or agreement or has any obligation
or liability described in Section 4204 of ERISA.
(h) Each of the Acquired Companies has complied with the health care
continuation requirements of Part 6 of Subtitle B of Title I of ERISA; and none
of the Acquired Companies has any obligation under any Employee Benefit Plan or
otherwise to provide health or life insurance benefits to former employees of
the Acquired Companies or to any other person, except as specifically required
by Part 6 of Subtitle B of Title I of ERISA.
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(i) The Company has no liability with respect to any "employee
benefit plan" (as defined in Section 3(3) of ERISA) solely by reason of being
treated as a single employer under Code Section 414 with any trade, business or
entity other than the Acquired Companies.
3.13 Compliance With Legal Requirements. Except as set forth in Section
3.13 of the Disclosure Schedule, each Acquired Company has complied with and is
in compliance with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings and charges thereunder)
of federal, state or local governments, and all agencies thereof, and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim, demand,
grievance or notice has been filed or commenced against any of them alleging any
failure to comply.
3.14 Litigation. Except as set forth in Section 3.14 of the Disclosure
Schedule, none of the Acquired Companies nor their respective officers,
directors, employees or agents, in their capacities as such, are engaged in, a
party to, or threatened with any legal action or other proceeding or
investigation before any court, arbitrator or governmental agency, or are
subject to any pending or threatened adverse claim, the existence or outcome of
which could result in a monetary or non-monetary judgment, order or award that
could have a material adverse effect upon the business, operations or financial
condition of any Acquired Company.
3.15 Absence Of Certain Changes And Events. Except as set forth in
Section 3.15 of the Disclosure Schedule, since the date of the Most Recent
Balance Sheet, the Acquired Companies have conducted their businesses only in
the Ordinary Course of Business and, without limiting the generality of the
foregoing, there has not been any:
(a) change in any Acquired Company's authorized or issued capital
stock, grant of any stock option or right to purchase shares of capital stock of
any Acquired Company, issuance of any security convertible into such capital
stock, or declaration or payment of any dividend or other distribution or
payment in respect of shares of capital stock or redemption, purchase of or
other acquisition of shares of any Acquired Company's capital stock;
(b) amendment to the Organizational Documents of any Acquired
Company (except as provided in Section 5.3).
(c) damage to or destruction or loss of any asset (tangible or
intangible) or property of any Acquired Company, whether or not covered by
insurance, materially and adversely affecting the properties, assets, business
or financial condition of any Acquired Company;
(d) cancellation or compromise of any debt to, claim by or right
of the Acquired Companies except in the Ordinary Course of Business and as noted
on the books and records of the Acquired Companies;
(e) amendment or termination of any material contract or
commitment to which an Acquired Company is a party, other than in the Ordinary
Course of Business;
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(f) extraordinary transaction outside the Ordinary Course of
Business;
(g) sale, lease, transfer, or assignment of or lien or Security
Interest imposed upon, or any license or sublicense of, any material assets,
tangible or intangible, of any Acquired Company outside the Ordinary Course of
Business;
(h) material agreement, contract, lease, or license entered into
by any Acquired Company outside the Ordinary Course of Business;
(i) acceleration, termination, material modification to, or
cancellation of any material agreement, contract, lease, or license to which any
Acquired Company is a party or by which any of them is bound;
(j) capital expenditures in an amount in excess of $100,000.00
individually or in the aggregate or any capital investment in, or any loan to,
any other Person;
(k) loan to, or any other transaction entered into with, any
Acquired Company's directors, officers, and employees, other than employment
arrangements entered into in the Ordinary Course of Business and disclosed in
writing to Buyer;
(l) increase in the base compensation of or any other material
change in the employment terms of any Acquired Company's directors, officers and
employees;
(m) employment contract or collective bargaining agreement,
written or oral, entered into by any Acquired Company or any modification of the
terms of any existing such contract or agreement;
(n) adoption, amendment, modification, or termination of any
bonus, profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any Acquired Company's directors, officers, and
employees (and no such action has been taken with respect to any other Employee
Benefit Plan);
(o) change in the accounting principles, practices, procedures or
methods of any Acquired Company or in its cash management practices; or
(p) commitment by any Acquired Company to do any of the
foregoing.
3.16 Insurance.
(a) The Company has delivered to Buyer true and complete copies
of all policies of insurance (including policies providing property, casualty,
liability and workers' compensation coverage and bond and surety arrangements)
currently in force to which any Acquired Company is a party or under which any
Acquired Company, or any director or officer of any Acquired Company, is
covered.
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(b) Section 3.16(b) of the Disclosure Schedule sets forth with
respect to each policy (i) the name, address and telephone number of the agent,
(ii) the name of the insured, the name of the policy holder and the name of each
covered insured, (iii) the policy number and period of coverage, and (iv) a
description of any retroactive premium adjustment or other experience-based
liability on the part of any Acquired Company, and (iv) any contract or
arrangement, other than a policy of insurance, for the transfer or sharing of
any risk by any Acquired Company.
(c) Except as set forth in Section 3.16(c) of the Disclosure
Schedule, all policies to which any Acquired Company is a party or that provide
coverage to either Seller, any Acquired Company, or any director or officer of
an Acquired Company: (i) Are valid, outstanding, and enforceable, (ii) are
issued by an insurer that is financially sound and reputable, (iii) taken
together, provide adequate insurance coverage for the assets and the operations
of the Acquired Companies for all risks to which the Acquired Companies are
normally exposed, (iv) neither the Company, its Subsidiaries nor any other party
to the policy is in material breach or default (including with respect to the
payment of premiums or the giving of notices), and no event has occurred which,
with notice or the lapse of time, would constitute such a material breach or
default, or permit termination, modification, or acceleration, under the policy;
and (v) no party to the policy has repudiated any material provision thereof.
Section 3.16(c) of the Disclosure Schedule describes any material self-insurance
arrangements affecting any of the Company and its Subsidiaries.
(d) All known claims, if any, made against the Company or any of
the Subsidiaries that are covered by insurance have been disclosed to and
accepted by the appropriate insurance companies and are being defended by such
appropriate insurance companies and are described in Section 3.16(d) of the
Disclosure Schedule and, except as disclosed in Section 3.16(d) of the
Disclosure Schedule, no claims have been denied coverage during the last three
years.
3.17 Labor and Employment Matters.
(a) Except as set forth in Section 3.17 of the Disclosure
Schedule, no Acquired Company is party to or bound by any collective bargaining
agreement or relationship with any labor organization. Except as disclosed in
Section 3.17 of the Disclosure Schedule with respect to the Acquired Companies:
(i) no executive, key employee or group of employees has any plans to terminate
employment; (ii) no labor organization or group of employees has filed any
representation petition or made any written or oral demand for recognition;
(iii) no union organizing or decertification efforts are underway or threatened
and no other question concerning representation exists; (iv) within the past
five years no labor strike, work stoppage or slowdown, or other material labor
dispute has occurred, and none is underway or threatened; (v) there is no
employment-related charge, complaint, grievance, investigation, inquiry or
obligation of any kind, pending or threatened in any forum, relating to an
alleged violation or breach by any such Acquired Company (or its or their
officers or directors) of any law, regulation or contract; and (vi) no Acquired
Company or agent thereof has committed any act or omission giving rise to
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liability for any violation identified in subsection (v) above, or as a result
of any adverse workman's compensation experience.
(b) Any notice required under any law or collective bargaining
agreement has been given, and all bargaining obligations with any employee
representative have been satisfied. No Acquired Company has implemented any
plant closing or mass layoff of employees as those terms are defined in the
Worker Adjustment Retraining and Notification ("WARN") Act of 1988, as amended,
or any similar state or local law or regulation, and no layoffs that could
implicate such laws or regulations will be implemented before Closing without
advance notification to Buyer.
3.18 Environmental, Health And Safety Matters. Except as set forth in
Section 3.18 of the Disclosure Schedule:
(a) Each Acquired Company has complied and is in full compliance
with, and is not in violation of or liable under, any Environmental Law. There
is no threatened notice, claim, citation or directive from any federal, state or
local government, or any agency thereof, or private citizen acting in the public
interest, of any actual or potential violation or failure to comply with any
Environmental Law, or of any actual or threatened obligation to undertake or
bear the cost of any Environmental, Health, and Safety Liabilities with respect
to any property or assets (whether real, personal, or mixed) in which any
Acquired Company has or had an interest.
(b) There is no pending or threatened notice, claim, citation or
directive that relates to hazardous activity or hazardous materials, or any
alleged, actual or potential obligation to undertake or bear the cost of any
Environmental, Health, and Safety Liabilities with respect to any of the
properties or assets (whether real, personal, or mixed) in which any Acquired
Company has or had an interest, with respect to which hazardous materials have
been generated, handled, treated, stored or disposed of.
(c) The Company has delivered to Buyer true and complete copies
and results of all reports, studies, analyses, tests, or monitoring possessed by
any Acquired Company pertaining to hazardous materials or hazardous activities
in, on, or under the Real Property or concerning compliance by any Acquired
Company with Environmental Laws, except for such materials that are generated
routinely in the ordinary course of compliance with the terms of permits or
monitoring requirements imposed by Environmental Laws.
(d) Other than as disclosed in Section 3.18(d) of the Disclosure
Schedule, all properties and equipment used in the business of any Acquired
Company and their respective predecessors and Affiliates have been free of
asbestos, PCB's, methylene chloride, trichloroethylene,
1,2-transdichloroethylene, dioxins, dibenzofurans, and Extremely Hazardous
Substances.
(e) No Acquired Company has treated, stored, disposed of,
arranged for or permitted the disposal of, transported, handled, or released any
substance, including without limitation any hazardous substance, or owned or
operated any property or facility and no such
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property or facility is contaminated by any such substance, in a manner that has
given or would give rise to material liabilities, including any liability for
response costs, corrective action costs, personal injury, property damage,
natural resources damages or attorney fees, or any investigative, corrective or
remedial obligations, pursuant to any Environmental Law (including CERCLA and
RCRA).
(f) None of the following exists at any Owned Real Property or
Leased Real Property: (1) underground storage tanks; (2) asbestos-containing
material in any form or condition; (3) materials or equipment containing
polychlorinated biphenyls; or (4) landfills, surface impoundments or disposal
areas, except (x) in the case of clauses (1), (3) or (4), for such items that
are in compliance in all material respects with all applicable Environmental
Laws and (y) in the case of clause (2), for such items for which no remedial
actions are necessary to prevent any present or future material liability.
(g) Neither this Agreement nor the consummation of the
transactions contemplated hereby will result in any obligations for site
investigation or cleanup, or notification to or consent of government agencies
or third parties, pursuant to any so-called "transaction-triggered" or
"responsible transfer" Environmental Laws.
3.19 Intellectual Property.
(a) The Acquired Companies own or have the right to use pursuant
to a valid and enforceable license, agreement or permission all Intellectual
Property necessary for the operation of their businesses as presently conducted.
(b) No Acquired Company has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of third parties, and no Acquired Company has ever received any charge,
complaint, claim, demand or notice alleging any such interference, infringement,
misappropriation or violation or contesting the validity or enforceability of
any Intellectual Property owned or used by the Acquired Companies.
(c) Section 3.19(c) of the Disclosure Schedule identifies each
item of patented, registered and applied for Intellectual Property, and material
unregistered trademarks, service marks, trade names, copyrights, in each case
owned by any of the Acquired Companies, and any Intellectual Property that any
third party owns and that the Acquired Companies use pursuant to license,
sublicense, agreement or permission. The Company has delivered to Buyer correct
and complete copies of all such licenses, agreements and permissions as
currently in effect with respect to each item of Intellectual Property so
identified.
(d) None of the Acquired Companies have any notice of or are
aware of any facts which indicate a likelihood of any infringement or
misappropriation by any third party with respect to the Intellectual Property of
the Acquired Companies.
(e) All Intellectual Property owned or used by the Acquired
Companies immediately prior to the Closing will be owned or available for use by
the Acquired Companies on identical terms and conditions immediately subsequent
to the Closing.
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(f) "Intellectual Property" shall mean all patents, patent
applications and patent disclosures; all inventions (whether or not patentable
and whether or not reduced to practice); all trademarks, service marks, trade
dress, trade names and corporate names and all the goodwill associated
therewith; all mask works; all registered and unregistered statutory and common
law copyrights; all registrations, applications and renewals for any of the
foregoing; all trade secrets, confidential information, ideas, formulae,
compositions, know-how, manufacturing and production processes and techniques,
research information; drawings, specifications, designs, plans, improvements,
proposals, technical and computer data, documentation and software, financial,
business and marketing plans, customer and supplier lists and related
information, marketing materials and all other intellectual property rights.
3.20 Transaction With Affiliates. Except as set forth on in Section
3.20 of the Disclosure Schedule, none of the Company's nor any of its
Subsidiaries' shareholders, directors, officers or employees nor any of their
respective relatives or Affiliates is involved in any business arrangement or
relationship with the Company or any of its Subsidiaries (whether written or
oral), and none of the Company's or any of its Subsidiaries' shareholders,
directors, officers or employees nor any of their respective relatives or
Affiliates owns any property or right, tangible or intangible, which is used by
the Company or any of its Subsidiaries or necessary to the business of any
Acquired Company.
3.21 Funded Debt. Except as set forth in Section 3.21 of the
Disclosure Schedule neither the Company nor any of its Subsidiaries has
outstanding any Funded Debt nor is a guarantor or is otherwise responsible for
any liability or obligation (including indebtedness) of any other Person.
3.22 Due Inquiry. Each of the directors and officers of each Acquired
Company has reviewed each of the representations and warranties contained in
this Section 3 and the Company has made due inquiry of each person who is in a
corporate management, plant management or superintendent level position who
might reasonably be expected, within the scope of his or her management or
supervisory responsibility, to have information regarding or knowledge of any
fact, event or other circumstance which may constitute a breach of any
representation or warranty of the Company contained herein.
3.23 Disclosure. Taken as a whole, the representations and warranties
contained in this Section 3 do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements and information contained in this Section 3 not misleading.
3.24 Representations And Warranties Concerning The ESOP.
(a) The sale of the Shares will not violate or conflict with the
governing documents of the ESOP and will not constitute a "prohibited
transaction" as defined in Code Section 4975(c) and Sections 406 and 407 of
ERISA and the regulations thereunder.
(b) Except as set forth in Section 3.24(b)(i) or (ii) of the
Disclosure Schedule, as applicable, during the 3-year period ending on the
Closing Date, (i) there have been no sales
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of securities to the ESOP and (ii) there have been no sales of securities to the
ESOP as to which the Company has provided or agreed to provide the written
statement required by Code Section 1042(b)(3) or which could otherwise cause any
Acquired Company to be subject to any Tax pursuant to Code Section 4978.
(c) There are no outstanding loans with respect to the ESOP, and
no unallocated shares are held in the ESOP suspense account.
3.25 Brokers Or Finders. Except as set forth in Section 3.25 of the
Disclosure Schedule, no Acquired Company has incurred any obligation or
liability for any fee or commission to any broker, finder or agent in connection
with this Agreement or with respect to the Contemplated Transactions or the sale
of the Ashland Facility or which could otherwise result in the obligation of
Buyer to pay any such fee or commission.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
4.1 Organization And Good Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Wisconsin.
4.2 Authority; No Conflict.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
(b) Except as set forth in Annex I, neither the execution and
delivery of this Agreement by Buyer nor the consummation or performance of the
Contemplated Transactions on the terms and conditions prescribed herein will
give any person or entity the right to prevent, delay, or otherwise interfere
with any of the Contemplated Transactions pursuant to: (i) any provision of
Buyer's Organizational Documents, (ii) any order, writ, decree or injunction of
any court or governmental agency having jurisdiction over it or any of its
properties, or (iii) any contract, commitment or other obligation to which Buyer
is a party or by which Buyer may be bound.
(c) Except as set forth in Annex I or with respect to
requirements under the HSR Act, Buyer is not and will not be required to obtain
any consent from any governmental or regulatory authority or other person or
entity in connection with the execution and delivery of this Agreement or the
consummation or performance of the Contemplated Transactions on the terms and
conditions prescribed herein.
4.3 Brokers Or Finders. Buyer has incurred no obligation or liability
for any fee or commission to any broker, finder or agent, and will not incur any
such obligation or liability, in connection with this Agreement which would
result in the obligation of Seller to pay any such fee or commission with
respect to the Contemplated Transactions.
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5. COVENANTS OF THE COMPANY, AND SELLER WITH RESPECT TO THE ESOP.
5.1 Access And Investigation. Between the date of this Agreement and
the Closing Date, the Company and Seller will, and will cause each Acquired
Company and its representatives and employees to, (a) afford Buyer and its
representatives and prospective lenders and their representatives (collectively,
"Buyer's Advisors") full and free access to each Acquired Company's personnel,
properties (including subsurface testing), contracts, books and records, Tax
Returns and other documents and data, (b) furnish Buyer and Buyer's Advisors
with copies of all such contracts, books and records, and other existing
documents and data as Buyer may reasonably request, and (c) furnish Buyer and
Buyer's Advisors with such additional financial, operating, and other data and
information as Buyer may reasonably request and cause its officers, employees,
consultants, agents, accountants and attorneys to cooperate fully with such
representatives in connection with such review and examination and to make full
disclosure to Buyer and its lenders of all material facts affecting the
financial condition and business operations of the Company and its Subsidiaries.
5.2 Operation Of The Businesses Of The Acquired Companies. Between the
date of this Agreement and the Closing Date, the Company and Seller will, and
will cause each Acquired Company to: (a) conduct the business of such Acquired
Company only in the Ordinary Course of Business; (b) use their best efforts to
preserve intact its current business, assets and organization and maintain the
relations and good will with suppliers, customers, landlords, licensors,
creditors, employees, agents, and others having business relationships with such
Acquired Company; (c) confer with Buyer concerning operational matters of a
material nature; and (d) otherwise report periodically to Buyer, as Buyer may
reasonably request, concerning the status of the business, operations, and
finances of such Acquired Company.
5.3 Negative Covenant. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, the Company
and Seller will not, and will cause each Acquired Company not to, without the
prior consent of Buyer, take any affirmative action, or fail to take any
reasonable action within their or its control, as a result of which any of the
changes or events listed in Section 3.15 will or is likely to occur, except:
prior to the Closing the by-laws of the Company will be duly amended, effective
with and contingent upon the Closing, to delete section 2.01 thereof, which
currently limits the ownership of substantially all of the Company's outstanding
shares to the salaried employees and the trustee of the ESOP. From and after the
Determination Date, none of the Acquired Companies shall pay, cause to be paid
or permit to be paid any amount that would have the effect of reducing the
amount of any outstanding Funded Debt other than in accordance with the terms
thereof, to the extent necessary to avoid the occurrence or continuation of any
default or event of default thereunder, or on the Closing Date in accordance
with Section 2.2.
5.4 Notification. Between the date of this Agreement and the Closing
Date, the Company and Seller will promptly notify Buyer in writing if Seller or
any Acquired Company or any of its employees becomes aware of any fact or
condition that causes or constitutes a breach of any of their representations
and warranties as of the date of this Agreement, or if Seller or any Acquired
Company or any of its employees becomes aware of the occurrence after the
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date of this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. Should any such
fact or condition require any change in the Disclosure Schedule if the
Disclosure Schedule were dated the date of the occurrence or discovery of any
such fact or condition, the Company and Seller will promptly deliver to Buyer a
supplement to the Disclosure Schedule specifying such change; provided, that any
such disclosure shall not be effective to cure any such breach for purposes of
Section 7.1 without the written consent of Buyer.
5.5 Fairness Opinion. Prior to the Closing Date, Seller shall retain
Duff & Phelps or such other qualified, independent financial advisor (as is
reasonably acceptable to Buyer) to make an appraisal of the fair market value of
the ESOP and to render an opinion at Closing to the effect that the Purchase
Price is not less than the fair market value of the Shares, and the Contemplated
Transactions are fair to the ESOP from a financial point of view.
5.6 Termination Of ESOP. Prior to the Closing, the Company's Board of
Directors will adopt resolutions to terminate the ESOP, effective with and
contingent upon the Closing.
5.7 Best Efforts. Between the date of this Agreement and the Closing
Date, the Company and Seller will use their best efforts to cause the conditions
in Sections 7 and 8 to be satisfied. Seller and the Company will, as soon as
reasonably practicable, commence to take all commercially reasonable actions
required to obtain all consents, approvals, waivers and agreements of, and to
give all notices and make all other registrations or filings with, any third
parties, including governmental authorities, including any such filing required
under the HSR Act, necessary to authorize, approve or permit the full and
complete sale, conveyance, assignment, transfer and delivery of the Shares and
the continuance in full force and effect of the permits, contracts and other
agreements set forth on the Disclosure Schedule, and shall cooperate with Buyer
with respect thereto; provided, that it shall be the obligation of the Company
and Seller to procure all authorizations, consents and approvals set forth in
Section 3.2(c) of the Disclosure Schedule.
5.8 Exclusivity. (a) Until the earlier occurs of the Closing or the
termination of this Agreement, none of the Seller, any Acquired Company, nor any
of their respective directors, officers, employees, agents, representatives,
shareholders or Affiliates (collectively, the "Company Group") shall initiate,
solicit, entertain, negotiate, accept or discuss, directly or indirectly, or
encourage inquiries or proposals (each, an "Acquisition Proposal") with respect
to, or furnish any information relating to or participate in any negotiations or
discussions concerning, or enter into any agreement with respect to, any
acquisition or purchase of all or a substantial portion of the business, assets,
properties, capital stock or capital stock equivalents of the Company or any of
its Subsidiaries (a "Potential Sale"), whether by merger, combination, sale of
stock, sale of assets, recapitalization, or otherwise (an "Acquisition"), or
enter into any agreement, arrangement or undertaking requiring it to abandon,
terminate or fail to consummate the transaction contemplated by this Agreement.
The Seller and the Company shall, and shall cause each other member of the
Company Group to, immediately cease and cause to be terminated any existing
activities, including discussions or negotiations with any parties, other than
Buyer, conducted prior to the
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date hereof with respect to any Acquisition Proposal. The Company shall (i)
immediately inform Buyer of any inquiries any member of the Company Group
receives after the date hereof concerning an Acquisition Proposal or Potential
Sale and provide Buyer with copies of all correspondence or other documents
received in connection therewith and (ii) inform the Persons sending such
inquiries, requests or proposals that the Company is bound by an exclusivity
arrangement (without any reference to Buyer, its Affiliates, or its potential
financing sources). The Seller and the Company represent that each is not a
party to or bound by any agreement with respect to an Acquisition Proposal other
than under this Agreement. Each of the Seller and the Company shall cause its
officers, directors, agents and advisors to comply with the provisions of this
Section 5.8. Notwithstanding the foregoing, Seller and Company shall not be
prohibited by this Section 5.8 from participating in negotiations to sell the
Ashland Facility; provided that the Company shall keep the Buyer duly apprised
of all such negotiations or transactions and provide Buyer with any such
information or details regarding such transaction as Buyer shall reasonably
request.
(b) Termination Rights. If the ESOP Fiduciary shall determine or
the Board of Directors of the Company shall determine by a majority vote, in
each case, in good faith, after consultation with its financial and legal
advisors, with respect to any unsolicited written proposal from a third party
for an Acquisition Proposal received after the date hereof that failure to enter
into such Acquisition Proposal would constitute a breach of the fiduciary duties
of the ESOP Fiduciary or the Board of Directors of the Company, as the case may
be, under applicable law and that such Acquisition Proposal is more favorable to
the Seller and the Company than the transactions contemplated by this Agreement
and is in the best interest of the Seller and the Company and the Company has
received the advice of its outside legal counsel setting forth the relevant
factors the Board of Directors must consider under applicable law, and in the
written opinion of such counsel, the failure to consider such an Acquisition
Proposal would constitute a breach of the Company's Board of Directors'
fiduciary duties under applicable law, then the Company may terminate this
Agreement and enter into a letter of intent, agreement-in-principle, acquisition
agreement or other similar agreement (each, as an "Acquisition Agreement") with
respect to such Acquisition Proposal; provided that, (A) prior to any such
termination, the Company has provided Buyer written notice that it intends to
terminate this Agreement pursuant to this Section 5.8(b) and Section 9,
identifying the Acquisition Proposal then determined to be more favorable and
the parties thereto and delivering an accurate description of all material terms
(including any changes or adjustment to such terms as a result of negotiations
or otherwise) of the Acquisition Agreement to be entered into for such
Acquisition Proposal, (B) prior to such termination the Company shall offer to
Buyer the right to amend this Agreement to provide terms substantially
equivalent to or better than such Acquisition Proposal, and (C) the Company
shall pay or cause to be paid to Buyer the amount set forth in Section 9.2(b).
5.9 S Corporation Status. Neither the Company nor Seller will revoke
the Company's election to be taxed as an S corporation within the meaning of
code Sections 1361 and 1362. Neither the Company nor Seller will take or allow
any action that would result in the termination of the Company's status as a
validly electing S corporation within the meaning of Code Sections 1361 and
1362.
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5.10 Disclosure Schedule. Seller and the Company shall deliver the
Disclosure Schedule in form and substance reasonably acceptable to Buyer as
promptly as practicable after the date hereof (but in any event within 10 days
of the date hereof); provided, that upon acceptance thereof by the Buyer, such
Disclosure Schedule shall be deemed to be effective as of the date hereof.
5.11 Tax Returns. The Company shall prepare Tax Returns for all
complete taxable periods (including United States federal, state and local
income tax returns for the 1997 tax year) which have not been and will not be
filed prior to the Closing Date and shall deliver such Tax Returns to the Buyer
not less than ten (10) days prior to the Closing together with all supporting
worksheets, documents and other information. The Company shall permit the Buyer
and its representatives and advisors to have full access, at any reasonable time
and from time to time until the Closing to all pre-Closing Tax Returns and all
books and records, wherever located, relevant to such Tax Returns and the
Company shall cause its accountants or other persons necessary to, responsible
for or connected to the preparation of such Tax Returns to be made available to
Buyer and its representatives and advisors and to cooperate with the Buyer in
the preparation of such Tax Returns. Each Tax Return (including any schedule and
statement thereto) shall be true, correct and accurate in all respects and in
the condition necessary for the Company to file such Tax Returns following the
Closing as and when due.
6. COVENANTS OF BUYER.
6.1 Approvals Of Governmental Bodies. As promptly as practicable
after the date of this Agreement, Buyer will use commercially reasonable efforts
to make all filings required to be made by it to consummate the Contemplated
Transactions (including all filings under the HSR Act). Between the date of this
Agreement and the Closing Date, Buyer will cooperate (without incurring any cost
or expense) with the Company and Seller with respect to all filings that they
are required to make in connection with the Contemplated Transactions, and shall
cooperate with the Company and Seller in obtaining all consents identified in
Section 3.2 of the Disclosure Schedule.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.
Buyer's obligation to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, at
or prior to Closing, of each of the following conditions (any of which may be
waived by Buyer in its sole discretion, in whole or in part):
7.1 Accuracy Of Representations. All representations and warranties
of the Company and Seller contained in this Agreement must have been accurate in
all material respects as of the date of this Agreement and must be accurate in
all material respects as of the Closing Date as if made on the Closing Date.
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7.2 Performance. All of the covenants and obligations that Seller is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been duly performed and complied with in all material
respects.
7.3 Consents. Each of the Consents, if any, identified in Section 3.2
of the Disclosure Schedule shall have been obtained and must be in full force
and effect.
7.4 Documents to be Delivered by Company. At the Closing, Company and
Seller shall have delivered to Buyer the following documents, in each case duly
executed or otherwise in proper form:
(a) A copy of the opinion, dated as of the Closing Date, of the
independent financial advisor to the ESOP to the effect that as of the Closing
Date the Purchase Price is not less than the fair market value of the Shares,
and the Contemplated Transactions are fair to the ESOP from a financial point of
view.
(b) An opinion of Dutton & Overman, P.C., counsel to the Company,
substantially in the form of Exhibit 7.4(b).
(c) An opinion of Ludwig Goldberg & Krenzel, counsel to the ESOP,
in the form of Exhibit 7.4(c).
(d) Fully executed Mortgage Releases, UCC-3 Termination
Statements, and other releases necessary to release all liens on and security
interests in assets of the Acquired Companies.
(e) Stock Certificate(s). Shares certificates representing all of
the outstanding shares of the Shares, duly endorsed in blank or otherwise
acceptable for transfer, with all restrictive legends (if any) either removed or
properly canceled.
(f) Stock Option, etc. Evidence of the exercise, conversion or
cancellation of all options, warrants, convertible securities and other rights
or securities disclosed in Section 3.3 of the Disclosure Schedule, in form and
substance satisfactory to Buyer.
(g) Compliance Certificate. A certificate signed on behalf of the
Company by the chief executive officer of the Company that each of the
representations and warranties made by the Company in this Agreement is true and
correct in all material respects on and as of the Closing Date with the same
effect as though such representations and warranties had been made or given on
and as of the Closing Date, and that the Company has performed and complied in
all material respects with all of its obligations under this Agreement which are
to be performed or complies with on or prior to the Closing Date.
(h) Certified Resolutions. Certified copies of the resolutions of
the Board of Directors and the stockholders of the Company, authorizing and
approving this Agreement and the consummation of the transactions contemplated
hereby.
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(i) Articles; Bylaws; Good Standings. (i) A copy of the articles
of incorporation of the Company and each Subsidiary certified as of a recent
date by the Secretary of State of the state of incorporation of each such
company, (ii) a copy of the bylaws of the Company and each Subsidiary certified
by the secretary of the Company and each Subsidiary, respectively and (iii)
certificates of good standing for the Company and its Subsidiary from the
Secretary of State of the state of incorporation of each such company and from
each other jurisdiction in which such company is required to qualify to do
business, in each case dated not more than ten (10) days prior to the Closing
Date.
(j) Consents and Approvals. Material consents, if any, of third
parties necessary for the Company, or the Sellers to execute, deliver and
perform this Agreement.
(k) Incumbency Certificate. Incumbency certificates relating to
each person executing (as corporate officer or otherwise on behalf of another
person) any document executed and delivered to Buyer pursuant to the terms
hereof.
(l) Resignations. Written resignations and releases of the
directors and officers of the Company and its Subsidiary substantially in the
form of Exhibit 7.4(l).
(m) Other Documents. All other documents, instruments or writings
required to be delivered to Buyer at or prior to the Closing pursuant to this
Agreement and such other certificates of authority and documents as Buyer may
reasonably request.
7.5 HSR Act Waiting Period. All applicable waiting periods related to
the HSR Act shall have expired.
7.6 No Injunction. No injunction or other restraining order
prohibiting the sale of the Shares by Seller to Buyer shall be in effect.
7.7 Real Property. (a) A title insurance company selected by Buyer
(the "Title Company") shall be willing to insure at standard rates the
applicable Acquired Company's marketable title in and to the Owned Real Property
in fee simple, the applicable Acquired Company's leasehold estate in any
financeable Leased Real Property (a "Financeable Leasehold") and Buyer's
lender's mortgage lien on the Owned Real Property and each Financable Leasehold,
in each case free and clear of all Liens, defects, claims, leases, rights of
possession or other encumbrances (other than the matters disclosed in Sections
3.7(a) and 3.7(b) of the Disclosure Schedule) including such endorsements and
affirmative coverages as Buyer and Buyer's lender (the "Lender") shall
reasonably require (including without limitation non-imputation endorsements).
The Company shall provide all such affidavits and indemnities as the Title
Company reasonably shall require in order to afford such coverages.
(b) Buyer shall have obtained a survey of each Owned Real
Property and each Leased Real Property to which an Acquired Company holds a
Financable Leasehold conforming to the Minimum Standard Detail Requirements
jointly established and approved in 1992 by ALTA and ACSM certified to the
Buyer, the applicable Acquired Company, the Lender and the
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Title Company and showing no Liens, defects, encroachments or encumbrances other
than the matters disclosed in Sections 3.7(a) and 3.7(b) of the Disclosure
Schedule.
(c) All Real Property shall be in substantially the same condition
and repair as that on the date of this Agreement, reasonable wear and tear
excepted.
(d) Buyer shall have received (i) from each landlord under a Lease
an estoppel, (ii) from each landlord under a Lease described in Section 3.2(c)
of the Disclosure Schedule a consent to the transactions contemplated by this
Agreement and (iii) from each mortgagee and ground lessor of any Leased Real
Property a nondisturbance agreement, in each case in form and substance
reasonably satisfactory to Buyer and Lender. Lender shall have received from
each landlord under a Lease designated by Lender an agreement regarding the
subordination to Lender of such landlord's lien against personal property on the
applicable demised premises and such other matters as Lender reasonably may
require.
(e) The Company shall have timely paid any and all real property
transfer, transfer gains, stamp and other similar taxes, if any, assessed in
connection with the transactions contemplated by this Agreement and shall have
delivered evidence satisfactory to Buyer and the Title Company of the payment of
such taxes.
(f) Buyer shall have received from each Acquired Company that owns
any of the Owned Real Property an affidavit (i) stating that such entity is not
a "foreign person", as defined in Section 1445(f)(3) of the Internal Revenue
Code, (ii) setting forth such entity's taxpayer identification number, (iii)
stating that such entity intends to file a U.S. income tax return with respect
to the sale of such Owned Real Property, and (iv) granting Buyer permission to
furnish a copy of such affidavit to the Internal Revenue Service.
7.8 Participant Vote. If this Agreement and the Contemplated
Transactions shall have been submitted to a vote of the ESOP participants for
approval or disapproval, on the basis of one vote for each of the Shares
allocated to participants' ESOP accounts, this Agreement and the Contemplated
Transactions shall have been approved by the participant's whose ESOP accounts
represent not less than a majority of the Shares.
7.9 No Material Adverse Effect. During the period from the date hereof
to the Closing Date, no event shall have occurred or be continuing (including
any litigation) which has had or could reasonably be expected to have a material
adverse effect on the business, assets, properties, condition (financial or
otherwise) or prospects of any Acquired Company.
7.10 Absence of Litigation. No action, suit, investigation or
proceeding shall have been commenced or threatened by a governmental agency or
third party against Buyer, the Company, its Subsidiaries, or any of the
affiliates, officers or directors of any of them, with respect to the
transactions contemplated hereby, challenging the rights of the parties hereto
to consummate such transactions or which reasonably could be expected to have a
material adverse effect.
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7.11 Management Arrangements. Such members of the Company's management
as Buyer shall determine, shall have entered into formal arrangements with
Buyer, on terms and conditions satisfactory to Buyer in its sole discretion.
7.12 Financing. Buyer shall have received cash proceeds of financing in
an amount necessary to consummate the purchase of the Shares and to pay all fees
and expenses in connection therewith and to provide for ongoing working capital
needs of Buyer and the Company, and having such terms and conditions as are
satisfactory to Buyer in its sole discretion.
7.13 Due Diligence. Buyer shall have completed its due diligence review
of the Company and the Subsidiaries, and Buyer shall, in good faith, be
satisfied with the results of such due diligence review.
7.14 All Proceedings To be Satisfactory. All corporate and other
proceedings to be taken by the Sellers in connection with the transactions
contemplated hereby, and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Buyer and its counsel, and the Buyer
and said counsel shall have received all such counterpart originals or certified
or other copies of such documents as it or they may reasonably request.
7.15 Sale of Ashland Facility. If the Company shall have entered into
an agreement for or consummated the sale of the Ashland Facility, such
transaction must be on terms and conditions satisfactory to Buyer in all
respects.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
Seller's obligation to sell the Shares and to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Seller, in whole or in part):
8.1 Accuracy Of Representations. All representations and warranties of
Buyer contained in this Agreement must have been accurate in all material
respects as of the date of this Agreement and must be accurate in all material
respects as of the Closing Date as if made on the Closing Date.
8.2 Performance. All of the covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been duly performed and complied with in all material
respects.
8.3 Consents. Each of the Consents identified in Section 4.2 of Annex I
shall have been obtained and must be in full force and effect.
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8.4 Additional Documents. Each of the following documents shall have
been delivered to Seller:
(a) The opinion, dated as of the Closing Date, of the independent
financial advisor to the ESOP to the effect that as of the Closing Date the
Purchase Price is not less than the fair market value of the Shares, and the
Contemplated Transactions are fair to the ESOP from a financial point of view.
(b) Written evidence of approval of the Contemplated Transactions
on behalf of the ESOP by the ESOP Fiduciary.
(c) An opinion of Kirkland & Ellis, counsel to Buyer,
substantially in the form of Exhibit 8.4(c).
(d) Such other documents as may be required by this Agreement to
be delivered to Seller at or prior to Closing.
8.5 Participant Vote. If this Agreement and the Contemplated
Transactions shall have been submitted to a vote of the ESOP participants for
approval or disapproval, on the basis of one vote for each of the Shares
allocated to participants' ESOP accounts, this Agreement and the Contemplated
Transactions shall have been approved by the participant's whose ESOP accounts
represent not less than a majority of the Shares.
8.6 No Injunction. No injunction or other restraining order
prohibiting the sale of the Shares by Seller to Buyer shall be in effect.
8.7 Minimum Purchase Price. The quotient of aggregate Purchase Price
payable to the Seller pursuant to Section 2.2 divided by 2,371,342.8776 shall be
equal to or greater than $26.50.
9. TERMINATION.
9.1 Termination Events. This Agreement may, by notice given prior to
or at the Closing, be terminated:
(a) (i) By Buyer if any of the conditions in Section 7 has not
been satisfied as of the Closing Date and Buyer has not waived such condition on
or before the Closing Date; or (ii) by Seller, if any of the conditions in
Section 8 has not been satisfied as of the Closing Date and Seller has not
waived such condition on or before the Closing Date.
(b) By mutual consent of Buyer and Seller; or
(c) By either Buyer or Seller if the Closing has not occurred on
or before September 4, 1998, or such later date as the parties may agree upon.
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(d) By Seller in accordance with Section 5.8(b).
(e) By Buyer in the event that the Company and Seller shall not
have delivered to Buyer the Disclosure Schedule in form and substance reasonably
satisfactory to Buyer within 10 days after the date hereof, provided that Buyer
shall have until the 5th business day following receipt of the Disclosure
Schedule to review the same and exercise its rights under this Section 9.1(e).
9.2 Effect Of Termination.
(a) If this Agreement is terminated pursuant to Section 9.1, all
further obligations of the parties under this Agreement will terminate and no
party shall have any liability to the other party, except for obligations of the
parties hereto in Sections 12.1, 12.2 and 12.3, which shall survive the
termination of this Agreement, and except that nothing herein will relieve any
party from liability for any breach of any agreement or covenant contained
herein prior to such termination or liability for any breach of any
representation or warranty by such party which breach is known to such party as
of the date of this Agreement. For purposes o the foregoing sentence, a breach
shall be deemed to be known to a party if such party had actual knowledge of any
fact or other matter the existence of which is contradictory to or constitutes
the basis of a breach or any representation or warranty, or, with respect to the
Company's obligation under Section 3.22, is discovered upon completion of the
due inquiry there specified.
(b) If this Agreement is terminated pursuant to Section 9.1(d)
and, within 12 months after the date of this Agreement, an Acquisition is
completed, then the Company shall pay to Buyer a fee of $5,000,000.00 to, among
other things, compensate Buyer for its time and effort and for out-of-pocket
expenses (whether incurred prior to or after the date of this Agreement)
incurred by the Buyer and its Affiliates in connection with the transactions
contemplated by this Agreement, which amount shall be payable by wire transfer
of immediately available funds immediately prior to the consummation of such
Acquisition.
10. NO INDEMNIFICATION.
Following the Closing, neither Seller nor any Acquired Company, nor
Buyer, nor their respective officers, directors, employees or agents, shall have
any liability for breach of any representation, warranty, covenant, commitment
or other obligation contained in or arising out of this Agreement, other than
any such obligation pursuant to Section 11 or Section 12 hereof. Nothing
contained in this Agreement shall be interpreted to eliminate, diminish, or
affect the rights of current and former directors, officers, employees and
agents of the Company to any rights of indemnification to which they are
entitled under the Company's Code of By-laws or the Indiana Business Corporation
Law. The obligations of the parties hereto provided in Sections 12.1, 12.2 and
12.3 shall survive the termination of this Agreement.
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11. POST-CLOSING COVENANTS.
11.1 Determination Letter. As soon as practicable after the Closing, an
application shall be filed by the Company with the appropriate District Director
of Internal Revenue, requesting a determination that the ESOP is qualified under
Code Section 401(a) upon its termination. Any ESOP amendments or such other
related documents or information as shall be necessary or appropriate to obtain
such determination, or as the IRS shall request, shall be submitted in
connection with such application.
11.2 Distribution Of Trust Assets. As soon as practicable after the
issuance by the IRS of a favorable determination letter as provided in Section
11.1 above, all ESOP trust assets shall be distributed to the ESOP participants
in accordance with the terms of the ESOP.
11.3 Valuation Report. Immediately following the Closing, the ESOP
Fiduciary shall deliver or cause to be delivered to Buyer a copy of the
valuation report prepared by Duff & Phelps, as financial advisor to the ESOP,
which supports the fairness opinion referred to in Sections 5.5 and 7.4(a).
11.4 Existing Agreements. Buyer shall cause the Company to perform and
the Company shall continue the performance of all its obligations under the
employment agreements, supplemental benefits agreements and split dollar
agreements between the Company and certain current and former executives as
identified in Sections 3.11(h) and 3.12(b) of the Disclosure Schedule, in
accordance with their respective terms.
12. GENERAL PROVISIONS.
12.1 Expenses. All costs and expenses incurred by each of Buyer and the
Company in connection with the negotiation, preparation, execution and
performance of this Agreement and the consummation of the Contemplated
Transactions will be paid by Buyer and the Company, respectively. All such costs
and expenses incurred by Seller shall be paid by the Company. The Company shall
pay on behalf of Seller any and all real property transfer, transfer, gains,
stamp and other similar Taxes, if any, assessed in connection with the
transactions contemplated by this Agreement and shall have delivered evidence
satisfactory to Buyer and the company providing title insurance thereto, of the
payment of such Taxes. The Purchase Price specified in Section 2.2 shall be net
of all such costs and expenses of Seller and the Company, including the
estimated costs of the actions to be taken pursuant to Sections 11.1 and 11.2
above.
12.2 Public Announcements. The timing and content of all announcements
regarding any aspect of this Agreement or the transactions contemplated hereby
to the financial community, government agencies, employees or the general public
shall be mutually agreed upon in advance by the Parties hereto; provided, that
each party hereto may make any such announcement which it in good faith
believes, based on advice of counsel, is necessary or advisable in connection
with any requirement of law or regulation, it being understood and agreed that
each party shall promptly provide the other parties hereto with copies of any
such announcement; and provided further that Buyer or its affiliates may make
any announcement or disclosure to current or future
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financing sources or subsequent purchasers or assignees of substantially all of
the capital stock or assets of Buyer, or any Subsidiary or Affiliate thereof
without consent of or disclosure to the Company or the Seller.
12.3 Confidentiality. Until the Closing Date the parties and the
Acquired Companies will maintain in confidence, and will cause their officers,
directors, employees, agents and advisors to maintain in confidence any written,
oral, or other information obtained in confidence from another party or an
Acquired Company in connection with this Agreement or the Contemplated
Transactions or which such party has reason to believe is confidential or
commercially sensitive. If the Contemplated Transactions are not consummated,
each party will return or destroy as much of such written information as the
other party may reasonably request.
12.4 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and shall be delivered personally, by
telecopier, by certified mail, return receipt requested, or by a nationally
recognized overnight delivery service (costs prepaid), and shall be deemed given
or made upon receipt thereof. All such notices are to be given or made to the
parties at the following addresses (or to such other address as any party may
designate by a notice given in accordance with the provisions of this Section):
If to Buyer:
Neenah Foundry Company
2121 Brooks Avenue
Neenah, Wisconsin 54957
Attention: James K. Hildebrand
Telecopy No.: (920) 729-3603
With copies (which shall not constitute notice to Buyer:
Citicorp Venture Capital, Ltd.
399 Park Avenue, 14th Floor, Zone 4
New York, NY 10043
Attention: John D. Weber
Telecopy No.: (212) 888-2940
and
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attention: Kirk A. Radke, Esq.
Telecopy No.: (212) 446-4900
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If to the Company or Seller:
Dalton Corporation
Corporate Office
P.O. Box 230
Warsaw, IN 46581-0230
Attention: K.L. Davidson
Telecopy No.: (219) 268-2731
With copies (which shall not constitute notice to Company or Seller) to:
Dutton & Overman, P.C.
710 Century Building
36 South Pennsylvania Street
Indianapolis, IN 46204
Attention: Carl D. Overman
Telecopy No.: (317) 633-1494
and
Ludwig Goldberg Krenzel
50 California Street
36th Floor
San Francisco, CA 94111
Attention: Ronald L. Ludwig
Telecopy No.: (415) 433-6496
12.5 Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement.
12.6 Entire Agreement; Amendments and Notices. This Agreement
supersedes all prior agreements between the parties with respect to its subject
matter and constitutes (along with the documents referred to in this Agreement)
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended
except by a written agreement executed on behalf of all the parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
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12.7 Assignments, Successors, And No Third-Party Rights. Neither party
may assign any of its rights under this Agreement without the prior written
consent of the other Parties, except that Buyer may, without any such consent or
any notice to Company or Seller, assign, directly or indirectly, any or all of
its rights and obligations under this Agreement to any of its Affiliates, to any
Person which provides financing to the Buyer or any of its Subsidiaries or to
any subsequent purchaser of the Buyer or any of its Subsidiaries or Affiliates
(whether by merger, consolidation, sale of stock, sale of assets or otherwise).
Subject to the preceding sentence, this Agreement will apply to, be binding in
all respects upon, and inure to the benefit of the successors and permitted
assigns of the Parties. Nothing expressed or referred to in this Agreement will
be construed to give any person other than the Parties to this Agreement any
legal or equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the Parties
to this Agreement and their successors and assigns.
12.8 Severability. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
12.9 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience of reference only and are not intended to
and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement.
12.10 Time Of Essence. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence. Whenever the
last day for the exercise of any privilege or the discharge of any duty
hereunder shall fall upon any day which is not a business day, the party having
such privilege or duty may exercise such privilege or discharge such duty on the
next succeeding business day.
12.11 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO THE CHOICE OF LAW OR CONFLICTS OF LAW PRINCIPLES THEREOF. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY FORUM NON CONVENIENS, WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
12.12 Specific Performance. Each of the Buyer, the Company and Seller
acknowledges and agrees that the other party would be damaged irreparably in the
event any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each party
agrees that the other party shall be entitled to an injunction
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or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in any
action instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy to
which they may be entitled, at law or in equity.
12.13 Waiver of Jury Trial. Each of the parties hereto waives to the
fullest extent permitted by law any right it may have to trial by jury in
respect of any claim, demand, action or cause of action based on, or arising out
of, under or in connection with this Agreement, or any course of conduct, course
of dealing, verbal or written statement or action of any party hereto, in each
case whether now existing or hereafter arising, and whether in contract, tort,
equity or otherwise. The parties to this Agreement each hereby agrees that any
such claim, demand, action or cause of action shall be decided by court trial
without a jury and that the parties to this Agreement may file an original
counterpart of a copy of this Agreement with any court as evidence of the
consent of the parties hereto to the waiver of their right to trial by jury.
12.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
* * * *
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
DALTON CORPORATION
By:
---------------------------------
Name:
Title
DALTON CORPORATION EMPLOYEE
STOCK OWNERSHIP PLAN AND TRUST
By:
---------------------------------
Name:
Title
NEENAH FOUNDRY COMPANY
By:
---------------------------------
Name:
Title
<PAGE> 1
CONFORMED COPY
NEENAH FOUNDRY COMPANY
NFC CASTINGS, INC.
$245,000,000
Credit Agreement
Dated as of April 30, 1997,
as Amended and Restated as of
September 12, 1997, as of April 3, 1998,
and as of
September 8, 1998
CHASE SECURITIES INC.
AS ARRANGER
THE CHASE MANHATTAN BANK
AS ADMINISTRATIVE AGENT
[CHASE LOGO]
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions
<S> <C> <C>
SECTION 1.01. Definitions............................................................... 1
SECTION 1.02. Terms Generally........................................................... 20
ARTICLE II
The Credits
SECTION 2.01. Outstanding Term Loans; Commitments....................................... 21
SECTION 2.02. Loans..................................................................... 21
SECTION 2.03. Borrowing Procedure....................................................... 22
SECTION 2.04. Evidence of Debt; Repayment of Loans...................................... 23
SECTION 2.05. Fees...................................................................... 23
SECTION 2.06. Interest on Loans......................................................... 24
SECTION 2.07. Default Interest.......................................................... 24
SECTION 2.08. Alternate Rate of Interest................................................ 24
SECTION 2.09. Termination and Reduction of Commitments.................................. 25
SECTION 2.10. Conversion and Continuation of Borrowings................................. 25
SECTION 2.11. Repayment of Term Borrowings and Acquisition Borrowings................... 26
SECTION 2.12. Optional Prepayment....................................................... 28
SECTION 2.13. Mandatory Prepayments..................................................... 28
SECTION 2.14. Reserve Requirements; Change in Circumstances............................. 30
SECTION 2.15. Change in Legality........................................................ 31
SECTION 2.16. Indemnity................................................................. 32
SECTION 2.17. Pro Rata Treatment........................................................ 32
SECTION 2.18. Sharing of Setoffs........................................................ 32
SECTION 2.19. Payments.................................................................. 33
SECTION 2.20. Taxes..................................................................... 33
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate........................................................ 34
SECTION 2.22. Letters of Credit......................................................... 35
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...................................................... 38
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.02. Authorization............................................................. 38
SECTION 3.03. Enforceability............................................................ 38
SECTION 3.04. Governmental Approvals.................................................... 38
SECTION 3.05. Financial Statements...................................................... 39
SECTION 3.06. No Material Adverse Change................................................ 39
SECTION 3.07. Title to Properties; Possession Under Leases.............................. 39
SECTION 3.08. Subsidiaries.............................................................. 40
SECTION 3.09. Litigation; Compliance with Laws.......................................... 40
SECTION 3.10. Agreements................................................................ 40
SECTION 3.11. Federal Reserve Regulations............................................... 40
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act................ 40
SECTION 3.13. Use of Proceeds........................................................... 40
SECTION 3.14. Tax Returns............................................................... 41
SECTION 3.15. No Material Misstatements................................................. 41
SECTION 3.16. ERISA..................................................................... 41
SECTION 3.17. Environmental Matters..................................................... 41
SECTION 3.18. Insurance................................................................. 42
SECTION 3.19. Security Documents........................................................ 42
SECTION 3.20. Location of Real Property and Leased Premises............................. 42
SECTION 3.21. Labor Matters............................................................. 43
SECTION 3.22. Solvency.................................................................. 43
SECTION 3.23. Year 2000 Compliance...................................................... 43
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events......................................................... 43
SECTION 4.02. First Credit Event........................................................ 44
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties...................................... 47
SECTION 5.02. Insurance................................................................. 47
SECTION 5.03. Obligations and Taxes..................................................... 48
SECTION 5.04 Financial Statements, Reports, etc........................................ 48
SECTION 5.05. Litigation and Other Notices.............................................. 49
SECTION 5.06. Maintaining Records; Access to Properties and Inspections................. 50
SECTION 5.07. Use of Proceeds........................................................... 50
SECTION 5.08. Compliance with Environmental Laws........................................ 50
SECTION 5.09. Preparation of Environmental Reports...................................... 50
SECTION 5.10. [Intentionally Omitted]................................................... 50
SECTION 5.11. Further Assurances........................................................ 50
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
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ARTICLE VI
Negative Covenants
<S> <C> <C>
SECTION 6.01. Indebtedness.............................................................. 51
SECTION 6.02. Liens..................................................................... 52
SECTION 6.03. Sale and Lease-Back Transactions.......................................... 53
SECTION 6.04. Investments, Loans and Advances........................................... 53
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions................. 54
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends........................................... 55
SECTION 6.07. Transactions with Affiliates.............................................. 56
SECTION 6.08. Business of Borrower and Subsidiaries..................................... 56
SECTION 6.09. Other Indebtedness and Agreements......................................... 56
SECTION 6.10. Capital Expenditures...................................................... 56
SECTION 6.11. Consolidated Leverage Ratio............................................... 57
SECTION 6.12. Consolidated Net Worth.................................................... 57
SECTION 6.13. Consolidated Interest Coverage Ratio...................................... 57
SECTION 6.14. Fiscal Year............................................................... 57
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices................................................................... 61
SECTION 9.02. Survival of Agreement..................................................... 61
SECTION 9.03. Binding Effect............................................................ 62
SECTION 9.04. Successors and Assigns.................................................... 62
SECTION 9.05. Expenses; Indemnity....................................................... 64
SECTION 9.06. Right of Setoff........................................................... 65
SECTION 9.07. Applicable Law............................................................ 65
SECTION 9.08. Waivers; Amendment........................................................ 65
SECTION 9.09. Interest Rate Limitation.................................................. 66
SECTION 9.10. Entire Agreement.......................................................... 67
SECTION 9.11. WAIVER OF JURY TRIAL...................................................... 67
SECTION 9.12. Severability.............................................................. 67
SECTION 9.13. Counterparts.............................................................. 67
SECTION 9.14. Headings.................................................................. 67
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 9.15. Jurisdiction; Consent to Service of Process................................. 67
SECTION 9.16. Confidentiality............................................................. 68
SECTION 9.17. Termination................................................................. 68
SCHEDULES:
SCHEDULE 1.01(A) -- SUBSIDIARY GUARANTORS
SCHEDULE 2.01 -- LENDERS AND COMMITMENTS
SCHEDULE 3.07(D) -- CONTRACTUAL RIGHTS REGARDING MORTGAGED PROPERTY
SCHEDULE 3.08 -- SUBSIDIARIES
SCHEDULE 3.09(A) -- LITIGATION
SCHEDULE 3.09(C) -- CERTIFICATES OF OCCUPANCY
SCHEDULE 3.10 -- AGREEMENTS AND INSTRUMENTS
SCHEDULE 3.17 -- ENVIRONMENTAL MATTERS
SCHEDULE 3.18 -- INSURANCE
SCHEDULE 3.19(D) -- FILING OFFICES-- MORTGAGES
SCHEDULE 3.20(A) -- MORTGAGED PROPERTIES
SCHEDULE 3.20(B) -- LEASED PROPERTIES
SCHEDULE 4.02(A) -- LOCAL COUNSEL
SCHEDULE 6.01 -- EXISTING INDEBTEDNESS
SCHEDULE 6.02 -- EXISTING LIENS
SCHEDULE 6.07 -- TRANSACTIONS WITH AFFILIATES
EXHIBITS:
EXHIBIT A -- FORM OF ADMINISTRATIVE QUESTIONNAIRE
EXHIBIT B -- FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT C -- FORM OF BORROWING REQUEST
EXHIBIT D -- FORM OF INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
EXHIBIT E-1 -- FORM OF MORTGAGES
EXHIBIT E-2 -- FORM OF AMENDMENTS TO MORTGAGES
EXHIBIT F -- FORM OF PARENT GUARANTEE AGREEMENT
EXHIBIT G -- FORM OF PLEDGE AGREEMENT
EXHIBIT H -- FORM OF SECURITY AGREEMENT
EXHIBIT I -- FORM OF SUBSIDIARY GUARANTEE AGREEMENT
EXHIBIT J-1 -- FORM OF OPINION OF KIRKLAND & ELLIS
EXHIBIT J-2 -- FORM OF OPINION OF LOCAL COUNSEL
EXHIBIT K -- FORM OF SELLER NOTE
</TABLE>
<PAGE> 6
CONFORMED COPY
CREDIT AGREEMENT dated as of April 30, 1997, as
amended and restated as of September 12, 1997, as of April
3, 1998 (the "Existing Credit Agreement"), and as of
September 8, 1998, among NEENAH FOUNDRY COMPANY (formerly
known as Neenah Corporation), a Wisconsin corporation (the
"Borrower"), NFC CASTINGS, INC., a Delaware corporation
("Holdings"), the Lenders (as defined in Article I), and
THE CHASE MANHATTAN BANK, a New York banking corporation,
as issuing bank (in such capacity, the "Issuing Bank"), as
administrative agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders.
Pursuant to the Existing Credit Agreement, the Lenders have made Tranche A
Term Loans (such term and each other capitalized term used but not defined
herein having the meaning given it in Article I), Tranche B Term Loans and
Revolving Loans to the Borrower and the Issuing Bank has issued Letters of
Credit for the account of the Borrower. A portion of the proceeds of the Tranche
A Term Loans have been used to consummate the ACP Contribution and a portion of
such proceeds will be used to pay the Purchase Price. Holdings and the Borrower
have requested the Lenders to extend additional credit to the Borrower in the
form of (a) Additional Tranche B Term Loans on the Restatement Closing Date in
an aggregate principal amount not in excess of $70,000,000, (b) Acquisition
Loans at any time and from time to time during the Acquisition Loan Availability
Period, in an aggregate principal amount at any time outstanding not in excess
of $50,000,000, and (c) Revolving Loans at any time and from time to time prior
to the Revolving Credit Maturity Date, in an aggregate principal amount at any
time outstanding not in excess of $50,000,000. Holdings and the Borrower have
requested the Issuing Bank to issue letters of credit, in an aggregate face
amount at any time outstanding not in excess of $15,000,000, to support payment
obligations incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Additional Tranche B Term Loans and the
Acquisition Loans to be made on the Restatement Closing Date will be used solely
to pay the Purchase Price and related fees and expenses. The proceeds of the
Revolving Loans are to be used solely for general corporate purposes in the
ordinary course of the Borrower's business, including Permitted Acquisitions.
Holdings and the Borrower have also requested that the Existing Credit
Agreement be amended and restated in the form hereof (this "Agreement").
The Lenders are willing to extend such credit to the Borrower, the Issuing
Bank is willing to issue letters of credit for the account of the Borrower and
its Subsidiaries and the Required Lenders
<PAGE> 7
2
are willing to amend and restate the Existing Credit Agreement, in each
case on the terms and subject to the conditions set forth herein. Accordingly,
the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Acquisition Borrowing" shall mean a Borrowing comprised of ABR
Acquisition Loans.
"ABR Acquisition Loan" shall mean any Acquisition Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or ABR
Acquisition Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Account" shall mean any right to payment for goods sold or for services
rendered, whether or not it has been earned by performance.
"ACP" shall mean Advanced Cast Products, Inc., a Delaware corporation.
"ACP Contribution" shall mean the contribution by ACP Holdings on September
8, 1998, of all the issued and outstanding capital stock of ACP to the Borrower,
the repayment at such time of substantially all the Indebtedness of ACP (other
than the Subordinated Promissory Notes) and the assumption by Holdings of all
obligations with respect to the Subordinated Promissory Notes.
"ACP Holdings" shall mean ACP Holding Company, a Delaware corporation.
"ACP Merger" shall have the meaning assigned to such term in the definition
of the term "Change in Control".
"ACP Products" shall mean ACP Products, L.L.C., a Delaware limited
liability company.
<PAGE> 8
3
"Acquisition" shall mean the acquisition by the Borrower of all the issued
and outstanding capital stock of Dalton pursuant to the Stock Purchase
Agreement.
"Acquisition Borrowing" shall mean a Borrowing comprised of Acquisition
Loans.
"Acquisition Loan Availability Period" shall mean the period commencing on
and including the Restatement Closing Date and ending on and including the
second anniversary of the Restatement Closing Date.
"Acquisition Loan Commitment" shall mean, with respect to each Additional
Lender, the commitment of such Additional Lender to make Acquisition Loans
hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Additional Lender assumed its Acquisition Loan
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09, (b) reduced or increased from time to time pursuant to
assignments by or to such Additional Lender pursuant to Section 9.04 and (c)
reinstated from time to time pursuant to Section 2.01.
"Acquisition Loan Lenders" shall mean the Lenders having Acquisition Loan
Commitments or outstanding Acquisition Loans.
"Acquisition Loan Maturity Date" shall mean June 30, 2004.
"Acquisition Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(iv).
"Acquisition Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01. Each Acquisition Loan shall be
either a Eurodollar Acquisition Loan or an ABR Acquisition Loan.
"Additional Lenders" shall mean the Additional Tranche B Lenders and the
Acquisition Loan Lenders.
"Additional Loans" shall mean the Additional Tranche B Term Loans and the
Acquisition Loans.
"Additional Tranche B Commitment" shall mean, with respect to each
Additional Lender, the commitment of such Additional Lender to make Additional
Tranche B Term Loans to the Borrower as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Additional Lender assumed its
Additional Tranche B Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 or (b) reduced or increased from time
to time pursuant to assignments by or to such Additional Lender pursuant to
Section 9.04.
"Additional Tranche B Lenders" shall mean the Lenders having Additional
Tranche B Commitments or outstanding Additional Tranche B Term Loans.
"Additional Tranche B Term Loan Repayment Date" shall have the meaning set
forth in Section 2.11(a)(iii).
<PAGE> 9
4
"Additional Tranche B Maturity Date" shall mean September 30, 2005.
"Additional Tranche B Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to clause (a) of Section 2.01. Each Additional
Tranche B Term Loan shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 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% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) or (c),
or both, of the preceding sentence, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
The term "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective. The term "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate.
"Applicable Percentage" shall mean, for any day, with respect to any Loan,
or with respect to the Commitment Fees, as the case may be, the applicable
percentage set forth below under the caption "Eurodollar Spread--Tranche A Term
Loans, Revolving Loans and Acquisition Loans", "Eurodollar Spread--Tranche B
Term Loans and Additional Tranche B Term Loans", "ABR Spread--Tranche A Term
Loans, Revolving Loans and Acquisition Loans", "ABR Spread--Tranche B Term Loans
and Additional Tranche B Term Loans" or "Fee Percentage", as the case may be,
based upon the Consolidated Leverage Ratio as of the relevant date of
determination:
<PAGE> 10
5
<TABLE>
<CAPTION>
===========================================================================================================
Eurodollar ABR Spread-
Eurodollar ABR Spread- Spread- Tranche B
Spread- Tranche A Term Tranche B Term Loans
Tranche A Term Loans, Term Loans and and
Loans, Revolving Revolving Loans Additional Additional
Consolidated Leverage Loans and and Acquisition Tranche B Term Tranche B Fee
Ratio Acquisition Loans Loans Loans Term Loans Percentage
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Category 1 2.50% 1.50% 2.75% 1.75% .50%
- ----------
Equal to or greater
than 4.50 to 1.00
- -----------------------------------------------------------------------------------------------------------
Category 2 2.25% 1.25% 2.50% 1.50% .50%
- ----------
Equal to or greater
than 4.00 to 1.00, but
less than 4.50 to 1.00
- -----------------------------------------------------------------------------------------------------------
Category 3 2.00% 1.00% 2.25% 1.25% .50%
- ----------
Equal to or greater
than 3.50 to 1.00, but
less than 4.00 to 1.00
- -----------------------------------------------------------------------------------------------------------
Category 4 1.75% .75% 2.00% 1.00% .375%
- ----------
Equal to or greater
than 3.00 to 1.00, but
less than 3.50 to 1.00
- -----------------------------------------------------------------------------------------------------------
Category 5 1.50% .50% 2.00% 1.00% .375%
- ----------
Less than 3.00 to 1.00
===========================================================================================================
</TABLE>
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Administrative Agent of the financial statements and certificates
required by Section 5.04(a) or (b) indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b), or (b) at any
time after the occurrence and during the continuance of an Event of Default, the
Consolidated Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable
<PAGE> 11
6
Percentage. Notwithstanding the foregoing, until December 4, 1998, the
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Applicable Percentage.
"Approved Fund" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Ashland" shall mean Dalton Corporation, Ashland Manufacturing Facility, an
indirect Subsidiary of the Borrower, after giving effect to the Acquisition.
"Ashland Earn-Out Obligation" shall mean the obligations of Dalton pursuant
to Section 3 of the Asset Purchase and Sale Agreement dated as of June 27, 1995,
between Ashland Castings Corporation and DF Acquisition Co.
"Assessment Rate" shall mean for any date the annual rate (rounded upwards,
if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor thereto) for insurance
by such Corporation (or such successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger or otherwise) by the Borrower or any of the Subsidiaries to any Person
other than the Borrower or any Subsidiary Guarantor of (a) any capital stock of
any of the Subsidiaries (other than directors' qualifying shares) or (b) any
other assets of the Borrower or any of the Subsidiaries (other than (i)
inventory, excess, damaged, obsolete or worn out assets, scrap, Permitted
Investments and licenses of patterns developed for customers of the Borrower or
any Subsidiary, in each case disposed of in the ordinary course of business,
(ii) assets transferred for an aggregate purchase price not exceeding $3,000,000
in any fiscal year of the Borrower in connection with the replacement or upgrade
of a tangible asset of the Borrower or any Subsidiary Guarantor within 180 days
of such transfer, (iii) dispositions resulting in Casualty Proceeds or
Condemnation Proceeds or (iv) dispositions resulting in other insurance
settlements or condemnation awards not exceeding $100,000 in any fiscal year of
the business), provided that any asset sale or series of related asset sales
described in clause (b) above having a value not in excess of $100,000 shall be
deemed not to be an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower Tax Amount" shall mean, with respect to any fiscal quarter, the
amount paid by Holdings, the Borrower and the Subsidiaries to ACP Holdings in
respect of taxes, which amount shall not be greater than the amount of taxes
that would be required to be paid in cash by any of Holdings, the Borrower and
the Subsidiaries if Holdings, the Borrower and the Subsidiaries were not
consolidated with ACP Holdings and its other subsidiaries for tax purposes.
<PAGE> 12
7
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any Person shall mean any and all shares, interests
(including membership and economic interests in a limited liability company),
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity prior to
such conversion.
"Casualty" shall have the meaning set forth in each of the Mortgages.
"Casualty Proceeds" shall have the meaning set forth in each of the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) prior to the
first fully distributed public offering of Voting Stock of Holdings (or, in the
event (i) Holdings shall merge with and into ACP Holdings or the Borrower in a
transaction permitted by Section 6.05 (a "Holdings Merger"), ACP Holdings, or
(ii) following a Holdings Merger, ACP Holdings shall merge with and into ACP
Products or the Borrower in a transaction permitted by Section 6.05 (an "ACP
Holdings Merger"), ACP Products), the Permitted Holders shall cease to own
directly or indirectly (including by way of direct or indirect ownership of
economic interests in ACP Products), beneficially or of record, shares
representing at least 51% on a fully diluted, as if converted, basis of the
aggregate ordinary voting power represented by the issued and outstanding Voting
Stock of Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or
(ii) an ACP Holdings Merger, ACP Products), (b) after the first fully
distributed public offering of Voting Stock of Holdings (or, in the event of (i)
a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products),
the Permitted Holders shall cease to own directly or indirectly (including by
way of direct or indirect ownership of economic interests in ACP Products),
beneficially or of record, shares representing at least 25% on a fully diluted,
as if converted, basis of the aggregate ordinary voting power represented by the
issued and outstanding Voting Stock of Holdings (or, in the event of (i) a
Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products),
(c) after the first fully distributed public offering of Voting Stock of
Holdings (or, in the event of (i) a Holdings Merger, ACP Holdings, or (ii) an
ACP Holdings Merger, ACP Products), any Person or group (within the meaning of
Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
hereof) other than the Permitted Holders shall own directly or indirectly,
beneficially or of record, a percentage of the
<PAGE> 13
8
issued and outstanding Voting Stock of Holdings (or, in the event of (i) a
Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) on
a fully diluted, as if converted, basis having ordinary voting power in excess
of the percentage then owned, directly or indirectly (including by way of direct
or indirect ownership of economic interests in ACP Products), beneficially and
of record, on a fully diluted, as if converted, basis, by the Permitted Holders;
(d) a majority of the seats (except in the case of any vacancy for 30 days or
less resulting from the death or resignation of any director of Holdings (or, in
the event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings
Merger, ACP Products)) on the board of directors of Holdings (or, in the event
of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP
Products) shall at any time be occupied by persons who were neither (i)
nominated by the board of directors of Holdings, ACP Holdings or ACP Products,
as the case may be, nor (ii) appointed by directors so nominated; (e) any change
in control (or similar event, however denominated) with respect to Holdings (or,
in the event of (i) a Holdings Merger, ACP Holdings, or (ii) an ACP Holdings
Merger, ACP Products) or the Borrower shall occur under and as defined in any
indenture or agreement in respect of Indebtedness to which any such Person or
any Subsidiary is a party; or (f) Holdings (or in the event of (i) a Holdings
Merger, ACP Holdings, or (ii) an ACP Holdings Merger, ACP Products) shall cease
to own, beneficially and of record, 100% of the issued and outstanding Capital
Stock of the Borrower.
"Citicorp" shall mean Citicorp, a Delaware corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Additional Tranche B Commitment and Acquisition
Loan Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Condemnation" shall have the meaning set forth in each of the Mortgages.
"Condemnation Proceeds" shall have the meaning set forth in each of the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated August 1998.
"Consolidated Capital Expenditures" shall mean, for any period, the sum of
(a) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by the Borrower or any of the
Subsidiaries during such period that, in accordance with GAAP, are or should be
included in "additions to property, plant and equipment" or similar items
reflected in the consolidated statement of cash flows of the Borrower and the
Subsidiaries for such period (including the amount of assets leased in
connection with any Capital Lease Obligation), and (b) to the extent not
included pursuant to clause (a) above, the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a liability) by the
Borrower or any Subsidiary to acquire, by purchase or otherwise, the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person (other than expenditures for Permitted Acquisitions); provided,
however, that, for purposes of Section 6.10 only, to the extent the Borrower or
a Subsidiary uses,
<PAGE> 14
9
within 180 days of the receipt thereof, (i) the proceeds of the disposition
of assets described in clause (b)(i), (ii) or (iv) of the definition of the term
"Asset Sale" or (ii) Casualty Proceeds or Condemnation Proceeds to purchase,
construct, repair, lease or replace any property, plant or equipment, the amount
of the related Consolidated Capital Expenditure shall be reduced by the amount
of such proceeds.
"Consolidated Current Assets" shall mean, as of any date of determination,
the total assets that would properly be classified as current assets (other than
cash and cash equivalents) of the Borrower and the Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans)
that would properly be classified as current liabilities of the Borrower and the
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, to the extent deducted in computing such Consolidated Net
Income, (a) the sum of (i) all Federal, state, local and foreign taxes, (ii)
Consolidated Net Interest Expense and (iii) depreciation, depletion,
amortization of intangibles and other non-cash charges or non-cash losses
(including non-cash transaction expenses and the amortization of debt
discounts), minus, to the extent added in computing such Consolidated Net
Income, (b) any non-cash income or non-cash gains, all as determined on a
consolidated basis with respect to the Borrower and the Subsidiaries in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio for such period of (a) Consolidated EBITDA to (b) Consolidated Net
Interest Expense determined in each case for the period of four consecutive
fiscal quarters ending on the last day of such period.
"Consolidated Leverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Net Debt on such date to (b) Consolidated EBITDA for the period
of four consecutive fiscal quarters ending on such date (including the
Consolidated EBITDA for such four fiscal quarters of any Subsidiary acquired
during such four fiscal quarters constituting a Permitted Acquisition pursuant
to Section 6.04(g)).
"Consolidated Net Income" shall mean, for any period, net income or loss of
the Borrower and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income of any Person in which any other Person (other than the Borrower or any
of the Subsidiaries or any director holding qualifying shares in accordance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any wholly
owned Subsidiary by such Person during such period, (b) the income (or loss) 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 the Subsidiaries or
the date that Person's assets are acquired by the Borrower or any of the
Subsidiaries (except, in the case of any Subsidiary acquired during such period
constituting a Permitted Acquisition pursuant to Section 6.04(g), which shall
not be excluded for purposes of determining Consolidated EBITDA for purposes of
the Consolidated Leverage Ratio and the Senior Debt Leverage Ratio only), (c)
the
<PAGE> 15
10
income of any Subsidiary of the Borrower to the extent that the declaration
or payment of dividends or similar distributions by the Subsidiary of that
income is not at the time permitted by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after tax gains
or losses attributable to sales of assets out of the ordinary course of business
and (e) (to the extent not included in clauses (a) through (d) above) any
non-cash extraordinary gains or non-cash extraordinary losses.
"Consolidated Net Interest Expense" shall mean, for any period, the gross
interest expense of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, including the portion of any
payments or accruals with respect to Capital Lease Obligations that are
allocable to interest expense in accordance with GAAP, but excluding (a) the
amortization of debt discounts and (b) the amortization of all fees (including
fees with respect to Interest Rate Protection Agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
in accordance with GAAP (including fees and expenses in connection with the
Transactions and the Original Credit Event) less the total interest income of
the Borrower and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net payments made or
received by the Borrower or any Subsidiary with respect to Interest Rate
Protection Agreements.
"Consolidated Net Worth" shall mean, as of any date of determination, the
consolidated stockholder's equity of the Borrower and the Subsidiaries at such
date, as determined on a consolidated basis in accordance with GAAP; provided,
however, that common stock or preferred stock (a) with respect to which no
payments that would violate Section 6.06 are required to be made and (b) that is
redeemable not earlier than April 30, 2009 shall be included regardless of its
classification under GAAP.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CVC" shall mean Citicorp Venture Capital, Ltd., a New York corporation.
"Dalton" shall mean Dalton Corporation, an Indiana corporation.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Design Technologies" shall mean Design Technologies International, an
American Polish company.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
<PAGE> 16
11
"Earn-Out Obligation" shall mean any unsecured contingent liability of the
Borrower or any Subsidiary owed to any seller in connection with any Permitted
Acquisition permitted pursuant to Section 6.04(g) by the Borrower or any
Subsidiary that (a) constitutes a portion of the purchase price for such
Permitted Acquisition but is not an amount certain on the date of incurrence
thereof and is not subject to any right of acceleration by such seller or (b) is
only payable upon the achievement of performance standards by the property
acquired in such Permitted Acquisition and in an amount based upon such
achievement.
"Environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any Person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the Environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-
sudden, accidental or non-accidental Releases), (b) exposure to any Hazardous
Material, (c) the presence, use, handling, transportation, storage, treatment or
disposal of any Hazardous Material or (d) the violation or alleged violation of
any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
Environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. Sections 7401 et seq., the Toxic
Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sections 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., the Hazardous Materials Transportation Act,
49 U.S.C. Sections 5101 et seq., and any similar or implementing state or local
law, and all amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean the sale or issuance by ACP Products, ACP
Holdings or Holdings of any Capital Stock to any Person other than the Borrower
or any of its Subsidiaries.
<PAGE> 17
12
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar Acquisition Borrowing" shall mean a Borrowing comprised of
Eurodollar Acquisition Loans.
"Eurodollar Acquisition Loan" shall mean any Acquisition Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan, Eurodollar Term
Loan or Eurodollar Acquisition Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of Eurodollar
Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
<PAGE> 18
13
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary cash income of the Borrower and its consolidated
Subsidiaries, if any, during such fiscal year and not included in Consolidated
EBITDA and (iii) reductions to non-cash working capital of the Borrower and its
consolidated Subsidiaries for such fiscal year (i.e., the decrease, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year); provided that such working capital as
of the first day of such fiscal year shall be determined on a pro forma basis
adjusted to give effect (as if such event had occurred on the first day of such
fiscal year) to each Permitted Acquisition made pursuant to Section 6.04(g)
during such fiscal year over (b) the sum, without duplication, of (i) the amount
of any cash income taxes payable by the Borrower and its consolidated
Subsidiaries with respect to such fiscal year, (ii) cash interest paid by the
Borrower and its consolidated Subsidiaries during such fiscal year, (iii)
Consolidated Capital Expenditures made in cash in accordance with Section 6.10
during such fiscal year, (iv) scheduled principal repayments of Indebtedness
made by the Borrower and its consolidated Subsidiaries during such fiscal year,
(v) optional and mandatory prepayments of the principal of Loans during such
fiscal year, but only to the extent that such prepayments by their terms cannot
be reborrowed or redrawn and do not occur in connection with a refinancing of
all or any portion of the Loans, (vi) extraordinary cash expenses paid by the
Borrower and its consolidated Subsidiaries, if any, during such fiscal year and
not included in Consolidated EBITDA and (vii) additions to non-cash working
capital for such fiscal year (i.e., the increase, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such fiscal year); provided that such working capital as of the first day
of such fiscal year shall be determined on a pro forma basis adjusted to give
effect (as if such event had occurred on the first day of such fiscal year) to
each Permitted Acquisition made pursuant to Section 6.04(g) during such fiscal
year provided, further, that, to the extent otherwise included therein, the Net
Cash Proceeds of Asset Sales and dispositions resulting in Casualty Proceeds or
Condemnation Proceeds shall be excluded from the calculation of Excess Cash
Flow.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.20(a).
"Federal Funds Effective Rate" shall mean, 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 that is a Business Day, the average
<PAGE> 19
14
of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fee Letter" shall mean the Fee Letter dated August 3, 1998, between the
Borrower and The Chase Manhattan Bank.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees, the
L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such
corporation.
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"FSC" shall mean Neenah Foundry Foreign Sales Corporation, a Barbados
corporation, and a wholly owned Subsidiary of the Borrower.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and the
Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical
<PAGE> 20
15
wastes and all other substances or wastes of any nature regulated pursuant
to any Environmental Law.
"Holdings Merger" shall have the meaning assigned to such term in the
definition of the term "Change in Control".
"Indebtedness" of any Person shall mean, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable, accrued
obligations incurred in the ordinary course of business and any unaccrued
Earn-Out Obligation), (f) all Indebtedness of others of the type described in
clauses (a) through (e) and (g) through (j) of this definition secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements and (j) all obligations of
such Person as an account party in respect of letters of credit and bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any partnership in which such Person is a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, the date of any prepayment of such Borrowing
or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Revolving Credit
Maturity Date, the Tranche A Maturity Date, the Tranche B Maturity Date, the
Additional Tranche B Maturity Date or the Acquisition Loan Maturity Date, as
applicable, and (iii) the date such Borrowing is converted to a Borrowing of a
different Type in accordance with Section 2.10 or repaid or prepaid in
accordance with Section 2.11, 2.12 or 2.13; provided, however, that if any
Interest
<PAGE> 21
16
Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the
first day of an Interest Period to but excluding the last day of such
Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
mean its Pro Rata Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of the Telerate Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
so available at such time for any reason, the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits approximately equal in principal amount to the Administrative Agent's
portion of such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
<PAGE> 22
17
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the Acquisition
Loans.
"Management Investors" shall mean the officers, directors and employees of
ACP Holdings, ACP Products, Holdings, the Borrower or any Subsidiary of the
Borrower who own Voting Stock of ACP Holdings, ACP Products, Holdings or the
Borrower on or after the Restatement Closing Date.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries, taken as a whole, (b) material impairment of
the ability of the Borrower or any other Loan Party to perform any of its
obligations under any Loan Document to which it is or will be a party or (c)
material impairment of the rights of or benefits available to the Lenders under
any Loan Document.
"Merger Agreement" shall mean the Agreement and Plan of Reorganization
dated as of November 20, 1996, by and among Holdings, the Borrower and Neenah
Corporation, as the same may be amended, restated, modified or supplemented from
time to time prior to the date hereof or in accordance with Section 6.09(a).
"Mortgaged Properties" shall mean the owned real properties of the Loan
Parties specified on Schedule 3.20(a).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents and
any amendments thereto delivered pursuant to clause (i) of Section 4.02(j) or
pursuant to Section 5.11, each substantially in the form of Exhibit E-1 and, if
applicable, as amended by an amendment substantially in the form of Exhibit E-
2.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of non-cash consideration initially received and including all
insurance settlements and condemnation awards in any fiscal year of the Borrower
in excess of $100,000), net of (i) selling expenses (including reasonable
broker's fees or commissions, legal fees, transfer and similar taxes and the
Borrower's good faith estimate of income taxes paid or payable in connection
with the receipt of such cash
<PAGE> 23
18
proceeds), (ii) amounts provided as a reserve, in accordance with GAAP,
against any liabilities under any indemnification obligations associated with
such Asset Sale (provided that, to the extent and at the time any such amounts
are released from such reserve, such amounts shall constitute Net Cash Proceeds)
and (iii) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is repaid with such proceeds (other than any
such Indebtedness assumed by the purchaser of such asset) and (b) with respect
to any issuance or disposition of Indebtedness, the cash proceeds thereof, net
of all taxes and customary fees, commissions, costs and other expenses incurred
in connection therewith.
"Net Debt" shall mean, at any date and without duplication, (a) the
aggregate amount of all Indebtedness of the Borrower and the Subsidiaries on a
consolidated basis at such date (other than any Indebtedness described in clause
(i) or (j) of the definition of the term "Indebtedness") minus (b) the aggregate
amount of all Permitted Investments as shown on the Borrower's consolidated
balance sheet on such date.
"Obligations" shall mean all obligations defined as "Obligations" in the
Guarantee Agreements and the Security Documents.
"Original Closing Date" shall mean April 30, 1997.
"Original Credit Event" shall mean (a) the initial extensions of credit on
each of the Original Closing Date and April 3, 1998 and the other transactions
under the Existing Credit Agreement and (b) the issuance of the Senior
Subordinated Notes.
"Other Taxes" shall mean 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.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit F, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Acquisitions" shall mean acquisitions of not less than 100% of
the outstanding capital stock of any corporation, a division of any corporation
or any similar business unit (or of substantially all the assets and business of
any of the foregoing) engaged in a Related Business, so long as in the case of
each such acquisition of capital stock, such acquisition was not preceded by an
unsolicited tender offer for such capital stock by Holdings or any of its
Affiliates.
"Permitted Holders" shall mean (i) CVC and its Affiliates and Permitted
Transferees and (ii) the Management Investors and their Permitted Transferees.
<PAGE> 24
19
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $250,000,000;
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000; and
(e) shares of funds registered under the Investment Company
Act of 1940, as amended, that have assets of at least $100,000,000 and
invest only in obligations described in clauses (a) through (d) above,
to the extent that such shares are rated by Moody's Investors
Service, Inc. or Standard & Poor's Ratings Service in one of the two
highest rating categories assigned by such agency for shares of such
nature.
"Permitted Transferee" shall mean (a) with respect to CVC (i) Citicorp, any
direct or indirect wholly owned subsidiary of Citicorp, and any officer,
director or employee of CVC, Citicorp or any wholly owned subsidiary of
Citicorp, (ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officers, directors and employees referred to in clause
(a)(i) above or (iii) any trust, corporation or partnership 100% in interest of
the beneficiaries, stockholders or partners of which consists of one or more of
the persons described in clause (a)(i) or (ii) above and (b) with respect to any
officer or employee of ACP Products, ACP Holdings, Holdings, the Borrower or a
Subsidiary, (i) any spouse or lineal descendant (including by adoption and
stepchildren) of such officer or employee and (ii) any trust, corporation or
partnership 100% in interest of the beneficiaries, stockholders or partners of
which consists of such officer or employee, any of the persons described in
clause (b)(i) above or any combination thereof.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
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20
"Pledge Agreement" shall mean the Pledge Agreement, substantially in the
form of Exhibit G, among the Borrower, Holdings, the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties.
"Preferred Stock" as applied to the Capital Stock of any Person, shall mean
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
of Capital Stock of any other class of such Person.
"Properties" shall have the meaning assigned to such term in Section 3.17.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Purchase Price" shall mean approximately $102,000,000, representing the
aggregate cash consideration to be paid by the Borrower in connection with the
Acquisition, subject to adjustment as provided in the Stock Purchase Agreement.
"Qualified Subordinated Debt" shall mean Indebtedness of the Borrower that
(a) requires no payments of principal prior to the date that is 12 months after
the Tranche B Maturity Date, (b) bears interest at a fixed rate which, in the
good faith judgment of the board of directors of the Borrower, is consistent
with the market at the time of issuance for similar Indebtedness, (c) does not
require the Borrower to satisfy any specified financial covenant that is
materially more restrictive for the Borrower than those financial covenants with
respect to the Senior Subordinated Notes and (d) is subordinated to the
Obligations on terms that are no less favorable in any material respect to the
Lenders than those contained in the Senior Subordinated Notes.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Business" shall mean any business of the Borrower and its
Subsidiaries as conducted on the Restatement Closing Date and any business
related, ancillary or complementary thereto.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
abate or in any other way address any Hazardous Material in the Environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
<PAGE> 26
21
endanger public health, welfare or the Environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans, L/C
Exposure and unused Commitments representing at least a majority of the sum of
all Loans outstanding, L/C Exposure and unused Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restatement Closing Date" shall mean September 8, 1998.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender, plus the aggregate amount at such time of such Lender's
L/C Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean April 30, 2002.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall be a
Eurodollar Revolving Loan or an ABR Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially in
the form of Exhibit H, between the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Seller Note" shall mean the promissory note of ACP Holdings in the
aggregate principal amount of $3,850,000, issued by ACP Holdings in connection
with the acquisition of Deeter Foundry, Inc. by the Borrower and in the form of
Exhibit K.
<PAGE> 27
22
"Senior Debt" shall mean, at any date and without duplication, (a) the
aggregate amount of all Net Debt at such date minus (b) to the extent included
therein, the sum of (i) the aggregate amount of all Indebtedness pursuant to the
Senior Subordinated Notes at such date and (ii) the aggregate amount of all
Indebtedness pursuant to Qualified Subordinated Debt at such date.
"Senior Debt Leverage Ratio" shall mean, as of any date of determination
with respect to any Permitted Acquisition, the ratio of (a) Senior Debt as of
such date (after giving pro forma effect to the amount of Senior Debt to be
incurred in connection with such Permitted Acquisition) to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such date
(including the Consolidated EBITDA for such four fiscal quarters of any
Subsidiary acquired during such four fiscal quarters constituting a Permitted
Acquisition pursuant to Section 6.04(g) and after giving pro forma effect (in
accordance with Section 6.04(g)(iii)(B)) to the Consolidated EBITDA of the
Person that is the subject of such Permitted Acquisition).
"Senior Subordinated Notes" shall mean (a) the 11.125% Series B Senior
Subordinated Notes due 2007 of the Borrower, issued on April 30, 1997, in an
aggregate principal amount of $150,000,000 and (b) the 11.125% Series D Senior
Subordinated Notes due 2007 of the Borrower, issued on July 1, 1997, in an
aggregate principal amount of $45,000,000.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject (a)
with respect to the Base CD Rate, for new negotiable nonpersonal time deposits
in dollars of over $100,000 with maturities approximately equal to three months,
and (b) with respect to the Adjusted LIBO Rate, for Eurocurrency Liabilities (as
defined in Regulation D of the Board). Such reserve percentages shall include
those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement dated as
of August 7, 1998, among Dalton, Dalton Corporation Employee Stock Ownership
Plan and Trust and the Borrower.
"Subordinated Promissory Notes" shall mean the 12% Senior Subordinated
Notes due 2003 in the amount of $4,253,063.17 of Holdings, as successor to ACP,
payable to Citicorp Venture Capital Limited dated September 1, 1995, or
securities in the same principal amount issued in exchange therefor on the date
hereof, or such other indebtedness of Holdings with the same material terms,
including subordination, as such Senior Subordinated Notes or preferred stock of
Holdings with terms that are not more disadvantageous to the interests of the
Lenders than the terms of such Senior Subordinated Notes as determined by the
Administrative Agent, in each case issued in lieu thereof.
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"subsidiary" shall mean, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit I, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(a), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term Loans,
Tranche B Term Loans or Additional Tranche B Term Loans.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan Repayment
Dates, the Tranche B Term Loan Repayment Dates and the Additional Tranche B Term
Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans, the Tranche B Term Loans
and the Additional Tranche B Term Loans.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche A Lender" shall mean a Lender with an outstanding Tranche A Term
Loan.
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"Tranche A Maturity Date" shall mean September 30, 2003.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche A
Term Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to the Existing Credit Agreement and described in Section
2.01. Each Tranche A Term Loan shall be either a Eurodollar Term Loan or an ABR
Term Loan.
"Tranche B Lender" shall mean a Lender with an outstanding Tranche B Term
Loan.
"Tranche B Maturity Date" shall mean September 30, 2005.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B
Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to the Existing Credit Agreement and described in Section
2.01. Each Tranche B Term Loan shall be either a Eurodollar Term Loan or an ABR
Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"Voting Stock" of a Person shall mean all classes of Capital Stock of such
Person then outstanding and normally entitled to vote in the election of
directors (or Persons performing similar functions).
"wholly owned Subsidiary" of any Person shall mean a subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such Person or one or
more wholly owned subsidiaries of such Person or by such Person and one or more
wholly owned subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without
<PAGE> 30
25
limitation". All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
Except as otherwise expressly provided herein, (a) any reference in this
Agreement to any Loan Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time and (b) all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided, however, that for purposes of determining
compliance with the covenants contained in Article VI, except as otherwise
provided herein, all accounting terms herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with GAAP as in
effect on the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05(a)
(except to the extent that such financial statements accounted for inventory on
a last-in-first-out basis).
ARTICLE II
The Credits
SECTION 2.01. Outstanding Term Loans; Commitments. The Tranche A Lenders
and the Tranche B Lenders have made Tranche A Term Loans and Tranche B Term
Loans, respectively, to the Borrower pursuant to the Existing Credit Agreement.
On the Restatement Closing Date, the aggregate outstanding principal amount of
each Lender's Tranche A Term Loans and Tranche B Term Loans are as set forth on
Schedule 2.01. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, (a) to make an Additional Tranche B Term Loan to the Borrower
on the Restatement Closing Date in an aggregate principal amount not to exceed
its Additional Tranche B Commitment, (b) to make Acquisition Loans to the
Borrower, at any time and from time to time until the earlier of the termination
of the Acquisition Loan Availability Period and the termination of the
Acquisition Loan Commitment of such Lender in accordance with the terms hereof,
in an aggregate principal amount at any time outstanding that will not to exceed
its Acquisition Loan Commitment, and (c) to make Revolving Loans to the
Borrower, at any time and from time to time on or after the date hereof, and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitment of such Lender in accordance with the terms
hereof, in an aggregate principal amount at any time outstanding that will not
result in such Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Credit Commitment. Within the limits set forth in clauses (b) and (c)
of the preceding sentence and subject to the terms, conditions and limitations
set forth herein, the Borrower may borrow, pay or prepay and reborrow
Acquisition Loans and Revolving Loans. Amounts paid or prepaid in respect of
Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $500,000 and not less than $1,000,000
in the case of Eurodollar Loans, (ii) an integral multiple of $100,000 and not
less than $500,000 in the case of ABR Loans or (iii) in the case of ABR Loans,
equal to the remaining available balance of the applicable Commitments.
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(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than seven Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, credit the amounts so received to an account in the name of the
Borrower, maintained with the Administrative Agent and designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing (in
lieu of interest which would otherwise become due to such Lender pursuant to
Section 2.06) and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request a Borrowing pursuant to which the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City
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time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Revolving Loan of such Lender and such payment
shall be deemed to have reduced the L/C Exposure), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the
Revolving Credit Lenders. The Administrative Agent will promptly pay to the
Issuing Bank any amounts received by it from the Borrower pursuant to Section
2.22(e) prior to the time that any Revolving Credit Lender makes any payment
pursuant to this paragraph (f); any such amounts received by the Administrative
Agent thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the Issuing
Bank, as their interests may appear. If any Revolving Credit Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to Revolving Loans pursuant to Section
2.06(a) (in lieu of interest which would otherwise become due to such Lender
pursuant to Section 2.06), and (ii) in the case of such Lender, for the first
such day, the Federal Funds Effective Rate, and for each day thereafter, the
Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a deemed Borrowing pursuant to Section 2.02(f), as to which this Section
2.03 shall not apply), the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing, an Acquisition Borrowing or a Revolving Credit Borrowing, and whether
such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day), (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the amount
of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing,
the Interest Period with respect thereto; provided, however, that,
notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section
2.02. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Borrowing is specified in any such notice,
then the Borrower shall be deemed to have selected an Interest Period of one
month's duration. The Administrative Agent shall promptly advise the applicable
Lenders of any notice given pursuant to this Section 2.03 (and the contents
thereof), and of each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the principal amount of each Term Loan and Acquisition Loan of such
Lender as provided in Section 2.11 and the then unpaid principal amount of each
Revolving Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such
<PAGE> 33
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Lender from time to time, including the amounts of principal and interest
payable and paid such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event any
Lender shall request a promissory note payable to such Lender and its registered
assigns, the Borrower shall deliver to such Lender such note and the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last day of March, June, September and December
in each year and on each date on which any Commitment of such Lender shall
expire or be terminated as provided herein, a commitment fee (a "Commitment
Fee") equal to the Applicable Percentage set forth under the heading "Fee
Percentage" in the definition of the term "Applicable Percentage" per annum in
effect from time to time on the average daily unused amount of the Commitments
of such Lender during the preceding quarter (or other period commencing on the
Restatement Closing Date or ending with the Revolving Credit Maturity Date or
the date on which the Commitments of such Lender shall expire or be terminated).
All Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the date of acceptance by the Borrower of the Commitment
of such Lender and shall cease to accrue on the date on which the Commitment of
such Lender shall expire or be terminated as provided herein. For purposes of
this Section 2.05, the unused amount of any Lender's Revolving Credit Commitment
on any date shall equal such Lender's Revolving Credit Commitment on such date
minus such Lender's outstanding Revolving Loans and L/C Exposure on such date.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last day of March, June, September and December
of each year and on the date on which the Revolving Credit Commitment of such
Lender shall be terminated as provided herein, a fee (an "L/C Participation
Fee") calculated on such Lender's Pro Rata Percentage of the average daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have
<PAGE> 34
29
been canceled or have expired and the Revolving Credit Commitments of all
Lenders shall have been terminated) at a rate equal to the Applicable Percentage
from time to time used to determine the interest rate on Revolving Credit
Borrowings comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to
the Issuing Bank with respect to each Letter of Credit the standard fronting,
issuance and drawing fees specified from time to time by the Issuing Bank (the
"Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate plus the Applicable Percentage in effect
from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of overdue principal,
at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as
the case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) equal to the sum of the Alternate Base Rate plus
2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined in good faith that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to any Lender of making
or maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, but, in any
event, prior to the commencement of any Interest Period, give written or
telecopy notice of such determination to the
<PAGE> 35
30
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Eurodollar Borrowing pursuant to Section 2.03 or 2.10 shall be
deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Additional
Tranche B Commitments shall automatically terminate at 5:00 p.m., New York City
time, on the Restatement Closing Date. The Acquisition Loan Commitments shall
automatically terminate at 5:00 p.m., New York City time, on the last day of the
Acquisition Loan Availability Period. The Revolving Credit Commitments and the
L/C Commitment shall automatically terminate on the Revolving Credit Maturity
Date. Notwithstanding the foregoing, this Agreement shall cease to be effective,
and the Existing Credit Agreement shall remain in effect, at 5:00 p.m., New York
City time, on September 15, 1998, if the initial Credit Event under this
Agreement shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce, in
each case, without premium or penalty, the Additional Tranche B Commitments, the
Acquisition Loan Commitments or the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of the Additional Tranche B
Commitments, the Acquisition Loan Commitments or the Revolving Credit
Commitments shall be in an integral multiple of $500,000 and in a minimum amount
of $1,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the Aggregate Revolving Credit Exposure
at the time.
(c) Each reduction in the Additional Tranche B Commitments, the Acquisition
Loan Commitments or the Revolving Credit Commitments hereunder shall be made
ratably among the Lenders in accordance with their respective applicable
Commitments. The Borrower shall pay to the Administrative Agent for the account
of the applicable Lenders, on the date of each termination or reduction, the
unpaid Commitment Fees on the amount of the Commitments so terminated or reduced
accrued to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 11:00 a.m., New York City time, on the Business Day of
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not
later than 10:00 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 10:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified
<PAGE> 36
31
in Sections 2.02(a) and 2.02(b) regarding the principal amount and
maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued and unpaid interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing or Eurodollar Acquisition Borrowing that would end later than
a Term Loan Repayment Date or Acquisition Loan Repayment Date, as the
case may be, occurring on or after the first day of such Interest
Period if, after giving effect to such selection, the aggregate
outstanding amount of the sum of (A) the Eurodollar Term Borrowings
comprised of Tranche A Term Loans, Tranche B Term Loans, Additional
Tranche B Term Loans or Acquisition Loans, as applicable, with Interest
Periods ending on or prior to such Term Loan Repayment Date or
Acquisition Loan Repayment Date, as the case may be, and (B) the ABR
Term Borrowings comprised of Tranche A Term Loans, Tranche B Term
Loans, Additional Tranche B Term Loans or Acquisition Loans, as
applicable, would not be at least equal to the principal amount of Term
Borrowings or Acquisition Borrowings, as the case may be, to be paid on
such Term Loan Repayment Date or Acquisition Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurodollar Borrowing or an ABR
Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not
<PAGE> 37
32
have given notice in accordance with this Section 2.10 to continue any
Borrowing into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with this Section 2.10 to convert such Borrowing), such
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings and Acquisition Borrowings. (a)
(i) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders, on the dates set forth below, or, if any such date is not a Business
Day, on the next succeeding Business Day (each such date being a "Tranche A Term
Loan Repayment Date"), a principal amount of the Tranche A Term Loans equal to
the amount set forth below for such date (as adjusted from time to time pursuant
to Sections 2.12 and 2.13), together in each case with accrued and unpaid
interest on the principal amount thereof to be paid to but excluding the date of
such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
December 31, 1998 $ 750,000
March 31, 1999 $ 750,000
June 30, 1999 $ 750,000
September 30, 1999 $ 750,000
December 31, 1999 $1,000,000
March 31, 2000 $1,000,000
June 30, 2000 $1,000,000
September 30, 2000 $1,000,000
December 31, 2000 $1,000,000
March 31, 2001 $1,000,000
June 30, 2001 $1,000,000
September 30, 2001 $1,000,000
December 31, 2001 $1,000,000
March 31, 2002 $1,000,000
June 30, 2002 $1,000,000
September 30, 2002 $1,000,000
December 31, 2002 $1,250,000
March 31, 2003 $1,250,000
June 30, 2003 $1,250,000
Tranche A Maturity Date $1,250,000
</TABLE>
(ii) The Borrower shall pay to the Administrative Agent, for the account of
the Lenders, on the dates set forth below, or, if any such date is not a
Business Day, on the next succeeding Business Day (each such date being a
"Tranche B Term Loan Repayment Date"), a principal amount of the Tranche B Term
Loans equal to the amount set forth below for such date (as adjusted from time
to time pursuant to Sections 2.12 and 2.13), together in each case with accrued
and unpaid interest on the principal amount thereof to be paid to but excluding
the date of such payment:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
December 31, 1998 $ 250,000
March 31, 1999 $ 250,000
June 30, 1999 $ 250,000
</TABLE>
<PAGE> 38
33
<TABLE>
<S> <C>
September 30, 1999 $ 250,000
December 31, 1999 $ 250,000
March 31, 2000 $ 250,000
June 30, 2000 $ 250,000
September 30, 2000 $ 250,000
December 31, 2000 $ 250,000
March 31, 2001 $ 250,000
June 30, 2001 $ 250,000
September 30, 2001 $ 250,000
December 31, 2001 $ 250,000
March 31, 2002 $ 250,000
June 30, 2002 $ 250,000
September 30, 2002 $ 250,000
December 31, 2002 $ 250,000
March 31, 2003 $ 250,000
June 30, 2003 $ 250,000
September 30, 2003 $ 250,000
December 31, 2003 $6,250,000
March 31, 2004 $6,250,000
June 30, 2004 $6,250,000
September 30, 2004 $6,250,000
December 31, 2004 $6,250,000
March 31, 2005 $6,250,000
June 30, 2005 $6,250,000
Tranche B Maturity Date $6,250,000
</TABLE>
(iii) The Borrower shall pay to the Administrative Agent, for the account
of the Lenders, on March 31, June 30, September 30 and December 31 of each year
or, if any such date is not a Business Day, on the next succeeding Business Day
(each such date being an "Additional Tranche B Term Loan Repayment Date"),
commencing December 31, 2003, a principal amount of the Additional Tranche B
Term Loans equal to $8,750,000 (as adjusted from time to time pursuant to
Sections 2.11(b), 2.12 and 2.13), together in each case with accrued and unpaid
interest on the principal amount thereof to be paid to but excluding the date of
such payment.
(iv) The Borrower shall pay to the Administrative Agent, for the account of
the Lenders, on March 31, June 30, September 30 and December 31 of each year or,
if any such date is not a Business Day, on the next succeeding Business Day
(each such date being an "Acquisition Loan Repayment Date"), commencing
September 30, 2000, a principal amount of the Acquisition Loans equal to the
dollar amount obtained by multiplying the principal amount (as adjusted from
time to time pursuant to Sections 2.11(b), 2.12 and 2.13) of the Acquisition
Loans outstanding on the last day of the Acquisition Loan Availability Period by
6.25%, together in each case with accrued and unpaid interest on the principal
amount thereof to be paid to but excluding the date of such payment.
(b) In the event and on each occasion that any Additional Tranche B
Commitment or Acquisition Loan Commitment shall be reduced or shall expire or
terminate other than as a result of the making of an Additional Tranche B Term
Loan or an Acquisition Loan, respectively, the installments payable on each
Additional Tranche B Term Loan Repayment Date or Acquisition Loan Repayment
Date, respectively, shall be reduced pro rata by an aggregate amount equal to
the amount of such reduction, expiration or termination.
<PAGE> 39
34
(c) To the extent not previously paid, all Tranche A Term Loans, Tranche B
Term Loans, Additional Tranche B Term Loans and Acquisition Loans shall be due
and payable on the Tranche A Maturity Date, Tranche B Maturity Date, Additional
Tranche B Maturity Date and Acquisition Loan Maturity Date, respectively,
together with accrued and unpaid interest on the principal amount to be paid to
but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) in the case
of Eurodollar Loans, or prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) on or prior to the date of
prepayment in the case of ABR Loans, to the Administrative Agent before 11:00
a.m., New York City time; provided, however, that each partial prepayment shall
be in an amount that is an integral multiple of $500,000 and not less than
$1,000,000.
(b) Except for (i) optional prepayments of Revolving Loans and (ii)
optional prepayments of Acquisition Loans during the Acquisition Loan
Availability Period, optional prepayments shall be allocated pro rata among the
then-outstanding Tranche A Term Loans, Tranche B Term Loans, Additional Tranche
B Term Loans and Acquisition Loans and applied pro rata against the remaining
scheduled installments of principal due in respect of the Tranche A Term Loans,
Tranche B Term Loans, Additional Tranche B Term Loans and Acquisition Loans
under Sections 2.11(a)(i), (ii), (iii) and (iv), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued but
unpaid interest on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of
all the Revolving Credit Commitments, the Borrower shall repay or prepay all its
outstanding Revolving Credit Borrowings on the date of such termination. In the
event of any partial reduction of the Revolving Credit Commitments, then (i) at
or prior to the effective date of such reduction, the Administrative Agent shall
notify the Borrower and the Revolving Credit Lenders of the Aggregate Revolving
Credit Exposure after giving effect thereto and (ii) if the Aggregate Revolving
Credit Exposure would exceed the Total Revolving Credit Commitment after giving
effect to such reduction or termination, then the Borrower shall, on the date of
such reduction or termination, first repay or prepay Revolving Credit Borrowings
in an amount sufficient to eliminate such excess and second, to the extent of
any remaining excess (after the prepayment of Revolving Loans), to replace
outstanding Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Collateral Agent for the benefit of the
Secured Parties.
(b) Not later than the third Business Day following the completion of any
Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with
respect thereto to prepay
<PAGE> 40
35
outstanding Term Loans and Acquisition Loans (and permanently reduce the
Acquisition Loan Commitments by the amount of such repayment) in accordance
with Section 2.13(f).
(c) No later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending on September 30,
1998, and (ii) the date on which the financial statements with respect to such
period are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Term Loans and Acquisition Loans (and permanently reduce the
Acquisition Loan Commitments by the amount of such repayment) in accordance with
Section 2.13(f) in an aggregate principal amount equal to 50% of Excess Cash
Flow for the fiscal year then ended.
(d) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted by Section
6.01(other than Section 6.01(k)), the Borrower shall, substantially
simultaneously with (and in any event not later than the third Business Day next
following) the receipt of such Net Cash Proceeds by such Loan Party or such
subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay
outstanding Term Loans and Acquisition Loans (and permanently reduce the
Acquisition Loan Commitments by the amount of such repayment) in accordance with
Section 2.13(f).
(e) In the event that there shall occur any Casualty or Condemnation and,
pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Term Loans
and Acquisition Loans, then the Borrower shall apply an amount equal to 100% of
such Casualty Proceeds or Condemnation Proceeds, as the case may be, to prepay
outstanding Term Loans and Acquisition Loans (and permanently reduce the
Acquisition Loan Commitments by the amount of such repayment) in accordance with
Section 2.13(f).
(f) Mandatory prepayments of outstanding Term Loans and Acquisition Loans
under this Agreement shall be allocated pro rata among the then-outstanding
Tranche A Term Loans, Tranche B Term Loans, Additional Tranche B Term Loans and
Acquisition Loans and, subject to paragraph (i) below, applied pro rata against
the remaining scheduled installments of principal due in respect of Tranche A
Term Loans, Tranche B Term Loans, Additional Tranche B Term Loans and
Acquisition Loans under Sections 2.11(a)(i), (ii), (iii) and (iv), respectively;
provided, however, that mandatory prepayments during the Acquisition Loan
Availability Period made under Section 2.13(d) with the proceeds of Qualified
Subordinated Debt shall be allocated first, to the then-outstanding Acquisition
Loans and second, pro rata among the then-outstanding Tranche A Term Loans,
Tranche B Term Loans and Additional Tranche B Term Loans.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
pre-payment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(h) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans, Acquisition Loans and Revolving Loans shall be
applied, as applicable, first to reduce outstanding ABR Term Loans, ABR
Acquisition Loans and ABR Revolving Loans. Any amounts remaining after
<PAGE> 41
36
each such application shall, at the option of the Borrower, be applied to
prepay Eurodollar Term Loans, Eurodollar Acquisition Loans or Eurodollar
Revolving Loans, as the case may be, immediately and/or shall be deposited in
the Prepayment Account (as defined below). The Administrative Agent shall apply
any cash deposited in the Prepayment Account (i) allocable to Term Loans to
prepay Eurodollar Term Loans, (ii) allocable to Acquisition Loans to prepay
Eurodollar Acquisition Loans and (iii) allocable to Revolving Loans to prepay
Eurodollar Revolving Loans, in each case on the last day of their respective
Interest Periods (or, at the direction of the Borrower, on any earlier date)
until all outstanding Term Loans, Acquisition Loans or Revolving Loans, as the
case may be, have been prepaid or until all the allocable cash on deposit with
respect to such Loans has been exhausted. For purposes of this Agreement, the
term "Prepayment Account" shall mean an account established by the Borrower with
the Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for
application in accordance with this paragraph (h). The Administrative Agent
will, at the request of the Borrower, invest amounts on deposit in the
Prepayment Account in Permitted Investments that mature prior to the last day of
the applicable Interest Periods of the Eurodollar Term Borrowings, Eurodollar
Acquisition Borrowings or Eurodollar Revolving Borrowings to be prepaid, as the
case may be; provided, however, that (i) the Administrative Agent shall not be
required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if an
Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments so
that the amount available to prepay Eurodollar Borrowings on the last day of the
applicable Interest Period is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments, the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in the
Prepayment Account and reinvested and disbursed as specified above. If the
maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby
grants to the Administrative Agent, for its benefit and the benefit of the
Issuing Bank and the Lenders, a security interest in the Prepayment Account to
secure the Obligations.
(i) Any Tranche B Lender or Additional Tranche B Lender may elect, by
notice to the Administrative Agent in writing (or by telephone or telecopy
promptly confirmed in writing) at least one Business Day prior to any prepayment
of Tranche B Term Loans or Additional Tranche B Term Loans required to be made
by the Borrower for the account of such Lender pursuant to Section 2.13(b), (c),
(d) or (e), to cause all or a portion of such prepayment to be applied instead
to prepay Tranche A Term Loans and Acquisition Loans in accordance with
paragraph (f) above.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or the Issuing
Bank of the principal of or interest on any Eurodollar Loan made by such Lender
or any Fees or other amounts payable hereunder (other than changes in respect of
taxes imposed on the overall net income of such Lender or the Issuing Bank by
the jurisdiction in which such Lender or the Issuing Bank has its principal
office or lending office or by any political subdivision or taxing authority
therein), or shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of,
<PAGE> 42
37
deposits with or for the account of or credit extended by any Lender or the
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or the Issuing Bank of making or maintaining any Eurodollar Loan or
increase the cost to any Lender of issuing or maintaining any Letter of Credit
or purchasing or maintaining a participation therein or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise) by an amount reasonably deemed by
such Lender or the Issuing Bank to be material, then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, upon demand such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount reasonably deemed
by such Lender or the Issuing Bank to be material, then from time to time the
Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts reasonably determined by such Lender or Issuing Bank to be necessary
to compensate such Lender or the Issuing Bank or its holding company, as
applicable, as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the Issuing Bank the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
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SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into an ABR Loan, as the case may be), unless
such declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
(a) any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause (a) being called a "Breakage Event") or (b) any
default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over
(ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not
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39
utilized by reason of such Breakage Event for such period. A certificate of
any Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section 2.16 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Sections
2.13(i), 2.14, 2.15 or 2.20, each Borrowing, each payment or prepayment of
principal of any Borrowing, each payment of interest on the Loans, each payment
of the Commitment Fees, each reduction of the Additional Tranche B Commitments,
the Acquisition Loan Commitments or the Revolving Credit Commitments, each
reinstatement of the Acquisition Loan Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each Lender agrees that in computing such Lender's portion
of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans, Additional Tranche B
Term Loans, Acquisition Loans, Revolving Loans or participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Tranche A Term Loans, Tranche B Term Loans, Additional Tranche B Term Loans,
Acquisition Loans, Revolving Loans or participations in L/C Disbursements of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Tranche A Term Loans, Tranche B Term
Loans, Additional Tranche B Term Loans, Acquisition Loans, Revolving Loans or
L/C Exposure, as the case may be of such other Lender, so that the aggregate
unpaid principal amount of the Tranche A Term Loans, Tranche B Term Loans,
Additional Tranche B Term Loans, Acquisition Loans, Revolving Loans and L/C
Exposure and participations in Tranche A Term Loans, Tranche B Term Loans,
Additional Tranche B Term Loans, Acquisition Loans, Revolving Loans and L/C
Exposure held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Tranche A Term Loans, Tranche B Term Loans,
Additional Tranche B Term Loans, Acquisition Loans, Revolving Loans and L/C
Exposure then outstanding as the principal amount of its Tranche A Term Loans,
Tranche B Term Loans, Additional Tranche B Term Loans, Acquisition Loans,
Revolving Loans and L/C Exposure prior to such exercise of banker's lien, setoff
or counterclaim or other event was to the principal amount of all Tranche A Term
Loans, Tranche B Term Loans, Additional Tranche B Term Loans, Acquisition Loans,
Revolving Loans and L/C Exposure outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Term Loan, Acquisition Loan,
Revolving Loan or L/C Disbursement deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the
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Borrower and Holdings to such Lender by reason thereof as fully as if such
Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Any payment received
by the Administrative Agent after such time shall be deemed to have been
received on the next Business Day. Each such payment (other than Issuing Bank
Fees, which shall be paid directly to the Issuing Bank) shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York by
wire transfer.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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(e) Each Foreign Lender, and any Issuing Bank that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code (together
with the Foreign Lenders, the "Non-U.S. Lenders"), shall deliver to the Borrower
(with a copy to the Administrative Agent) two copies of either United States
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 Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not
a 10-percent shareholder of the Borrower (within the meaning of Section
871(h)(3)(B) of the Code) and is not a controlled foreign corporation related to
the Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by the
Borrower under this Agreement or any other Loan Document. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement or designates a new lending office. In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence, expiration or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.20, a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.20 that
such Non-U.S. Lender is not legally able to deliver.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or the Issuing
Bank or any Governmental Authority on account of any Lender or the Issuing Bank
pursuant to Section 2.20, the Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or the Issuing Bank and the
Administrative Agent, require such Lender or the Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Bank), which consent shall not unreasonably be withheld, and (z) the Borrower or
such assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its
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notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or the Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
Subsidiary Guarantor, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (A) the L/C Exposure shall not exceed
$15,000,000 and (B) the Aggregate Revolving Credit Exposure shall not exceed the
Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn
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under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay or cause to be paid to
the Administrative Agent an amount equal to such L/C Disbursement not later than
2:00 p.m. on the Business Day the Borrower shall have received notice from the
Issuing Bank that payment of such draft will be made, or, if the Borrower shall
have received such notice later than 10:00 a.m., New York City time, on any
Business Day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary or other Affiliate thereof or any
other Person may at any time have against the beneficiary under any
Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other Person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
Person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
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Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder, without affecting its rights and
obligations with respect to Letters of Credit previously issued by it. At the
time such removal or resignation shall become
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effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(c)(ii). The acceptance of any appointment as the Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor Lender shall have all the rights and obligations of the previous
Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of the Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required,
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except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated hereby to which it
is or will be a party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder, the
consummation of the Acquisition and the other transactions contemplated hereby
and by the Stock Purchase Agreement (collectively, the "Transactions") (a) have
been duly authorized by all requisite corporate and, if required, stockholder
action and (b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary,
(B) any order of any Governmental Authority or (C) any provision of any material
indenture, agreement or other instrument to which Holdings, the Borrower or any
Subsidiary is a party or by which any of them or any of their property is or may
be bound, (ii) be in conflict with, result in a breach of or constitute (alone
or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of
any obligation under any such indenture, agreement or other instrument or (iii)
result in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by Holdings, the Borrower or
any Subsidiary (other than any Lien created hereunder or under the Security
Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party that is party
thereto will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, subject
to the effects of applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws affecting creditors' rights generally and equitable principles
of general applicability (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and (c) such as have been made or
obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders (i) its consolidated balance sheet and related
statements of income and cash flows as of and for the fiscal year ended
September 30, 1997, audited by and accompanied by the opinion of Ernst & Young
LLP, independent public accountants, (ii) its unaudited consolidated balance
sheets and related statements of income and cash flows as of and for the fiscal
quarter and the portion of the fiscal year ended June 30, 1998, (iii) the
consolidated balance sheet and related statements of income, stockholder's
equity and cash flows of Dalton as of and for the fiscal years ended December
30, 1995, December 28, 1996 and January 3, 1998, audited by and accompanied by
the opinion of Price Waterhouse LLP, independent public accountants, (iv) the
unaudited consolidated balance sheet and related statements of income,
stockholder's equity and cash flows of Dalton as of and for the portion of the
fiscal year ended July 4, 1998 and (v) the consolidated balance sheet and
related statements of income, stockholders' equity and cash flows of ACP as of
and for the fiscal years ended September 30, 1995, 1996 and 1997, audited by and
accompanied by the opinion of Arthur Andersen LLP,
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independent public accountants. Such financial statements present fairly the
financial condition and results of operations and cash flows of the Borrower,
Dalton and ACP and their respective consolidated Subsidiaries as of such dates
and for such periods. Such balance sheets and the notes thereto disclose all
material liabilities, direct or contingent, of the Borrower, Dalton and ACP and
their respective consolidated Subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet as of June 30, 1998, adjusted to give
effect to the Transactions as if they had occurred on such date. Such pro forma
balance sheet has been prepared in good faith by the Borrower, based on the
assumptions used to prepare the pro forma financial information contained in the
Confidential Information Memorandum (which assumptions are believed by the
Borrower on the date hereof and on the Restatement Closing Date to be
reasonable), is based on the best information available to the Borrower as of
the date of delivery thereof, accurately reflects all adjustments required to be
made to give effect to the Transactions and presents fairly on a pro forma basis
the estimated consolidated financial position of the Borrower and its
consolidated Subsidiaries as of such date, assuming that the Transactions had
actually occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of the Borrower and the
Subsidiaries, taken as a whole, since September 30, 1997, or of Dalton and its
subsidiaries, taken as a whole, since December 31, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Mortgaged Property), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of Holdings, the Borrower and the Subsidiaries has complied
with all obligations under all material leases to which it is a party and all
such leases are in full force and effect. Each of Holdings, the Borrower and the
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) Neither Holdings nor the Borrower has received any notice of, nor
has any knowledge of, any pending or contemplated condemnation proceeding
materially and adversely affecting the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 3.07(d), none of Holdings, the
Borrower or any of the Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
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SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Restatement Closing Date a list of all Subsidiaries and the percentage ownership
interest of the Borrower therein. The shares of capital stock or other ownership
interests so indicated on Schedule 3.08 are fully paid and non-assessable and
are owned by the Borrower, directly or indirectly, free and clear of all Liens
(other than Liens in favor of the Collateral Agent, created under the Security
Documents). Holdings owns 100% of the issued and outstanding capital stock of
the Borrower, free and clear of all Liens (other than Liens in favor of the
Collateral Agent, created under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09(a), there are not any actions, suits or proceedings at law or
in equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such Person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 3.09(c), certificates of occupancy
and permits to the extent required by law are in effect for each Mortgaged
Property as currently constructed, and true and complete copies of such
certificates of occupancy have been delivered to the Collateral Agent as
mortgagee with respect to each Mortgaged Property.
SECTION 3.10. Agreements. (a) Except as set forth on Schedule 3.10,
none of Holdings, the Borrower or any of the Subsidiaries is a party to any
agreement or instrument or subject to any corporate restriction that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, 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 the Regulations of the Board, including Regulation U or
X.
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SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower or any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, material state,
material local and material foreign tax returns or materials required to have
been filed by it and has paid or caused to be paid all taxes shown on such
returns to be due and payable by it and all assessments received by it, except
taxes that are being contested in good faith by appropriate proceedings and for
which Holdings, the Borrower or such Subsidiary, as applicable, shall have set
aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of Holdings and the Borrower
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.16. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under all Plans in the aggregate (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $2,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$4,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by Holdings, the Borrower
and the Subsidiaries (the "Properties") do not contain any Hazardous
Materials in amounts or concentrations which (i) constitute, or
constituted a violation of, (ii) require Remedial Action under, or
(iii) could give rise to liability under, Environmental Laws, which
violations, Remedial Actions and liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
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(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last seven years have been
in compliance, with all Environmental Laws and all necessary
Environmental Permits have been obtained and are in effect, except to
the extent that such non-compliance or failure to obtain any necessary
permits, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in connection
with the operations of the Borrower or the Subsidiaries, which Releases
or threatened Releases, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries
has received any notice of an Environmental Claim in connection with
the Properties or the operations of the Borrower or the Subsidiaries or
with regard to any Person whose liabilities for environmental matters
Holdings, the Borrower or the Subsidiaries has retained or assumed, in
whole or in part, contractually, by operation of law or otherwise,
which, in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, nor do Holdings, the Borrower or the
Subsidiaries have reason to believe that any such notice will be
received or is being threatened; and
(e) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated,
stored or disposed of at, on or under any of the Properties in a manner
that could reasonably be expected to give rise to liability under any
Environmental Law, nor have the Borrower or the Subsidiaries retained
or assumed any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which transportation, generation,
treatment, storage or disposal, or retained or assumed liabilities, in
the aggregate, could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the Restatement Closing Date. As of such
date, such insurance is in full force and effect and all premiums have been duly
paid. The Borrower and its Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent and for so long as the Collateral Agent
continues to hold such Collateral, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security
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Agreement), in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by Section 6.02.
(c) Assuming the Security Agreement has been filed in the United States
Patent and Trademark Office and the United States Copyright Office, the Security
Agreement constitutes a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other Person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(d), the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other Person,
other than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Restatement Closing
Date all real property owned by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries own in fee all the real
property set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the
Restatement Closing Date all real property leased by the Borrower and the
Subsidiaries and the addresses thereof. The Borrower and such Subsidiaries have
valid leasehold interests in all the real property set forth on Schedule 3.20(b)
SECTION 3.21. Labor Matters. As of the Restatement Closing Date, there
are no strikes, lockouts or slowdowns against Holdings, the Borrower or any
Subsidiary pending or, to the knowledge of Holdings or the Borrower, threatened.
The hours worked by and payments made to employees of Holdings, the Borrower and
the Subsidiaries have not been in material violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with
such matters. All payments due from Holdings, the Borrower or any Subsidiary, or
for which any claim may be made against Holdings, the Borrower or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary. The consummation of the Transactions
will not give rise to any right of termination or right of renegotiation on the
part of any union under any collective bargaining agreement to which Holdings,
the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. (a) Immediately after the consummation of the
Transactions to occur on the Restatement Closing Date and immediately following
the making of each Loan made on the Restatement Closing Date and after giving
effect to the application of the proceeds of such Loans, (i) the fair value of
the assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property
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of each Loan Party will be greater than the amount that will be required to pay
the probable liability of its debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (iii) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the
Restatement Closing Date.
SECTION 3.23. Year 2000 Compliance. To the best of Holdings' and the
Borrower's knowledge, any reprogramming required to permit the proper
functioning, in and following the year 2000, of (a) the computer systems of
Holdings, the Borrower and any of the Subsidiaries and (b) equipment containing
embedded microchips and the testing of all such systems and equipment, as so
reprogrammed, will be completed in all material respects by June 30, 1999. To
the best of Holdings' and the Borrower's knowledge, the cost to Holdings, the
Borrower and any of the Subsidiaries of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to Holdings, the Borrower
and any of the Subsidiaries (including reprogramming errors and the failure of
others' systems or equipment used directly by the Borrower or the Subsidiaries
in their respective operations) would not reasonably be expected to result in an
Event of Default or a Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including on the date of each issuance, amendment, extension or renewal of a
Letter of Credit (each such event being called a "Credit Event"), but excluding
any conversion or continuation of a Borrowing in accordance with Section 2.10:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 (or such notice shall have
been deemed given in accordance with Section 2.03) or, in the case of
the issuance, amendment, extension or renewal of a Letter of Credit,
the Issuing Bank and the Administrative Agent shall have received a
notice requesting the issuance, amendment, extension or renewal of such
Letter of Credit as required by Section 2.22(b).
(b) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects on and as
of the date of such Credit Event with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) No Event of Default or Default shall have occurred and be
continuing.
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Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Restatement Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of (i) Kirkland & Ellis, counsel for Holdings and the Borrower,
substantially to the effect set forth in Exhibit J-1 and (ii) each
local counsel listed on Schedule 4.02(a) substantially to the effect
set forth in Exhibit J-2, in each case (A) dated the Restatement
Closing Date, (B) addressed to the Issuing Bank, the Administrative
Agent and the Lenders, and (C) covering such other matters relating to
the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request, and Holdings and the Borrower hereby request
such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Lenders, to the Issuing Bank and
to Cravath, Swaine & Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate
as to the good standing of each Loan Party as of a recent date, from
such Secretary of State (or, in lieu of such certificate as to good
standing for each Loan Party incorporated in the State of Wisconsin, a
certificate of status from the Wisconsin Department of Financial
Institutions as to such Loan Party's existence); (ii) a certificate of
the Secretary or Assistant Secretary of each Loan Party dated the
Restatement Closing Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of such Loan Party as in effect
on the Restatement Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to be entered
into on the Restatement Closing Date to which such Person is a party
and, in the case of the Borrower, the borrowings hereunder to be made
on the Restatement Closing Date, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
(C) that the certificate or articles of incorporation of such Loan
Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as
the Lenders, the Issuing Bank or Cravath, Swaine & Moore, counsel for
the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Restatement Closing Date and signed by a
Financial Officer of the Borrower, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of Section
4.01.
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(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Restatement Closing
Date, including, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement, as amended and restated on the
Restatement Closing Date, shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full
force and effect, and all the outstanding Capital Stock of the Borrower
and the Subsidiaries (other than FSC) shall have been duly and validly
pledged thereunder to the Collateral Agent for the ratable benefit of
the Secured Parties and certificates representing such shares,
accompanied by instruments of transfer and stock powers endorsed in
blank, shall be in the actual possession of the Collateral Agent;
provided that, to the extent to do so would cause adverse tax
consequence to the Borrower, (i) neither the Borrower nor any Domestic
Subsidiary shall be required to pledge more than 65% of the Voting
Stock of any Foreign Subsidiary and (ii) no Foreign Subsidiary shall be
required to pledge the Capital Stock of any of its Foreign
Subsidiaries.
(g) The Security Agreement, as amended and restated as of the
Restatement Closing Date, shall have been duly executed by the Loan
Parties party thereto and shall have been delivered to the Collateral
Agent and shall be in full force and effect on such date and each
document (including each Uniform Commercial Code financing statement)
required by law or reasonably requested by the Administrative Agent to
be filed, registered or recorded in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid, legal
and perfected first-priority security interest in and lien on the
Collateral (subject to any Lien expressly permitted by Section 6.02)
described in such agreement shall have been delivered to the Collateral
Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings
made with respect to the Loan Parties acquired pursuant to the
Acquisition in the states (or other jurisdictions) in which the chief
executive office of each such Person is located, any offices of such
Persons in which records have been kept relating to Accounts and the
other jurisdictions in which Uniform Commercial Code filings (or
equivalent filings) are to be made pursuant to the preceding paragraph,
together with copies of the financing statements (or similar documents)
disclosed by such search, and accompanied by evidence satisfactory to
the Collateral Agent that the Liens indicated in any such financing
statement (or similar document) would be permitted under Section 6.02
or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties acquired pursuant to the
Acquisition dated the Restatement Closing Date and duly executed by a
Responsible Officer of the Borrower.
(j) (i) Each of the Security Documents, as amended and
restated as of the Restatement Closing Date, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02, (iii) each of
such Security Documents shall have been filed and recorded in the
recording office as specified on Schedule 3.19(d) (or a lender's marked
and redated title
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commitment for title insurance, in form and substance acceptable to the
Collateral Agent, insuring such Security Document as a first lien on
such Mortgaged Property (subject to any Lien permitted by Section 6.02)
shall have been received by the Collateral Agent) and, in connection
therewith, the Collateral Agent shall have received evidence
satisfactory to it of the title company's agreement to record or file
such Security Documents, as applicable, and (iv) the Collateral Agent
shall have received such other documents, including a policy or
policies of title insurance issued by a nationally recognized title
insurance company, together with such endorsements, coinsurance and
reinsurance as may be requested by the Collateral Agent and the
Lenders, insuring the Mortgages as valid first liens on the Mortgaged
Properties, free of Liens other than those permitted under Section
6.02, together with such surveys, abstracts, appraisals and legal
opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Collateral Agent or the
Lenders.
(k) Each of the Parent Guarantee Agreement, the Subsidiary
Guarantee Agreement and the Indemnity, Subrogation and Contribution
Agreement, as amended and restated as of the Restatement Closing Date,
shall have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and
effect.
(l) (i) The Acquisition shall have been consummated, or shall
be consummated simultaneously with the initial Credit Event, in
accordance with applicable law and the Stock Purchase Agreement and
(ii) the Lenders shall (A) be reasonably satisfied that the
capitalization, structure and equity ownership of the Borrower and its
Subsidiaries shall not have changed from that previously disclosed to
the Lenders, (B) be reasonably satisfied with the material terms of the
Stock Purchase Agreement and the documentation related thereto, (C) be
reasonably satisfied with all legal, tax and accounting matters
relating to the Transactions and (D) be reasonably satisfied that the
aggregate level of fees and expenses to be paid in connection with the
Transactions, the financing therefor and the other transactions
contemplated hereby shall not exceed $2,500,000.
(m) After giving effect to the Acquisition and the other
transactions contemplated hereby to be consummated on the Restatement
Closing Date, the Borrower and its Subsidiaries shall have outstanding
no Indebtedness or preferred stock other than (i) the extensions of
credit under this Agreement, (ii) the Senior Subordinated Notes, (iii)
the Seller Note and (iv) the Indebtedness listed on Schedule 6.01.
(n) The Lenders shall have received (i) the financial
statements described in Sections 3.05(a) and (b) and (ii) the financial
and operating projections of the Borrower and its Subsidiaries,
covering a period of five years following the Restatement Closing Date,
in each case which shall be reasonably satisfactory to the Lenders and
shall not be materially inconsistent with the forecasts previously
provided to the Lenders.
(o) The Lenders shall have received a letter from a Financial
Officer of the Borrower, in form and substance reasonably satisfactory
to the Lenders, as to the solvency of the Borrower and its Subsidiaries
on a consolidated basis after giving effect to the Acquisition, the
initial Credit Event and the consummation of the other Transactions to
be consummated on the Restatement Closing Date.
(p) All requisite material Governmental Authorities and third
parties shall have approved or consented to the Acquisition and the
other transactions contemplated hereby to
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be consummated on the Restatement Closing Date to the extent required,
all applicable appeal periods shall have expired and there shall be no
governmental or judicial action, actual or threatened, that has or
could have a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the Acquisition or the other
transactions contemplated hereby to be consummated on the Restatement
Closing Date.
(q) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
in each case with respect to the Loan Parties acquired pursuant to the
Acquisition, each of which shall be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement
and to name the Collateral Agent as additional insured, in form and
substance satisfactory to the Administrative Agent.
(r) The Lenders shall be reasonably satisfied as to the amount
and nature of any environmental and employee health and safety
exposures to which Dalton and its Subsidiaries may be subject and the
plans of the Borrower and Dalton with respect thereto, after giving
effect to the Transactions and the consummation of the other
transactions contemplated hereby.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
shall have been paid in full and all Letters of Credit have been canceled or
have expired and all amounts drawn thereunder have been reimbursed in full or
cash collateralized to the satisfaction of the Administrative Agent and the
Issuing Bank, unless the Required Lenders shall otherwise consent in writing,
each of Holdings and the Borrower will, and will cause each of the Subsidiaries
to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect in all material respects the
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted,
except where such non-compliance could not reasonably be expected to result in a
Material Adverse Effect; and, except in the case of sales of assets permitted
pursuant to Section 6.05, at all times maintain and preserve all property
material to the conduct of such business and keep, in all material respects,
such property in good repair, working order and condition, normal wear and tear
excepted, and from time to time
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make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. In the case of the Borrower and each
Subsidiary:
(a) Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers; and maintain such
other insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, in each case as
is customary with companies in the same or similar businesses operating
in the same or similar locations, including public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative
Agent and the Collateral Agent, which endorsement shall provide that,
from and after the Restatement Closing Date, if the insurance carrier
shall have received written notice from the Administrative Agent or the
Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall, during the continuance of such Event of
Default, pay all proceeds otherwise payable to the Borrower or the Loan
Parties under such policies directly to the Collateral Agent; cause all
such policies to provide that neither the Borrower, the Administrative
Agent, the Collateral Agent nor any other party shall be a coinsurer
thereunder and to contain a "Replacement Cost Endorsement", without any
deduction for depreciation, and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably require
from time to time to protect their interests; deliver original or
certified copies of all such policies to the Collateral Agent; cause
each such policy to provide that it shall not be canceled, modified or
not renewed (i) by reason of nonpayment of premium upon not less than
10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the
Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason upon
not less than 30 days' prior written notice thereof by the insurer to
the Administrative Agent and the Collateral Agent; deliver to the
Administrative Agent and the Collateral Agent, prior to the
cancelation, modification or nonrenewal of any such policy of
insurance, a copy of a renewal or replacement policy (or other evidence
of renewal of a policy previously delivered to the Administrative Agent
and the Collateral Agent) together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) If at any time the area in which the Premises (as defined
in the Mortgages) are located is designated (i) a "flood hazard area"
in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in
such total amount as the Administrative Agent, the Collateral Agent or
the Required Lenders may from time to time require, and otherwise
comply with the National Flood Insurance Program as set forth in the
Flood Disaster Protection Act of 1973, as it may be amended from time
to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the
Required Lenders may from time to time require.
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(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made
for personal injury (including bodily injury, death and property
damage) and umbrella liability insurance against any and all claims, in
no event for a combined single limit of less than $25,000,000, naming
the Collateral Agent as an additional insured, on forms satisfactory to
the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained
under this Section 5.02 is taken out by the Borrower; and promptly
deliver to the Administrative Agent and the Collateral Agent a
duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien upon such properties or any part thereof; provided, however,
that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, all audited by Ernst & Young LLP or
other independent public accountants of recognized national standing
acceptable to the Required Lenders and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments;
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(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a letter of the accounting firm
or certificate of the Financial Officer reporting on or certifying such
statements (which letter, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) reporting that they are unaware that any Event of
Default has occurred, in the case of the accounting firm, or certifying
that no Event of Default or Default has occurred, in the case of the
Financial Officer, or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be; and
(e) prior to the beginning of each fiscal year, a copy of the
budget for its consolidated balance sheet and related statements of
income and cash flows for each quarter of such fiscal year; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) the occurrence of any Event of Default or Default,
specifying the nature and extent thereof and the corrective action (if
any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000; and
(d) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the
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properties of Holdings, the Borrower or any Subsidiary at reasonable times and
upon reasonable notice and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of Holdings, the Borrower or any Subsidiary with the
officers thereof and independent accountants therefor; provided, however, that,
unless a Default or Event of Default shall have occurred and be continuing, in
no event shall the Administrative Agent or any Lender or any of their respective
designees contact any customer or supplier of the Borrower or any Subsidiary
regarding this Agreement and the Indebtedness hereunder without the prior
consent of the Borrower.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.08. Compliance with Environmental Laws. Except for any
non-compliance that could not reasonably be expected to result in a Material
Adverse Effect, comply, and cause all lessees and other Persons occupying its
Properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all Environmental
Permits necessary for its operations and Properties; and conduct any Remedial
Action in accordance with Environmental Laws; provided, however, that none of
Holdings, the Borrower or any of the Subsidiaries shall be required to undertake
any Remedial Action to the extent that its obligation to do so is being
contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.
SECTION 5.09. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.08 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default prepared by an environmental consulting
firm acceptable to the Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost of any compliance or
Remedial Action in connection with such Properties.
SECTION 5.10. [Intentionally Omitted.]
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower will cause any
subsequently acquired or organized Domestic Subsidiary to execute a Subsidiary
Guarantee Agreement, Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent. In addition, from
time to time, the Borrower will, at its cost and expense, promptly secure the
Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Borrower
(including real and other properties acquired subsequent to the Restatement
Closing
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Date)). Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other
instruments and documents in form and substance satisfactory to the Collateral
Agent, and the Borrower shall deliver or cause to be delivered to the Lenders
all such instruments and documents (including legal opinions, title insurance
policies and lien searches) as the Collateral Agent shall reasonably request to
evidence compliance with this Section. The Borrower agrees to provide such
evidence as the Collateral Agent shall reasonably request as to the perfection
and priority status of each such security interest and Lien.
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that, until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document (other than wholly contingent indemnification obligations)
have been paid in full and all Letters of Credit have been canceled or have
expired and all amounts drawn thereunder have been reimbursed in full or cash
collateralized to the satisfaction of the Administrative Agent and the Issuing
Bank, unless the Required Lenders shall otherwise consent in writing, neither
Holdings nor the Borrower will, nor will they cause or permit any of the
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the
Restatement Closing Date and set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) the Senior Subordinated Notes (or the notes exchanged
therefor pursuant to and in accordance with Section 6.09(c));
(d) (i) Earn-Out Obligations in an aggregate principal amount
at any time outstanding not exceeding $25,000,000 and (ii) the Ashland
Earn-Out Obligation in an aggregate principal amount at any time
outstanding not exceeding $7,000,000;
(e) Indebtedness consisting of purchase money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of business
after the Original Closing Date to finance Consolidated Capital
Expenditures; provided that (i) a description of the assets financed
thereby shall have been furnished to the Administrative Agent for any
assets for which the purchase price is greater than $1,000,000 and (ii)
the aggregate principal amount of any Indebtedness or Capital Lease
Obligations incurred pursuant to this paragraph (d) outstanding at any
time shall not exceed $25,000,000;
(f) intercompany loans and advances permitted by Section
6.04(c);
(g) Indebtedness of the Borrower or any Subsidiary to
Holdings; provided that such Indebtedness (i) is subordinated to the
prior payment in full of the Obligations on terms
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satisfactory to the Administrative Agent and (ii) is evidenced by an
intercompany note pledged by Holdings to the Collateral Agent pursuant
to the Pledge Agreement for the benefit of the Secured Parties;
(h) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements;
(i) Indebtedness arising out of judgments or awards (other
than any judgment that is described in clause (i) of Article VII and
constitutes a Default or Event of Default thereunder) in respect of
which the Borrower shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or proceedings for
review, provided the Borrower shall have set aside on its books
adequate reserves, in accordance with GAAP, with respect to such
judgment or award;
(j) Indebtedness under performance bonds in an aggregate
principal amount at any time outstanding not exceeding $2,000,000;
(k) Qualified Subordinated Debt in an aggregate principal
amount not exceeding $150,000,000;
(l) the Subordinated Promissory Notes; and
(m) additional unsecured Indebtedness in an aggregate amount
at any time outstanding not exceeding $20,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any Person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the Restatement Closing Date and set forth in
Schedule 6.02; provided that such Liens shall secure only those
obligations which they secure on the Restatement Closing Date;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition (except as permitted pursuant to Section 6.02(i)),
(ii) such Lien does not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien does not (A) materially
interfere with the use, occupancy and operation of any Mortgaged
Property, (B) materially reduce the fair market value of such Mortgaged
Property but for such Lien or (C) result in any material increase in
the cost of operating, occupying or owning or leasing such Mortgaged
Property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
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(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising, in the case of such other like
Liens, in the ordinary course of business and securing obligations that
are not due and payable or which are being contested in compliance with
Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), 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;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred, in the case of such other similar encumbrances, in the
ordinary course of business which, in the aggregate, are not
substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01(e), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 85% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) (or if such Indebtedness exceeds such 85%
limit, such Indebtedness is non-recourse to Holdings, the Borrower and
the Subsidiaries) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Subsidiary;
(j) any Lien on any Mortgaged Property disclosed on the marked
and redated title insurance commitment with respect to such Mortgaged
Property delivered to the Collateral Agent on or prior to the
Restatement Closing Date;
(k) Liens arising out of judgments or awards (other than any
judgment that is described in clause (i) of Article VII and constitutes
a Default or Event of Default thereunder) in respect of which the
Borrower shall in good faith be prosecuting an appeal or proceedings
for review and in respect of which it shall have secured a subsisting
stay of execution pending such appeal or proceedings for review,
provided the Borrower shall have set aside on its books adequate
reserves, in accordance with GAAP, with respect to such judgment or
award; and
(l) additional Liens on property or assets securing
obligations (other than Indebtedness for borrowed money) not exceeding
$500,000 at any time, provided that, to the extent any such Lien
applies to any Collateral (as defined in any such Security Document),
such Lien does not have priority over the Liens created under the
Security Documents.
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SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other Person, except:
(a) investments by the Borrower existing on the Restatement
Closing Date in the capital stock of the Subsidiaries and additional
investments by Holdings in the Capital Stock of the Borrower or by the
Borrower in the Capital Stock of the Subsidiary Guarantors (other than
Ashland);
(b) Permitted Investments;
(c) investments, loans or advances made by any Loan Party to
the Borrower or any Subsidiary, provided that any such loans or
advances are evidenced by an intercompany note pledged to the
Collateral Agent pursuant to the Pledge Agreement for the benefit of
the Secured Parties;
(d) investments consisting of non-cash consideration received
in connection with a sale of assets permitted by Section 6.05(b);
(e) loans and advances to employees and officers of the
Borrower or any of the Subsidiaries for travel, entertainment and
relocation expenses in the ordinary course of business in an aggregate
principal amount outstanding at any one time not to exceed $500,000;
(f) loans and advances in an aggregate principal amount
outstanding at any one time not to exceed $2,000,000 to management and
other employees of the Borrower or the Subsidiaries, the proceeds of
which are used in their entirety to purchase capital stock of Holdings,
ACP Holdings or ACP Products or any successor thereto and other
investments pursuant to retirement savings programs or to pay fees and
expenses (including taxes) incurred in connection therewith;
(g) the Borrower may make any Permitted Acquisition; provided
that (i) the aggregate purchase price of all such Permitted
Acquisitions consummated after the Restatement Closing Date does not
exceed $80,000,000, (ii) the aggregate principal amount of all
Revolving Loans and Letters of Credit at any one time outstanding used
to finance the cash consideration and fees and expenses paid in
connection with all Permitted Acquisitions consummated after the
Restatement Closing Date shall not exceed $30,000,000 and (iii) the
Borrower shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to
such Permitted Acquisition, (A) no Event of Default or Default shall
have occurred and be continuing, (B) the Borrower shall be in
compliance on a pro forma basis (including as adjusted to reduce or
exclude any identified costs that will be reduced or will cease to be
incurred after such Permitted Acquisition) with the covenants set forth
in Sections 6.11, 6.12 and 6.13 in each case as of the last day of the
<PAGE> 70
65
most recent fiscal quarter adjusted to give effect (as if such event
had occurred on the first day of the four fiscal quarter period ended
on such last day) to such Permitted Acquisition and the financing
therefor, and the adjustments and calculations set forth in such
certificate shall be based on assumptions and otherwise in form and
substance satisfactory to the Administrative Agent and (C) the Senior
Debt Leverage Ratio as of the most recent fiscal quarter of the
Borrower preceding such Permitted Acquisition for which financial
statements are available shall not exceed 2.50 to 1.00;
(h) Consolidated Capital Expenditures permitted pursuant to
Section 6.10;
(i) Accounts;
(j) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements; and
(k) investments by the borrower existing on the restatement
closing date in design technologies.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired) or
any capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or any substantial part of the
assets of any other Person, except that (i) the Borrower and any Subsidiary may
purchase and sell inventory and scrap, obsolete, excess and worn out assets in
the ordinary course of business, (ii) if at the time thereof and immediately
after giving effect thereto no Event of Default or Default shall have occurred
and be continuing (v) the ACP Contribution may be made, (w) any wholly owned
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (x) any wholly owned Subsidiary may merge into or
consolidate with any other wholly owned Domestic Subsidiary in a transaction in
which the surviving entity is a wholly owned Domestic Subsidiary and no Person
other than the Borrower or a wholly owned Domestic Subsidiary receives any
consideration, (y) Holdings may merge into ACP Holdings or the Borrower in a
transaction in which the Borrower is the surviving corporation (in the case of
any such merger of Holdings into the Borrower) so long as concurrently with any
merger of Holdings with and into the Borrower, or any merger of Holdings with
and into ACP Holdings in which Holdings is not the surviving corporation, ACP
Holdings assumes all the obligations of Holdings under this Agreement and the
other Loan Documents (including entering into a supplement to the Pledge
Agreement to pledge 100% of the Capital Stock of the Borrower to the Collateral
Agent for the benefit of the Secured Parties) and (z) following any merger
described in clause (y), ACP Holdings may merge into ACP Products or the
Borrower in a transaction in which the Borrower is the surviving corporation (in
the case of any such merger of ACP Holdings into the Borrower) so long as
concurrently with any merger of ACP Holdings with and into the Borrower, or any
merger of ACP Holdings with and into ACP Products in which ACP Holdings is not
the surviving corporation, ACP Products assumes all the obligations of ACP
Holdings under this Agreement and the other Loan Documents (including entering
into a supplement to the Pledge Agreement to pledge 100% of the Capital Stock of
the Borrower to the Collateral Agent for the benefit of the Secured Parties),
(iii) the Borrower and any Subsidiary may make Permitted Acquisitions permitted
by Section 6.04(g), (iv) the Borrower and any Subsidiary may make
<PAGE> 71
66
Consolidated Capital Expenditures permitted by Section 6.10, (v) the Borrower
and any Subsidiary may engage in any Asset Sale of Capital Stock or other assets
acquired pursuant to a Permitted Acquisition permitted pursuant to Section
6.04(g), (vi) the Borrower may sell all or any part of the Plant No.1 complex
for a purchase price of less than fair market value and (vii) the Borrower may
sell all the capital stock of Ashland, or Ashland may sell all or substantially
all its assets.
(b) Neither the Borrower nor any Subsidiary shall engage in any Asset
Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is
for consideration at least 85% of which is cash, (ii) except in the case of
clause (a)(vi) above, such consideration is at least equal to the fair market
value (as determined in good faith by the Borrower's board of directors) of the
assets being sold, transferred, leased or disposed of and (iii) the fair market
value (as determined in good faith by the Borrower's board of directors) of all
assets sold, transferred, leased or disposed of pursuant to this paragraph (b)
(except for assets sold, transferred, leased or disposed of pursuant to Section
6.05(a)(v)) shall not exceed (i) $10,000,000 in any fiscal year or (ii)
$20,000,000 in the aggregate.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its Capital Stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase or
acquire) any shares of any class of its Capital Stock or set aside any amount
for any such purpose; provided, however, that
(i) any Subsidiary may declare and pay dividends or make other
distributions to the Borrower;
(ii) the Borrower may declare and pay dividends or make other
distributions to Holdings (A) to pay the Borrower Tax Amount required
to be paid by Holdings and (B) to fund payments to be made by Holdings
as permitted by clause (iv) below in an aggregate amount not to exceed
the amounts of such payments;
(iii) so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower may declare and pay dividends
or make other distributions to Holdings to pay the actual operating
costs of Holdings and ACP Holdings in an aggregate amount not exceeding
$250,000 in any fiscal year of the Borrower;
(iv) Holdings may, or Holdings may declare and pay dividends
or make other distributions to ACP Holdings to permit ACP Holdings or
ACP Products to, purchase, redeem, retire or otherwise acquire (A)
shares of its Capital Stock, or options or warrants to purchase shares
of its Capital Stock, held by officers, directors or employees of
Holdings, the Borrower or any Subsidiary pursuant to a compensation
plan or arrangement in connection with the death, disability or
termination of employment of any such officer, director or employee or
(B) shares of its capital stock owned by any officer, director or
employee of Holdings, the Borrower or any Subsidiary pursuant to the
exercise of options or warrants to purchase such Capital Stock by such
officer, director or employee or to pay taxes incurred in connection
with such exercise of options or warrants in an aggregate amount for
all such transactions described in clauses (A) and (B) not exceeding
the sum of (x) $2,000,000 plus (y) the proceeds of any substantially
concurrent issuance of Capital
<PAGE> 72
67
Stock of ACP Products, ACP Holdings or Holdings to any officer,
director or employee of Holdings, the Borrower or any Subsidiary;
(v) Holdings may declare and pay dividends or make other
distributions to ACP Holdings to pay the Borrower Tax Amount required
to be paid by ACP Holdings; and
(vi) so long as no Default or Event of Default shall have
occurred and be continuing, Holdings may declare and pay dividends or
make other distributions to ACP Holdings, out of the proceeds of
dividends or distributions received by Holdings pursuant to clause
(iii) above, to pay ACP Holdings' actual operating costs.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary.
SECTION 6.07. Transactions with Affiliates. Except as set forth on
Schedule 6.07, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that the Borrower or any
Subsidiary may engage in (a) any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) the transactions permitted pursuant to
Sections 6.05 and 6.06, (c) the Transactions and (d) following the pledge of 65%
of the Voting Stock of FSC to the Collateral Agent pursuant to the Pledge
Agreement, arrangements pursuant to which the Borrower or any Subsidiary shall
pay commissions or other fees to FSC in an aggregate amount not exceeding
$2,000,000 in any fiscal year of the Borrower.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any time
in any business or business activity other than Related Businesses.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of (i) the Stock
Purchase Agreement or the Merger Agreement or (ii) any indenture, instrument or
agreement pursuant to which any Indebtedness or preferred stock of Holdings, the
Borrower or any Subsidiary is outstanding in an aggregate outstanding principal
amount in excess of $1,000,000, or modify its charter or by-laws, in each case
to the extent that any such waiver, supplement, modification, amendment,
termination or release would be adverse to the Lenders in any material respect.
(b) (i) make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money of Holdings, the Borrower or any Subsidiary in an outstanding
principal amount exceeding $1,000,000 or (ii) pay in cash any amount in respect
of such Indebtedness that may at the obligor's option be paid in kind or in
other securities.
(c) Notwithstanding anything contained in this Section 6.09 to the
contrary, the Borrower shall be permitted to exchange the Senior Subordinated
Notes or Qualified Subordinated Debt for
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68
substantially identical notes in accordance with the Exchange and Registration
Rights Agreements with respect thereto.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures (other than Consolidated Capital Expenditures
for patterns and Permitted Acquisitions permitted by Section 6.04(g)) made by
the Borrower and the Subsidiaries, taken as a whole, in any fiscal year to
exceed the sum of (a) $40,000,000, (b) the net cash proceeds of any issuance of
equity securities by, without duplication, Holdings, ACP Holdings or ACP
Products made during such fiscal year and substantially concurrently used to
fund Consolidated Capital Expenditures, and (c) 100% of Excess Cash Flow for the
preceding fiscal year that was not required to be used to make prepayments of
the outstanding Term Loans pursuant to Section 2.13; provided, however, that the
amount of Consolidated Capital Expenditures in any fiscal year of the Borrower
permitted to be incurred pursuant to clause (a) above shall be increased by an
amount equal to the amount of unused Consolidated Capital Expenditures permitted
to be incurred pursuant to clause (a) above for the immediately preceding fiscal
year of the Borrower (without giving effect to this proviso).
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be in excess of the ratio set forth below for such period.
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
January 1, 1998 through September 30, 1999 6.00 to 1.00
October 1, 1999 through September 30, 2000 5.75 to 1.00
Thereafter 5.50 to 1.00
</TABLE>
SECTION 6.12. Consolidated Net Worth. Permit Consolidated Net Worth (a)
on the Original Closing Date, to be less than $35,000,000 or (b) on the last day
of any fiscal quarter thereafter, to be less than the sum of (i) $35,000,000
plus (ii) 50% of the cumulative amount of positive Consolidated Net Income for
each fiscal year ending after the Original Closing Date.
SECTION 6.13. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter to be
less than 1.50 to 1.00.
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower to
end on a day other than September 30.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate,
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69
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document, shall prove to have been false or
misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in Section 5.01(a), 5.05 or 5.07 or in Article
VI;
(e) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in any Loan Document (other than those specified
in (b), (c) or (d) above) and such default shall continue unremedied
for a period of 30 days after notice thereof from the Administrative
Agent or any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness in a principal amount in excess of $1,750,000, when
and as the same shall become due and payable, or (ii) fail to observe
or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of Holdings, the Borrower or
any Subsidiary, or of a substantial part of the property or assets of
Holdings, the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
seques- trator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or
assets of Holdings, the Borrower or a Subsidiary or (iii) the
winding-up or liquidation of Holdings, the Borrower or any Subsidiary;
and such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in
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70
a timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of the property or assets of
Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting
the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to
pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $1,750,000, which amount is not covered
by insurance (provided that in the event such a judgment is covered by
insurance, the Administrative Agent is provided with satisfactory
evidence that the insurance provider will provide the coverage relating
thereto) shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of Holdings,
the Borrower or any Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
(i) $1,000,000 in any year or (ii) $5,000,000 for all periods; or
(k) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement or to continue previously filed financing
statements prior to the expiration thereof and except to the extent
that such loss is covered by a lender's title insurance policy and the
related insurer promptly after such loss shall have acknowledged in
writing that such loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding, if any, to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding; and in any
event with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans
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71
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder and under any
other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any
other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders and the Issuing Bank (for purposes of
this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Issuing Bank and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Bank, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Bank all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or the Issuing Bank
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility in their capacity as such to
the Borrower or any other Loan Party on account of the failure of or delay in
performance
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72
or breach by any Lender or the Issuing Bank of any of its obligations hereunder
or to any Lender or the Issuing Bank on account of the failure of or delay in
performance or breach by any other Lender or the Issuing Bank or the Borrower or
any other Loan Party of any of their respective obligations hereunder or under
any other Loan Document or in connection herewith or therewith. Each of the
Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor, subject to the Borrower's approval, not to be
unreasonably withheld, so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments or Loans hereunder, as
applicable) of any expenses incurred for the benefit of the Lenders by the
Agents, including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, that shall not have been reimbursed
by the Borrower and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as Agent, or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower or any other Loan Party, provided that no Lender shall be liable to an
Agent or any such other indemnified Person for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross
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73
negligence or wilful misconduct of such Agent or any of its directors, officers,
employees or agents. Each Revolving Credit Lender agrees to reimburse and
indemnify the Issuing Bank to the same extent and subject to the same
limitations as provided for the Agents in the preceding sentence.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 2121 Brooks
Avenue, Neenah, WI 54956, Attention of President or Chief Financial
Officer (Telecopy No. (414) 729-3633) with copies to (which shall not
constitute notice to the Borrower) Citicorp Venture Capital, Ltd., 399
Park Avenue, 14th Floor, Zone 4, New York, NY 10043, Attention of Mr.
David F. Thomas and Mr. John D. Weber (Telecopy No. (212) 888-2940) and
Kirkland & Ellis, Citicorp Center, 153 East 53rd Street, New York, NY
10022, Attention of Kirk A. Radke, Esq. (Telecopy No. (212) 446-4900);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Manhattan Plaza, 8th
Floor, New York, New York 10081, Attention of Janet Belden (Telecopy
No. (212) 552-5658), with a copy to The Chase Manhattan Bank, 270 Park
Avenue, New York, New York 10017, Attention of Peter S. Predun
(Telecopy No. (212) 270-8963); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document
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shall be considered to have been relied upon by the Lenders and the Issuing Bank
and shall survive the making by the Lenders of the Loans and the issuance of
Letters of Credit by the Issuing Bank, regardless of any investigation made by
the Lenders or the Issuing Bank or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any Fee or any other amount then due and payable under this Agreement or any
other Loan Document is outstanding and unpaid (other than wholly-contingent
indemnification obligations) or any Letter of Credit is outstanding and so long
as the Commitments have not been terminated. The provisions of Sections 2.14,
2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of (a) the
Required Lenders, (b) each Additional Lender, (c) Lenders holding a majority in
aggregate principal amount of the Tranche A Term Loans and (d) Lenders holding a
majority in aggregate principal amount of the Tranche B Term Loans, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Holdings, the
Administrative Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of, or an Approved Fund with respect to, such Lender, (x) the Borrower
and the Administrative Agent (and, in the case of any assignment of a Revolving
Credit Commitment, the Issuing Bank) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed)
and (y) the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment), (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 and (iii) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and
Acceptance, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
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portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees
accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitments, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender 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
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the
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Issuing Bank and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Lenders and the Issuing Bank. No assignment shall be effective
unless it has been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same
extent as if they were Lenders and (iv) the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans or L/C Disbursements and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans or increasing or extending the
Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) Neither Holdings nor the Borrower shall assign or delegate any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Moody's
Investors Service, Inc., and Thompson's BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by InsuranceWatch
Ratings Service)) shall, after the date that any Lender becomes a Revolving
Credit Lender, downgrade the long-term certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch
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Ratings Service)), then the Issuing Bank shall have the right, but not the
obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, to replace (or to request the Borrower to use its
reasonable efforts to replace) such Lender with an assignee (in accordance with
and subject to the restrictions contained in paragraph (b) above), and such
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in paragraph (b) above) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the Issuing Bank or such assignee, as the case may be, shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and the Issuing Bank in connection
with the syndication of the credit facilities provided for herein and the
preparation and administration of this Agreement and the other Loan Documents or
in connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the reasonable fees, charges
and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to
indemnify the Administrative Agent, the Collateral Agent, each Lender and the
Issuing Bank, each Affiliate of any of the foregoing Persons and each of their
respective directors, officers, employees and agents (each such Person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any other Loan Document or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials on any property owned or operated by
the Borrower or any of the Subsidiaries, or any Environmental Claim related in
any way to the Borrower or the Subsidiaries; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of any Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions
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contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent, any Lender or the Issuing Bank. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Holdings against any of and all
the obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Holdings and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of
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interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
or extend the date for payment of the Commitment Fees of any Lender without the
prior written consent of such Lender, (iii) amend or modify the provisions of
Section 2.17 or 9.04(i), the provisions of this Section, the definition of the
term "Required Lenders" or release any Guarantor or all or any substantial part
of the Collateral, without the prior written consent of each Lender, (iv) change
the allocation between Tranche A Term Loans and Tranche B Term Loans of any
prepayment pursuant to Section 2.12 or 2.13 without the prior written consent of
(A) Lenders holding Tranche A Term Loans representing more than 50% of the
aggregate outstanding principal amount of the Tranche A Term Loans and (B)
Lenders holding Tranche B Term Loans representing more than 50% of the aggregate
outstanding principal amount of the Tranche B Term Loans, (v) decrease the
principal amount of, or extend the date for payment of, any prepayment of (A)
Tranche A Term Loans or (B) Tranche B Term Loans, in each case required pursuant
to Section 2.13 without the prior written consent of (x) Lenders holding Tranche
A Term Loans representing more than 50% of the aggregate outstanding principal
amount of the Tranche A Term Loans or (y) Lenders holding Tranche B Term Loans
representing more than 50% of the aggregate outstanding principal amount of the
Tranche B Term Loans, respectively, or (vi) amend Section 2.13(i) without the
prior written consent of Lenders holding Tranche B Term Loans representing more
than 50% of the aggregate outstanding principal amount of the Tranche B Term
Loans; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent or
the Issuing Bank hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the Collateral Agent or the Issuing
Bank.
(c) In addition, no waiver, amendment or modification of this Agreement
shall (i) change the allocation of any prepayment pursuant to Section 2.12 or
2.13 without the prior written consent of (A) Lenders holding Additional Tranche
B Term Loans representing more than 50% of the aggregate outstanding principal
amount of the Additional Tranche B Term Loans and (B) Acquisition Loan Lenders
having Acquisition Loans and unused Acquisition Loan Commitments representing
more than 50% of the sum of the aggregate outstanding principal amount of the
Acquisition Loans and unused Acquisition Loan Commitments, (ii) decrease the
principal amount of, or extend the date for payment of, any prepayment of (A)
Additional Tranche B Term Loans or (B) Acquisition Loans, in each case required
pursuant to Section 2.13 without the prior written consent of (A) Lenders
holding Additional Tranche B Term Loans representing more than 50% of the
aggregate outstanding principal amount of the Additional Tranche B Term Loans or
(B) Acquisition Loan Lenders having Acquisition Loans and unused Acquisition
Loan Commitments representing more than 50% of the sum of the aggregate
outstanding principal amount of the Acquisition Loans and unused Acquisition
Loan Commitments, respectively, or (iii) amend Section 2.13(i) without the prior
written consent of Lenders holding Additional Tranche B Term Loans representing
more than 50% of the aggregate outstanding principal amount of the Additional
Tranche B Term Loans.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all
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Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan or participation but were not payable as a result of the
operation of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or participations or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof (including, following the Restatement
Closing Date, the Commitment Letter dated March 16, 1998 among the
Administrative Agent, Chase Securities Inc. and the Borrower) is superseded by
this Agreement and the other Loan Documents and shall be terminated on the
Restatement Closing Date. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. 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 OR ANY OF THE OTHER LOAN DOCUMENTS.
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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
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.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
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SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower 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 the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Holdings or their
respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents 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 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority, (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents or (e) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.16 or (ii) becomes available to the Administrative Agent, the
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than the Borrower or Holdings. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender based on any of the foregoing) heretofore or hereafter received from
the Borrower or Holdings or any of their respective Affiliates and related to
the Borrower or Holdings, any shareholder or Affiliate of the Borrower or
Holdings or any employee, customer or supplier of the Borrower or Holdings,
other than any of the foregoing that were available to the Administrative Agent,
the Collateral Agent, the Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower or Holdings, and which are in
the case of Information provided after the date hereof, clearly identified at
the time
<PAGE> 87
82
of delivery as confidential. The provisions of this Section 9.16 shall remain
operative and in full force and effect regardless of the expiration and term of
this Agreement.
SECTION 9.17. Termination. Subject to the last sentence of Section
9.02, this Agreement and the other Loan Documents shall terminate when all the
Obligations have been indefeasibly paid in full, the Lenders have no further
commitment to lend, the L/C Exposure has been reduced to zero and the Issuing
Bank has no further commitment to issue Letters of Credit under this Agreement,
at which time the Collateral Agent shall execute and deliver to the Borrower,
Holdings and the Subsidiary Guarantors all Uniform Commercial Code termination
statements and similar documents which the Borrower, Holdings and the Subsidiary
Guarantors shall reasonably request to evidence such termination.
<PAGE> 88
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NEENAH FOUNDRY COMPANY,
by
/s/ James K. Hildebrand
------------------------------
Name: James K. Hildebrand
Title: Chief Executive Officer
NFC CASTINGS, INC.,
by
/s/ James K. Hildebrand
------------------------------
Name: James K. Hildebrand
Title: President
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent and IssuingBank,
by
/s/ Peter S. Predun
------------------------------
Name: Peter S. Predun
Title: Vice President
AMARA-1 FINANCE, LTD.,
by
/s/ Andrew Ian Wignall
------------------------------
Name: Andrew Ian Wignall
Title: Director
AMARA-2 FINANCE, LTD.,
by
/s/ Andrew Ian Wignall
------------------------------
Name: Andrew Ian Wignall
Title: Director
<PAGE> 89
84
BALANCED HIGH-YIELD FUND I LTD.,
by BHF-Bank Aktiengesellschaft, acting
through its New York branch as
attorney-in-fact,
by
/s/ John Sykes
-----------------------------
Name: John Sykes
Title: Vice President
by
/s/ Tony Heyman
------------------------------
Name: Tony Heyman
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ F.C.H. Ashby
-----------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
BANK ONE, WISCONSIN,
by
/s/ Mark P. Bruss
------------------------------
Name: Mark P. Bruss
Title: Vice President
BHF-BANK AKTIENGESELLSCHAFT,
by
/s/ John Sykes
------------------------------
Name: John Sykes
Title: Vice President
by
/s/ Tony Heyman
------------------------------
Name: Tony Heyman
Title: Assistant Vice President
CAPTIVA II FINANCE LTD.,
by
/s/ David Egglishaw
------------------------------
Name: David Egglishaw
Title: Director
<PAGE> 90
85
CYPRESSTREE INSTITUTIONAL FUND, LLC,
by CypressTree Investment Management
Company, Inc., its Managing Member
by
/s/ Timothy M. Barns
-----------------------------
Name: Timothy M. Barns
Title: Managing Director
CYPRESTREE INVESTMENT FUND, LLC,
by CypressTree Investment Management
Company, Inc., its Managing Member,
by
/s/ Timothy M. Barns
------------------------------
Name: Timothy M. Barns
Title: Managing Director
CYPRESSTREE SENIOR FLOATING RATE
FUND,
by CypressTree Investment Management
Company, Inc., as Portfolio Manager
by
/s/ Timothy M. Barns
------------------------------
Name: Timothy M. Barns
Title: Managing Director
THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ Kevin Christensen
------------------------------
Name: Kevin Christensen
Title: Vice President
FIRST SOURCE FINANCIAL LLP,
by First Source Financial, Inc., its
Agent/Manager,
by
/s/ David C. Wagner
------------------------------
Name: David C. Wagner
Title: Vice President
<PAGE> 91
86
HELLER FINANCIAL, INC.,
by
/s/ Linda W. Wolf
------------------------------
Name: Linda W. Wolf
Title: Senior Vice President
KZH III LLC,
by
/s/ Virginia Conway
------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH IV LLC,
by
/s/ Virginia Conway
------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
by
/s/ Virginia Conway
------------------------------
Name: Virginia Conway
Title: Authorized Agent
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.,
by
/s/ Gilles Marchand
------------------------------
Name: Gilles Marchand, CPA
Title: Authorized Signatory
NATIONAL CITY BANK,
by
/s/ Andrew J. Walshaw
------------------------------
Name: Andrew J. Walshaw
Title: Assistant Vice President
<PAGE> 92
87
NORTH AMERICAN SENIOR FLOATING
RATE FUND,
by CypressTree Investment Management
Company, Inc., as Portfolio Manager,
by
/s/ Timothy M. Barns
------------------------------
Name: Timothy M. Barns
Title: Managing Director
PACIFICA PARTNERS FUND,
by Imperial Credit Asset Management,
Inc., as Investment Advisors,
by
/s/ Stephen A. Bruce
------------------------------
Name: Stephen A. Bruce
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Lynn Konez
------------------------------
Name: Lynn Konez
Title: Vice President
SENIOR DEBT PORTFOLIO,
by Boston Management and Research, as
Investment Advisor,
by
/s/ Payson F. Swaffield
------------------------------
Name: Payson F. Swaffield
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
by
/s/ Jeffrey W. Maillet
------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President
and Director
