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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 21, 1999
PRINTPACK, INC.
---------------
(Exact name of Registrant as specified in Its Charter)
GEORGIA 333-13727 58-0673779
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(State of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
4335 Wendell Drive, S.W., Atlanta, Georgia 30336
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(Address of principle executive offices) (Zip Code)
(Telephone number of registrant) (404) 691-5830
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NOT APPLICABLE
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(Former Name, Former Address and Former Fiscal Year, if changed since
last report)
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ITEM 5. OTHER EVENTS
On May 21, 1999, Printpack, Inc., a Georgia corporation ("Printpack"),
amended and restated its Credit Agreement, a copy of which is attached as an
exhibit hereto. On the same date, Printpack also amended its Receivables
Purchase Agreement ("RPA"), originally dated as of August 22, 1996. The
amendment to the RPA is also attached as an exhibit hereto. Also attached as an
exhibit is a prior amendment to the RPA dated as of September 21, 1998.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
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EXHIBIT NO. DESCRIPTION
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99.1 Amended and Restated Credit Agreement, dated as of
May 21, 1999, among Printpack, Inc., the Institutions
from time to time parties thereto as lenders, and The
First National Bank of Chicago, as Agent.
99.2 Waiver and Amendment of Receivables Purchase
Agreement dated as of September 21, 1998, by and among
Flexible Funding Corp. as Seller, Falcon Asset
Securitization Corporation and The First National Bank
of Chicago, individually and as Agent.
99.3 Amendment of Receivables Purchase Agreement dated as of
May 21, 1999 by and among Flexible Funding Corp. as
Seller, Falcon Asset Securitization Corporation and The
First National Bank of Chicago, individually and as
Agent.
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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.
PRINTPACK, INC.
Date: June 9, 1999 By: /s/ R. Michael Hembree
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R. Michael Hembree
Vice President, Finance and
Administration
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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99.1 Amended and Restated Credit Agreement, dated as of
May 21, 1999, among Printpack, Inc., the Institutions
from time to time parties thereto as lenders, and The
First National Bank of Chicago, as Agent.
99.2 Waiver and Amendment of Receivables Purchase
Agreement dated as of September 21, 1998, by and among
Flexible Funding Corp. as Seller, Falcon Asset
Securitization Corporation and The First National Bank
of Chicago, individually and as Agent.
99.3 Amendment of Receivables Purchase Agreement dated as of May 21,
1999 by and among Flexible Funding Corp. as Seller, Falcon
Asset Securitization Corporation and The First National Bank of
Chicago, individually and as Agent.
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Exhibit 99.1
EXECUTION COPY
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AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 21, 1999
among
PRINTPACK, INC.,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
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BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Book Runner
and
SUN TRUST BANK, ATLANTA
as Documentation Agent
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SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms...............................................................................1
1.2 References.........................................................................................31
1.3 Supplemental Disclosure............................................................................31
1.4 Amendment and Restatement of Original Credit Agreement.............................................31
ARTICLE II: THE TERM LOANS AND REVOLVING LOAN FACILITIES
2.1. Term Loans.........................................................................................32
2.2 Revolving Loans....................................................................................33
2.3 Swing Line Loans....................................................................................34
2.4 Rate Options for all Advances......................................................................35
2.5 Optional Payments; Mandatory Prepayments...........................................................35
2.6 Reduction of Commitments...........................................................................38
2.7 Method of Borrowing................................................................................38
2.8 Method of Selecting Types and Interest Periods for Advances........................................38
2.9 Minimum Amount of Each Advance.....................................................................39
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.......................................................................39
2.11 Default Rate......................................................................................40
2.12 Collection Account Arrangements....................................................................40
2.13 Method of Payment.................................................................................40
2.14 Notes, Telephonic Notices.........................................................................40
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.......................................41
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions...........................................................47
2.17 Lending Installations.............................................................................47
2.18 Non-Receipt of Funds by the Agent.................................................................47
2.19 Termination Date..................................................................................48
2.20 Replacement of Certain Lenders....................................................................48
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue................................................................................49
3.2 Transitional Provision..............................................................................49
3.3 Types and Amounts..................................................................................49
3.4 Conditions.........................................................................................49
3.5 Procedure for Issuance of Letters of Credit........................................................50
3.6 Letter of Credit Participation.....................................................................50
3.7 Reimbursement Obligation...........................................................................51
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3.8 Cash Collateral....................................................................................51
3.9 Letter of Credit Fees..............................................................................52
3.10 Issuing Bank Reporting Requirements...............................................................52
3.11 Indemnification; Exoneration......................................................................53
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection...................................................................................54
4.2 Changes in Capital Adequacy Regulations............................................................55
4.3 Availability of Types of Advances..................................................................55
4.4 Funding Indemnification............................................................................55
4.5 Lender Statements; Survival of Indemnity...........................................................56
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit.............................................................56
5.2 Each Advance and Letter of Credit..................................................................57
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
6.1 Organization; Corporate Powers.....................................................................58
6.2 Authority..........................................................................................58
6.3 No Conflict; Governmental Consents.................................................................59
6.4 Financial Statements...............................................................................59
6.5 No Material Adverse Change.........................................................................60
6.6 Taxes..............................................................................................60
6.7 Litigation; Loss Contingencies and Violations......................................................61
6.8 Subsidiaries.......................................................................................61
6.9 ERISA..............................................................................................61
6.10 Accuracy of Information...........................................................................62
6.11 Securities Activities.............................................................................62
6.12 Material Agreements...............................................................................63
6.13 Compliance with Laws..............................................................................63
6.14 Assets and Properties.............................................................................63
6.15 Statutory Indebtedness Restrictions...............................................................63
6.16 Insurance.........................................................................................63
6.17 Labor Matters.....................................................................................64
6.18. Year 2000 Issues...............................................................................64
6.19 Environmental Matters.............................................................................64
6.20 Other Indebtedness.................................................................................65
6.21 Fiscal Periods....................................................................................65
ARTICLE VII: COVENANTS
7.1 Reporting..........................................................................................66
7.2 Affirmative Covenants..............................................................................72
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7.3 Negative Covenants.................................................................................77
7.4 Financial Covenants................................................................................88
ARTICLE VIII: DEFAULTS
8.1 Defaults...........................................................................................90
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1 Termination of Commitments; Acceleration...........................................................94
9.2 Defaulting Lender..................................................................................94
9.3 Amendments.........................................................................................95
9.4 Preservation of Rights.............................................................................97
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations.......................................................................97
10.2 Governmental Regulation...........................................................................97
10.3 Performance of Obligations........................................................................97
10.4 Headings..........................................................................................98
10.5 Entire Agreement..................................................................................98
10.6 Several Obligations; Benefits of this Agreement...................................................98
10.7 Expenses; Indemnification.........................................................................98
10.8 Numbers of Documents.............................................................................101
10.9 Accounting.......................................................................................101
10.10 Severability of Provisions......................................................................101
10.11 Nonliability of Lenders.........................................................................101
10.12 GOVERNING LAW...................................................................................101
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.........................................102
10.14 No Strict Construction..........................................................................103
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship..............................................................103
11.2 Powers...........................................................................................104
11.3 General Immunity.................................................................................104
11.4 No Responsibility for Loans, Creditworthiness, Collateral, Recitals, Etc.........................104
11.5 Action on Instructions of Lenders................................................................105
11.6 Employment of Agents and Counsel.................................................................105
11.7 Reliance on Documents; Counsel...................................................................105
11.8 The Agent's Reimbursement and Indemnification....................................................105
11.9 Rights as a Lender...............................................................................106
11.10 Lender Credit Decision..........................................................................106
11.11 Successor Agent.................................................................................106
11.12 Collateral Documents............................................................................107
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ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff...........................................................................................108
12.2 Ratable Payments.................................................................................108
12.3 Application of Payments..........................................................................108
12.4 Relations Among Lenders..........................................................................109
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns...........................................................................110
13.2 Participations...................................................................................110
13.3 Assignments......................................................................................111
13.4 Confidentiality..................................................................................112
13.5 Dissemination of Information.....................................................................112
ARTICLE XIV: NOTICES
14.1 Giving Notice....................................................................................113
14.2 Change of Address................................................................................113
ARTICLE XV: COUNTERPARTS
15.1 Counterparts.....................................................................................113
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Commitments
(Definitions)
EXHIBIT B-1 -- Form of Revolving Note
(Definitions)
EXHIBIT B-2 -- Form of Swing Line Note
(Definitions)
EXHIBIT B-3 -- Form of Tranche A Term Note
Definitions
EXHIBIT B-4 -- Form of Tranche B Term Note
Definitions
EXHIBIT C -- Form of Borrowing Notice (Section 2.8)
EXHIBIT D -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT E -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 13.3)
EXHIBIT F -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT G -- List of Closing Documents
(Section 5.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iv))
EXHIBIT I -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iv))
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SCHEDULES
Schedule 1.1.1 -- IHC Assets (Definitions)
Schedule 1.1.2 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.3 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.4 -- Permitted Existing Investments (Definitions)
Schedule 1.1.5 -- Permitted Existing Liens (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.3 -- Conflicts; Governmental Consents (Section 6.3)
Schedule 6.4 -- Financial Statements (Section 6.4(A))
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.16 -- Insurance (Sections 6.16 and 7.2(E))
Schedule 6.17 -- Labor Matters; Compensation Agreements
(Section 6.17)
Schedule 6.19 -- Environmental Matters (Section 6.19)
Schedule 6.21 -- Fiscal Periods (Section 6.21)
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of May 21, 1999 is
entered into among Printpack, Inc., a Georgia corporation, the institutions from
time to time parties hereto as Lenders, whether by execution of this Agreement
or an assignment and acceptance pursuant to Section 13.3, and The First National
Bank of Chicago, in its capacity as contractual representative for itself and
the other Lenders to amend and restate the "Original Credit Agreement" (as
defined below), which is hereby amended and restated in its entirety.
WHEREAS, the Borrower has requested and the Agent and the Lenders have
agreed to amend the Original Credit Agreement;
WHEREAS, the Borrower, the Lenders and the Agent have agreed to enter
into this Agreement in order to (i) amend and restate the Original Credit
Agreement in its entirety; (ii) re-evidence the Obligations, which shall be
repayable in accordance with the terms of this Agreement; and (iii) set forth
the terms and conditions under which the Lenders will, from time to time, make
loans and extend other financial accommodations to or for the benefit of the
Borrower; and
WHEREAS, it is the intention of the parties to this Agreement that this
Agreement not constitute a novation and that, from and after the Closing Date,
the Original Credit Agreement shall be amended and restated hereby and all
references herein to "hereunder," "hereof," or words of like import and all
references in any other Loan Document to the "Credit Agreement" or words of like
import shall mean and be a reference to the Original Credit Agreement as amended
and restated hereby (and any section references to the Original Credit Agreement
shall refer to the applicable equivalent provision set forth herein although the
section number thereof may have changed);
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrower by the Lenders and the Agent, the
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACCOMMODATION OBLIGATIONS" is defined in the definition "Contingent
Obligation" below.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any
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going business or all or substantially all of the assets of any firm,
corporation or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
of voting power) of the outstanding partnership interests of a partnership.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of Eurodollar Rate Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGENT" means First Chicago in its capacity as contractual
representative for itself and the Lenders pursuant to Article XI hereof and any
successor Agent appointed pursuant to Article XI hereof.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is
Sixty Million and 00/100 Dollars ($60,000,000.00).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Tranche A
Term Loan Commitments ($40,000,000) and the Tranche B Term Loan Commitments
($88,000,000) of all the Lenders. The Aggregate Term Loan Commitment is
One-Hundred and Twenty-Eight Million Dollars ($128,000,000).
"AGREEMENT" means this Credit Agreement, as it may be amended, restated
or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles in effect from time to time, applied in a manner consistent with that
used in preparing the financial statements referred to in Section 6.4(B)(1)
hereof, provided, however, that with respect to the calculation of financial
ratios and other financial tests required by this Agreement, "Agreement
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Accounting Principles" means generally accepted accounting principles as in
effect as of the date of this Agreement, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 6.4(B)(1)
hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Corporate Base Rate for such
day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with the
provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Rate Loans determined in
accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurodollar Margin applicable to
Revolving Loans in effect on such date.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person).
"AUTHORIZED OFFICER" means any of the President, Vice President-Finance
or Treasurer of the Borrower, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which the Borrower or
any other member of the Controlled Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means Printpack, Inc., a Georgia corporation, together with
its successors and assigns, including a debtor-in-possession on behalf of the
Borrower.
"BORROWER PLEDGE" means that certain Pledge Agreement dated as of the
Original Closing Date executed by the Borrower in favor of the Agent, as
amended, restated or otherwise modified
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from time to time, pursuant to which the Borrower has pledged to the Agent, for
the benefit of the Holders of Secured Obligations, (i) as of the Original
Closing Date, all of the Capital Stock of IHC and PRF and (ii) from time to time
after the Original Closing Date, all of the Capital Stock and/or other Equity
Interests in any other Person acquired by the Borrower.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING NOTICE" is defined in Section 2.8 hereof.
"BUSINESS ACTIVITY REPORT" means (A) a Notice of Business Activities
Report from the State of Minnesota, Department of Revenue, (B) a Notice of
Business Activities Report from the State of New Jersey, Division of Taxation,
or (C) any similar report required by any other State relating to the ability of
the Borrower or its Subsidiaries to enforce their accounts receivable claims
against account debtors located in any such state.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York and on which dealings in Dollars are carried on in the
London interbank market and (ii) for all other purposes a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the Borrower
and its Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by the
property, plant, equipment or similar fixed asset accounts reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries, other than
Permitted Acquisitions.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
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"CARRY-OVER AMOUNT" is defined in Section 7.4(C) hereof.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ten (10)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and the investments of which are limited to investment
grade securities (i.e., securities rated at least Baa by Moody's Investors
Service, Inc. or at least BBB by Standard and Poor's Rating Services, a division
of The McGraw-Hill Companies, Inc.); and (iv) commercial paper of United States
and foreign banks and bank holding companies and their subsidiaries and United
States and foreign finance, commercial industrial or utility companies which, at
the time of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings
Services or P-1 (or better) by Moody's Investors Services, Inc.; provided that
the maturities of such Cash Equivalents shall not exceed 365 days.
"CASH FLOW PERIOD" means, as separate periods, each fiscal year of the
Borrower.
"CASH MANAGEMENT AGREEMENTS" means the documents, agreements or
arrangements entered into between the Borrower or any of its Subsidiaries and
one or more of the Lenders or their affiliates with respect to the cash
management arrangements of the Borrower or such Subsidiaries, as the same may
from time to time be amended, modified, supplemented or restated.
"CASH MANAGEMENT OBLIGATIONS" means all obligations and liabilities
incurred by the Borrower (whether directly or as guarantor) or any of its
Subsidiaries under or in connection with the Cash Management Agreements.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) the Principals or their Related Parties cease to be the
"beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of at least eighty
percent (80%) of the combined voting power of the Borrower's
outstanding Capital Stock ordinarily having the right to vote at an
election of directors;
(b) the Principals or their Related Parties cease to have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the
Borrower; or
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(c) during any period of twelve (12) consecutive calendar
months, individuals:
(i) who were directors of the Borrower on the first
day of such period, or
(ii) whose election or nomination for election to the
board of directors of the Borrower was recommended or approved
by at least a majority of the directors then still in office
who were directors of the Borrower on the first day of such
period, or whose election or nomination for election was so
approved,
shall cease to constitute a majority of the board of directors
of the Borrower.
"CLOSING DATE" means the date on which the conditions for effectiveness
of this Agreement shall have taken effect and the Original Credit Agreement
shall, by the terms hereof, no longer be of any force or effect.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, or any successor statute.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by Enterprises, the Borrower or any of its Subsidiaries in or
upon which a security interest, lien or mortgage is granted to the Agent, for
the benefit of the Holders of Secured Obligations, or to the Agent, for the
benefit of the Lenders, whether under the Security Agreement, under any of the
other Collateral Documents or under any of the other Loan Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with the Original Credit Agreement or this Agreement that
are intended to create or evidence Liens to secure the Secured Obligations,
including, without limitation, the Security Agreement, the Mexican Pledge, the
Borrower Pledge, the Enterprises Pledge, and all other security agreements,
mortgages, deeds of trust, loan agreements, notes, guarantees, subordination
agreements, pledges, powers of attorney, consents, assignments, contracts, fee
letters, notices, leases, financing statements and all other written matter
whether heretofore, now, or hereafter executed by or on behalf of Enterprises or
the Borrower or any of its Subsidiaries and delivered to the Agent or any of the
Lenders, together with all agreements and documents referred to therein or
contemplated thereby.
"COLLECTION ACCOUNT" means each lock-box and blocked depository account
maintained by the Borrower, subject to a Collection Account Agreement, for the
collection of Receivables and other proceeds of Collateral.
"COLLECTION ACCOUNT AGREEMENT" means a written agreement among the
Borrower, the Agent, and, as applicable, each of the banks at which the Borrower
maintains a Collection Account.
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"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, collectively, such Lender's
Revolving Loan Commitment, Tranche A Term Loan Commitment and Tranche B Term
Loan Commitment.
"CONSOLIDATED ASSETS" means the total assets of the Borrower and its
Subsidiaries on a consolidated basis, but excluding therefrom all items that are
treated as intangibles under Agreement Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means (i) any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received (such obligations
under this clause (i) being sometimes referred to as "ACCOMMODATION
OBLIGATIONS") and (ii) any other contingent obligation or liability of such
Person, whether or not reflected in financial statements of such Person as a
liability.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the
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<PAGE> 15
Code) as the Borrower, any corporation described in clause (i) above or any
partnership or trade or business described in clause (ii) above.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such Person
(i) 90% or more of the total Equity Interests or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more wholly-owned Subsidiaries of such Person and (ii)
of which such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies, whether through the ownership
of voting securities, by agreement or otherwise.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(D) hereof.
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if
foreclosure, distraint, sale or other similar proceedings shall not
have been commenced) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not yet due or which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the PBGC) incurred or deposits made in the ordinary course of
business in connection with worker's compensation, unemployment
insurance or other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), surety, appeal and performance bonds;
provided that (A) all such Liens do not in the aggregate materially
detract from the value of the Borrower's or such Subsidiary's assets or
property taken as a whole or materially impair the use thereof in the
operation of the businesses taken as a whole, and (B) all Liens
securing bonds to stay judgments or in
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<PAGE> 16
connection with appeals do not secure at any time an aggregate amount
exceeding $5,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the
Borrower or any of its Subsidiaries which do not constitute a Default
under Section 8.1(h) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business.
"DECISION PERIOD" is defined in Section 7.2(G) hereof.
"DECISION RESERVE" is defined in Section 7.2(G) hereof.
"DEFAULT" means an event described in Article VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the Tranche B Term Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period of (i) Net
Income, plus (ii) Interest Expense, plus (iii) charges against income for
foreign, federal, state and local taxes, plus (iv) depreciation expense, plus
(v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets, Original Transaction Costs and fees, costs
and expenses in connection with this Agreement and the other Loan Documents and
in connection with Permitted Acquisitions, plus (vi) other non-cash charges
classified as long-term deferrals in accordance with Agreement Accounting
Principles.
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"ENTERPRISES" means Printpack Enterprises, Inc., a Georgia corporation,
and owner of 99.77% of the Capital Stock of the Borrower, together with its
successors and assigns, including a debtor-in-possession on behalf of
Enterprises.
"ENTERPRISES GUARANTY" means that certain Guaranty dated as of the
Original Closing Date executed by Enterprises in favor of the Agent for the
benefit of the Holders of Secured Obligations, as amended, restated or otherwise
modified from time to time.
"ENTERPRISES PLEDGE" means that certain Pledge Agreement dated as of
the Original Closing Date executed by Enterprises in favor of the Agent, as
amended, restated or otherwise modified from time to time, pursuant to which
Enterprises has pledged to the Agent, for the benefit of the Holders of Secured
Obligations, all of the Capital Stock of the Borrower owned by Enterprises.
"ENVIRONMENTAL AUDIT" means the Environmental Audit dated July 24,
1996, prepared for the Borrower by ESCM & Associates, Inc., including the Phase
I Environmental Property Assessments for Printpack facilities and certain
facilities acquired from James River Corporation of Virginia appended thereto.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., aND the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Borrower's present and future (i)
equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible
personal property (other than the Borrower's Inventory), and (iii) any and all
accessions, parts and appurtenances attached to any
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<PAGE> 18
of the foregoing or used in connection therewith, and any substitutions therefor
and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan
for the relevant Interest Period, the applicable London interbank offered rate
for deposits in U.S. dollars appearing on Dow Jones Markets (Telerate) Page 3750
as of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, as
adjusted for Reserves; provided that, if Dow Jones Markets (Telerate) Page 3750
is not available for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable London interbank
offered rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, as
adjusted for Reserves.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for the
relevant Interest Period, the Eurodollar Base Rate applicable to such Interest
Period plus the then Applicable Eurodollar Margin. The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EXCESS CASH FLOW" means, for any Cash Flow Period, an amount equal to
the Borrower's and its Subsidiaries' consolidated (i) EBITDA for such period,
minus (ii) income taxes paid in cash for such period, minus (iii) Capital
Expenditures paid in cash during such period, minus (iv) cash charges related to
plant closings and early retirement programs for such period, such as severance
and equipment relocation charges and termination and modification of benefit
programs, minus (v) Interest Expense for such period, minus (vi) scheduled
amortization of the principal portion of the Term Loans and scheduled
amortization of the principal portion of all other Indebtedness of the Borrower
and its Subsidiaries during such period, minus (vii) cash payments in respect of
extraordinary and nonrecurring items, minus (viii) the increase (or plus the
decrease) in Working Capital during such period, in each case as calculated in
accordance with Agreement Accounting
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Principles. All such amounts shall be calculated assuming that the Borrower has
conducted its business in the ordinary course and in accordance with past
practices.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person pursuant to a registered offering
or private placement.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the sum of the Alternate Base Rate for such day, changing and as the
Alternate Base Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means a plan which would be a Benefit
Plan except that such plan is maintained or contributed to by an entity which is
not a U.S. business entity.
"GOVERNMENTAL ACTS" is defined in Section 3.11(a) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"HEDGING AGREEMENTS" is defined in Section 7.3(Q) hereof.
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"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans, (ii) the Issuing Bank in respect of Reimbursement Obligations, (iii)
the Agent, the Lenders, the Swing Line Bank and the Issuing Bank in respect of
all other present and future obligations and liabilities of the Borrower, any of
its Subsidiaries, Holdings or Enterprises of every type and description arising
under or in connection with this Agreement or any other Loan Document, (iv) each
Indemnitee in respect of the obligations and liabilities of the Borrower to such
Person hereunder, (v) each Lender (or affiliate thereof), in respect of all
Hedging Obligations of the Borrower to such Lender (or such affiliate) as
exchange party or counterparty under any Hedging Agreement, (vi) each Lender (or
affiliate thereof), in respect of all Cash Management Obligations of the
Borrower to such Lender (or such affiliate) in connection with any Cash
Management Agreement, and (vii) their respective successors, transferees and
assigns.
"HOLDINGS" means Printpack Holdings, Inc., a Delaware corporation, and
owner of 97.39% of the Capital Stock of Enterprises, together with its
successors and assigns, including a debtor-in-possession on behalf of Holdings.
"HOLDINGS GUARANTY" means that certain Guaranty as of the Original
Closing Date and reaffirmed as of even date herewith executed by Holdings in
favor of the Agent for the benefit of the Holders of Secured Obligations, as
amended, restated or otherwise modified from time to time.
"IHC" means Printpack Illinois, Inc., an Illinois corporation, together
with its successors and assigns, including a debtor-in-possession on behalf of
IHC.
"IHC AGREEMENTS" means the Intercorporate Services Agreement between
the Borrower and IHC, the respective Trademark License Agreements between IHC
and the Borrower, Holdings, Enterprises and Empaques Printpack de Mexico, S.A.
de C.V., and the respective Intellectual Property License Agreements between IHC
and the Borrower, Holdings, Enterprises and Empaques Printpack de Mexico, S.A.
de C.V., in each case dated as of June 30, 1996.
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<PAGE> 21
"IHC ASSETS" means certain intellectual property, certain tangible
assets located in Elgin, Illinois, and certain Equity Interests in the Mexican
Subsidiaries, as more specifically described on Schedule 1.1.1 to this
Agreement.
"INDEBTEDNESS" of any Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from property or assets now or hereafter owned or
acquired by such Person, (d) obligations which are evidenced by notes,
acceptances or other instruments, (e) Capitalized Lease Obligations, (f)
Contingent Obligations, (g) obligations with respect to letters of credit, (h)
Hedging Obligations, (i) Cash Management Obligations, (j) Off Balance Sheet
Liabilities and (k) Disqualified Stock as provided in Section 7.3(M). The amount
of Indebtedness of any Person at any date shall be without duplication (i) the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability of any such Contingent Obligations at such date
and (ii) in the case of Indebtedness of others secured by a Lien to which the
property or assets owned or held by such Person is subject, the lesser of the
fair market value at such date of any asset subject to a Lien securing the
Indebtedness of others and the amount of the Indebtedness secured. In the case
of PRF, Indebtedness shall include the unrecovered investment of purchasers of
Receivables from PRF pursuant to the Receivables Purchase Documents, and such
Indebtedness shall be deemed to be funded Indebtedness for purposes of Section
7.1(G).
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INTEREST EXPENSE" means, for any period, the sum of (i) the total
interest expense of the Borrower and its consolidated Subsidiaries, whether paid
or accrued (including the interest component of Capitalized Leases, commitment
and letter of credit fees, and discount and other fees and charges incurred
under the Receivables Purchase Documents), but excluding interest expense not
payable in cash (including amortization of discount), and (ii) the product of
(a) all cash dividend payments on any series of preferred stock issued by the
Borrower or any of its Subsidiaries, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of the Borrower, expressed as a
decimal, in each case on a consolidated basis, all as determined in conformity
with Agreement Accounting Principles.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a
period of one (1), two (2), three (3) months or six (6) months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months thereafter; provided, however, that if there
is no such numerically corresponding day in such next, second, third or sixth
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<PAGE> 22
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Borrower, which are held for sale or lease, furnished
under any contract of service or held as raw materials, work in process or
supplies, and all materials used or consumed in the Borrower's business, and
shall include all right, title and interest of the Borrower in any property the
sale or other disposition of which has given rise to Receivables and which has
been returned to or repossessed or stopped in transit by the Borrower.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means First Chicago and SunTrust Bank, Atlanta, and any
other Lender which, at the Borrower's request, agrees, in each such Lender's
sole discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit, and their respective successors and assigns, in each case in such
Lender's separate capacity as an issuer of Letters of Credit pursuant to Article
III hereof. The designation of any Lender as an Issuing Bank after the date
hereof shall be subject to the prior written consent of the Agent.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C INTEREST" is defined in Section 3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate face amount of all
Letters of Credit
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<PAGE> 23
requested by the Borrower but not yet issued (unless the request for an unissued
Letter of Credit has been denied).
"LEAD ARRANGER" means Banc One Capital Markets, Inc., and its
successors, in its capacity as lead arranger and sole book runner for the
transaction evidenced by this Agreement and the other Loan Documents.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means the letters of credit to be (a) issued by the
Issuing Banks pursuant to Section 3.1 hereof or (b) any letter of credit issued
pursuant to the Original Credit Agreement and outstanding on the Closing Date or
deemed issued by the Issuing Banks pursuant to Section 3.2 hereof.
"LEVERAGE RATIO" is defined in Section 7.4(B) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to Section 2.1 or Section 2.2 hereof, as applicable, and
in the case of the Swing Line Bank, any Swing Line Loan made pursuant to Section
2.3 hereof, and collectively all Tranche A Term Loans, Tranche B Term Loans,
Revolving Loans and Swing Line Loans, whether made or continued as or converted
to Floating Rate Loans or Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.15(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the L/C Documents,
the Collateral Documents, the Parent Agreements, the fee agreement referred to
in Section 2.15(C)(ii) and all other documents, instruments and agreements
executed in connection therewith or contemplated thereby, as the same may be
amended, restated or otherwise modified and in effect from time to time.
"MANAGEMENT" means those employees or former employees of the Borrower
holding common stock of Holdings, Enterprises or the Borrower as of the Closing
Date and from time to time thereafter.
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<PAGE> 24
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, or the Borrower and its Subsidiaries,
taken as a whole, (b) the ability of the Borrower or any of its Subsidiaries to
perform their respective obligations under the Loan Documents in any material
respect, or (c) the ability of the Lenders or the Agent to enforce in any
material respect the Obligations or their rights with respect to the Collateral.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
Aggregate Revolving Loan Commitment at such time minus the amount of any
Decision Reserve in effect at such time.
"MEXICAN PLEDGE" means that certain Pledge Agreement as of the Original
Closing Date executed by the Borrower in favor of the Agent, as amended,
restated or otherwise modified from time to time, pursuant to which the Borrower
has pledged to the Agent, for the benefit of the Holders of Secured Obligations,
sixty-five percent (65%) of the Capital Stock of Empaques Printpack de Mexico,
S.A. de C.V.
"MEXICAN SUBSIDIARIES" means, collectively, (i) Printpack Packaging de
Mexico, S.A. de C.V., (ii) Servicios Printpack de Mexico, S.A. de C.V., (iii)
Printpack de Mexico, S.A. de C.V., and (iv) Empaques Printpack de Mexico, S.A.
de C.V., each a Mexican corporation, together with their respective successors
and assigns.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale or Financing
by any Person, (a) cash (freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such Asset Sale (including cash
received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale) or Financing,
after (i) provision for all income or other taxes measured by or resulting from
such Asset Sale, (ii) payment of all brokerage commissions and other fees and
expenses related to such Asset Sale or Financing, (iii) all amounts used to
repay Indebtedness secured by a Lien on any asset disposed of in such Asset Sale
or which is or may be required (by the express terms of the instrument governing
such Indebtedness) to be repaid in connection with such Asset Sale (including
payments made to obtain or avoid the need for the consent of any holder of such
Indebtedness) or Financing consisting of Permitted Refinancing Indebtedness, and
(iv) deduction of appropriate amounts to be provided by such Person or a
Subsidiary of such Person as a reserve, in accordance with Agreement Accounting
Principles, against any liabilities associated with the assets sold or disposed
of in such Asset Sale and
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<PAGE> 25
retained by such Person or a Subsidiary of such Person after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters or against any
indemnification obligations associated with the assets sold or disposed of in
such Asset Sale; and (b) cash payments in respect of any Indebtedness, Equity
Interest or other consideration received by such Person or any Subsidiary of
such Person from such Asset Sale upon receipt of such cash payments by such
Person or such Subsidiary.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles; provided, that when calculating Net Income the
following items shall be excluded from such calculation: (i) the earnings (but
not loss) of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting, except to the extent of the amount of dividends or
distributions paid in cash to the Borrower or a consolidated Subsidiary; (ii)
the earnings of a Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary to the Borrower with
respect to such earnings is not, at the date of determination, permitted without
the prior approval of a Governmental Authority (and such approval has not been
obtained), or is prohibited, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary or the holders of
its Capital Stock, (iii) the cumulative effect of a change in accounting
principles and (iv) nonrecurring items, such as gains or losses on the sale of
assets or any Restructuring Items; but when calculating Net Income such
calculation shall include historical audited Net Income (as calculated above)
for such period of any Person (or division of such Person) that became a
Subsidiary of the Borrower during such period or was merged into or was
consolidated with the Borrower or any of its Subsidiaries during such period, or
where the assets of such Person (or division of such Person) were acquired by
the Borrower or any of its Subsidiaries during such period, whether accrued
prior or subsequent to the date of such acquisition, merger or consolidation.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"NOTES" means the Revolving Notes, Swing Line Note and Term Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the Agent, any
Lender, any affiliate of the Agent or any Lender, the Swing Line Bank, any
Issuing Bank, or any Indemnitee, of any kind or nature, present or future,
arising under the Original Credit Agreement or this Agreement, the Notes, the
L/C Documents, the Collateral Documents or any other Loan Document, whether or
not evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges,
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expenses, fees, attorneys' fees and disbursements, paralegals' fees (in each
case whether or not allowed), and any other sum chargeable to the Borrower under
this Agreement or any other Loan Document.
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any liability
under any sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person, (b) any liability under any financing
lease, tax retention operating lease or so-called "synthetic" lease transaction,
or (c) any obligations arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"ORFLEX GUARANTY" means the Guarantee executed by the Borrower in favor
of PNC Bank, Ohio, National Association ("PNC"), pursuant to which the Borrower
guarantees the payment of the indebtedness of Orflex, Ltd. ("Orflex") under that
certain Loan Agreement dated January 5, 1995 (as amended, modified, supplemented
or restated from time to time) between Orflex and PNC, as more specifically
described in Schedule 1.1.2 hereto.
"ORIGINAL CLOSING DATE" means August 22, 1996.
"ORIGINAL CREDIT AGREEMENT" means the Credit Agreement dated as of
August 22, 1996 among the Borrower, the lenders parties thereto and the Agent,
as the same was amended by Amendment No. 1 dated as of September 5, 1997 and
Amendment No. 2 dated as of October 31, 1997.
"ORIGINAL TRANSACTION COSTS" means the fees, costs and expenses payable
by the Borrower in connection with the execution, delivery and performance of
the Original Credit Agreement and the related documents, instruments and
agreement, the issuance of the Senior Subordinated Notes and Senior Notes, and
the consummation of the acquisition by the Borrower of certain of the assets and
liabilities of the flexible packaging group of James River Corporation and its
Affiliates pursuant to an Asset Purchase Agreement dated as of April 10, 1996,
as amended through the Original Closing Date and the related transactions.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARENT AGREEMENTS" means, collectively, the Enterprises Guaranty,
Enterprises Pledge and Holdings Guaranty.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each fiscal quarter of
the Borrower.
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"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) (iii) hereof.
"PERMITTED ADDITIONAL SUBORDINATED INDEBTEDNESS" is defined in Section
7.3(A)(viii) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrower and its Subsidiaries identified as such on Schedule
1.1.2 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.3 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.5 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
7.3(A)(iii) hereof.
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer by
the Borrower to PRF of "Receivables" and "Related Security" under and as such
terms are defined in the Receivables Sale Agreement, in accordance with the
terms of the Receivables Sale Agreement and/or (ii) a sale by PRF to purchasers
in accordance with the terms of the Receivables Purchase Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness (other than the Subordinated Notes)
permitted by this Agreement that (i) does not exceed the aggregate principal
amount (plus accrued interest and any applicable premium and associated fees and
expenses) of the Indebtedness being replaced, renewed, refinanced or extended,
(ii) does not have a Weighted Average Life to Maturity at the time of such
replacement, renewal, refinancing or extension that is less than the Weighted
Average Life to Maturity of the Indebtedness being replaced, renewed, refinanced
or extended, (iii) does not rank at the time of such replacement, renewal,
refinancing or extension senior to the Indebtedness being replaced, renewed,
refinanced or extended, and (iv) does not contain terms (including, without
limitation, terms relating to security, amortization, interest rate, premiums,
fees, covenants, subordination, events of default and remedies) materially less
favorable to the Borrower or to the Lenders, taken as a whole, than those
applicable to the Indebtedness being replaced, renewed, refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other
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<PAGE> 28
entity of any kind, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PRF" means Flexible Funding Corp., a Delaware corporation, together
with its successors and assigns, including a debtor-in-possession on behalf of
PRF.
"PRINCIPALS" means Dennis M. Love, James E. Love, III, Carol Anne Love
Jennison, William J. Love, Charles Keith Love, David M. Love and Gay Love.
"PRO RATA SHARE" means, with respect to any Lender, (i) at any time
prior to the Closing Date, the percentage obtained by dividing (A) such Lender's
Commitments at such time (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement) by (B) the sum of the
Aggregate Term Loan Commitment and the Aggregate Revolving Loan Commitment at
such time and (ii) at any time after the Closing Date, the percentage obtained
by dividing (A) the sum of such Lender's Term Loans and Revolving Loan
Commitment at such time (in each case, as adjusted from time to time in
accordance with the provisions of this Agreement) by (B) the sum of the
aggregate amount of all of the Term Loans and the Aggregate Revolving Loan
Commitment at such time; provided, however, if all of the Commitments are
terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means
the percentage obtained by dividing (x) the sum of such Lender's Term Loans and
Revolving Loans and, in the case of the Swing Line Bank, Swing Line Loans, by
(y) the aggregate amount of all Term Loans, Revolving Loans and Swing Line
Loans.
"PURCHASERS" is defined in Section 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
"RECEIVABLE(S)" means and includes all of the Borrower's presently
existing and hereafter arising or acquired accounts, accounts receivable, and
all present and future rights of the Borrower to payment for goods sold or
leased or for services rendered (except those evidenced by instruments or
chattel paper), whether or not they have been earned by performance, and all
rights in any merchandise or goods which any of the same may represent, and all
rights, title, security and guaranties with respect to each of the foregoing,
including, without limitation, any right of stoppage in transit; provided,
however, that Receivables that are transferred to PRF pursuant to a Permitted
Receivables Transfer shall be deemed not to be Receivables hereunder, until such
time, if any, as any such Receivables are repurchased by or otherwise
transferred to the Borrower pursuant to the terms of the Receivables Sale
Agreement or otherwise; provided further, that upon any such Permitted
Receivables Transfer, the Lien of the Agent shall automatically attach to the
proceeds of such sale.
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<PAGE> 29
"RECEIVABLES PURCHASE AGREEMENT" means that certain Receivables
Purchase Agreement dated as of August 22, 1996, as amended as of September 21,
1998 and as of the date hereof, among PRF, Falcon Asset Securitization
Corporation ("FALCON"), the other purchasers party thereto and First Chicago as
agent for Falcon and such other purchasers, as such agreement may be amended,
restated or otherwise modified from time to time in accordance with the terms
hereof, or any replacement or substitution therefor.
"RECEIVABLES PURCHASE DOCUMENTS" means the Receivables Sale Agreement
and the Receivables Purchase Agreement.
"RECEIVABLES SALE AGREEMENT" means that certain Receivables Sale
Agreement dated as of August 22, 1996 between the Borrower and PRF, pursuant to
which the Borrower shall sell to PRF all of its "Receivables" and "Related
Security" (as such terms are defined therein), as such agreement may be amended,
restated or otherwise modified from time to time in accordance with the terms
hereof, or any replacement or substitution therefor.
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying Margin
Stock applicable to member banks of the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
obtaining of credit by borrowers for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELATED PARTY" with respect to any Principal means (A) any spouse or
immediate family member of such Principal or (B) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding the outstanding Equity Interests of which
consist of such Principal and/or such other Persons referred to in the
immediately preceding clause (A).
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<PAGE> 30
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, provided, however, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66-2/3%); provided, however, that, if any of the Lenders shall have wrongfully
failed to fund its Revolving Loan Pro Rata Share of any Revolving Loan requested
by the Borrower, or any Swing Line Loan as requested by the Agent, which such
Lenders are obligated to fund under the terms of this Agreement and any such
failure has not been cured, then for so long as such failure continues,
"REQUIRED LENDERS" means Lenders (excluding all Lenders whose failure to fund
their respective Revolving Loan Pro Rata Shares of such Revolving Loans or Swing
Line Loans has not been so cured) whose Pro Rata Shares represent at least
sixty-six and two-thirds percent (66-2/3%) of the aggregate Pro Rata Shares of
such Lenders; provided further, however, that, if the Commitments have been
terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are equal to or greater than sixty-six and two-thirds percent (66-2/3%).
"REQUIRED REVOLVING LOAN LENDERS" means Lenders whose Revolving Loan
Pro Rata Shares, in the aggregate, are equal to or greater than sixty-six and
two-thirds percent (66-2/3%); provided, however, that, if any of the Lenders
shall have wrongfully failed to fund its Revolving Loan Pro Rata Share of any
Revolving Loan requested by the Borrower, or any Swing Line Loan as requested by
the Agent, which such Lenders are obligated to fund under the terms of this
Agreement and any such failure has not been cured, then for so long as such
failure continues, "REQUIRED LENDERS" means Lenders (excluding all Lenders whose
failure to fund their respective Revolving Loan Pro Rata Shares of such
Revolving Loans or Swing Line Loans has not been so cured) whose Revolving Loan
Pro Rata Shares represent at least sixty-six and two-thirds percent (66-2/3%) of
the aggregate Revolving Loan Pro Rata Shares of such Lenders; provided further,
however, that, if the Revolving Loan Commitments have been terminated pursuant
to the terms of this Agreement, "REQUIRED REVOLVING LOAN LENDERS" means Lenders
(without regard to such Lenders' performance
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of their respective obligations hereunder) whose aggregate ratable shares
(stated as a percentage) of the aggregate outstanding principal balance of all
Loans and L/C Obligations are equal to or greater than sixty-six and two-thirds
percent (66-2/3%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor), with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined or category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED INVESTMENT" means any Investment other than an Investment
permitted by Section 7.3(D) (other than clause (xi) thereof).
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Borrower now or
hereafter outstanding, except a dividend payable solely in the Borrower's
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to purchase such Capital Stock, (ii) any redemption, retirement, purchase
or other acquisition for value, direct or indirect, of any Equity Interests of
the Borrower or any of its Subsidiaries now or hereafter outstanding, other than
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness prior to the stated maturity thereof, other than
the Obligations and other than with the proceeds of Permitted Refinancing
Indebtedness, (iv) any payment of a claim for the rescission of the purchase or
sale of, or for material damages arising from the purchase or sale of, any
Indebtedness (other than the Obligations) or any Equity Interests of the
Borrower or any of the Borrower's Subsidiaries, or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission, and (v) any Restricted Investment.
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<PAGE> 32
"RESTRUCTURING ITEMS" shall mean the charges or reserves taken on the
financial statements of the Borrower or any of its Subsidiaries in accordance
with Agreement Accounting Principles in connection with severance, plant
closings, equipment relocations or other charges related to the consolidation or
rationalization of operations.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount at such time exceeds the
Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the outstanding principal amount of the Swing Line Loans at such time,
plus (iii) the L/C Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit not exceeding the amount set forth on Exhibit A to this Agreement
opposite its name thereon under the heading "Revolving Loan Commitment" or on
Schedule 1 of the assignment and acceptance by which it became a Lender, as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable assignment and acceptance.
"REVOLVING LOAN PRO RATA SHARE" shall mean, at any particular time and
with respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then aggregate amount of such Lender's Revolving
Loan Commitment (or, if such Revolving Loan Commitments have been terminated,
the outstanding principal balance of such Lender's Revolving Loans) and the
denominator of which shall be the then aggregate amount of all Revolving Loan
Commitments (or, if such Revolving Loan Commitments have been terminated, the
outstanding principal balance of all Revolving Loans).
"REVOLVING LOAN TERMINATION DATE" means December 31, 2003.
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit B-1 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Revolving Loan Commitment, including any amendment,
restatement, modification, renewal or replacement of such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations; (ii)
all Hedging Obligations owing under Hedging Agreements to any Lender or any
affiliate of any Lender; and (iii) all Cash
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<PAGE> 33
Management Obligations owing under Cash Management Agreements to any Lender or
any affiliate of any Lender.
"SECURITY AGREEMENT" means that certain Security Agreement dated as of
the Original Closing Date and reaffirmed as of the Closing Date executed by the
Borrower in favor of the Agent for the benefit of the Holders of Secured
Obligations, as amended, restated or otherwise modified from time to time.
"SENIOR NOTE INDENTURE" means that certain Indenture dated as of August
22, 1996, between the Borrower and Fleet National Bank, as Trustee, as amended,
supplemented or modified in accordance with Section 7.3(R) hereof.
"SENIOR NOTES" means those certain Senior Notes due 2004, issued by the
Borrower in the aggregate principal amount of $100,000,000 pursuant to the
Senior Note Indenture, as amended, supplemented or modified in accordance with
Section 7.3(R) hereof.
"SENIOR SUBORDINATED NOTE INDENTURE" means that certain Indenture dated
as of August 22, 1996, between the Borrower and Fleet National Bank, as Trustee,
as amended, supplemented or modified in accordance with Section 7.3(R) hereof.
"SENIOR SUBORDINATED NOTES" means those certain Senior Subordinated
Notes due 2006, issued by the Borrower in the aggregate original principal
amount of $200,000,000 pursuant to the Senior Subordinated Note Indenture, as
amended, supplemented or modified in accordance with Section 7.3(R) hereof.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBORDINATED INDEBTEDNESS" means, collectively, (i) the Senior
Subordinated Notes, (ii) the Subordinated Notes, and (ii) any Permitted
Additional Subordinated Indebtedness.
"SUBORDINATED NOTE AGREEMENT" means that certain Note Purchase
Agreement dated March 13, 1995, as amended as of the Original Closing Date,
between the Borrower and the purchasers named therein, as amended, supplemented
or modified in accordance with Section 7.3(R) hereof.
"SUBORDINATED NOTES" means those certain 11.00% Subordinated Notes due
May 4, 2014, issued by the Borrower in the aggregate principal amount of
$10,384,000 pursuant to the Subordinated Note Agreement, as amended,
supplemented or modified in accordance with Section 7.3(R) hereof.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly
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<PAGE> 34
or indirectly, by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries, or (ii) any partnership,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a Subsidiary of the Borrower.
"SWING LINE BANK" means First Chicago or any other Lender as a
successor Swing Line Bank.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $10,000,000 at any one
time outstanding.
"SWING LINE LOAN" means (a) any Swing Line Loan made pursuant to the
Original Credit Agreement and outstanding on the Closing Date and (b) any Loan
made available to the Borrower by the Swing Line Bank pursuant to Section 2.3
hereof.
"SWING LINE NOTE" means a promissory note, in substantially the form of
Exhibit B-2 hereto, duly executed by the Borrower and payable to the order of
the Swing Line Bank in the amount of its Swing Line Commitment, including any
amendment, restatement, modification, renewal or replacement of such Swing Line
Note.
"TAX ALLOCATION AGREEMENT" means the Tax Allocation Agreement among the
Borrower and, Holdings, Enterprises, IHC and PRF, as executed by such parties as
of the Original Closing Date.
"TAX INCENTIVE PROGRAM" means the Payment in Lieu of Taxes Program
sponsored by the Industrial Development Board ("IDB") of the City of Jackson,
Tennessee, pursuant to which (a) real property and equipment associated with the
Jackson, Tennessee, operations are transferred to the IDB in exchange for a
non-interest bearing promissory note in an original amount equal to the fair
market value of the property so transferred, (b) the IDB leases such transferred
property to the Borrower pursuant to a lease having no interest component and
providing for rental payments that match the payment terms of the related
promissory note, and (c) the Borrower pays a fee to the IDB that is
substantially less than the property taxes that it would otherwise pay if it
were not participating in such Payment in Lieu of Taxes Program.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination of the Aggregate Revolving
Loan Commitment pursuant to Section 2.6 hereof or the Revolving Loan Commitments
pursuant to Section 9.1 hereof.
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"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which within a twelve-month
period results in the termination of employment of twenty percent (20%) of
Benefit Plan participants who are employees of the Borrower or any member of the
Controlled Group; (iii) the imposition of an obligation on the Borrower or any
member of the Controlled Group under Section 4041 of ERISA to provide affected
parties written notice of intent to terminate a Benefit Plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the institution by the
PBGC of proceedings to terminate a Benefit Plan; (v) any event or condition
which could reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or any
member of the Controlled Group from a Multiemployer Plan.
"TERM LOANS" means, collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TERM NOTES" means, collectively, the Tranche A Term Notes and the
Tranche B Term Notes.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of Indebtedness of the Borrower and its
Subsidiaries, other than (i) Hedging Obligations and (ii) the sum of the amounts
then available for drawing under Letters of Credit.
"TRANCHE A PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator of
which shall be the then outstanding principal balance of such Lender's Tranche A
Term Loans and the denominator of which shall be the then outstanding principal
balance of all Tranche A Term Loans.
"TRANCHE A TERM LOAN" is defined in Section 2.1(A) hereof.
"TRANCHE A TERM LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make its Tranche A Term Loan pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amount
set forth on Exhibit A to this Agreement opposite its name thereon under the
heading "Tranche A Term Loan Commitment", as such amount may be modified from
time to time pursuant to the terms hereof.
"TRANCHE A TERM LOAN LENDER" means any Lender with a Tranche A Term
Loan Commitment.
"TRANCHE A TERM LOAN TERMINATION DATE" means the earlier of (a)
December 31, 2003 or (b) the date of termination of the Revolving Loan
Commitments pursuant to Section 2.6 or Section 9.1.
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"TRANCHE A TERM NOTE" means a promissory note, in substantially the
form of Exhibit B-3 hereto, duly executed by the Borrower and payable to the
order of a Lender in the amount of its Tranche A Term Loan Commitment, including
any amendment, restatement, modification, renewal or replacement of such Tranche
A Term Note.
"TRANCHE B PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the numerator of
which shall be the then outstanding principal balance of such Lender's Tranche B
Term Loans and the denominator of which shall be the then outstanding principal
balance of all Tranche B Term Loans.
"TRANCHE B TERM LOAN" is defined in Section 2.1(B) hereof.
"TRANCHE B TERM LOAN COMMITMENT" means, for each Lender, the obligation
of such Lender to make its Tranche B Term Loan pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amount
set forth on Exhibit A to this Agreement opposite its name thereon under the
heading "Tranche B Term Loan Commitment", as such amount may be modified from
time to time pursuant to the terms hereof.
"TRANCHE B TERM LOAN LENDER" means any Lender with a Tranche B Term
Loan Commitment.
"TRANCHE B TERM LOAN TERMINATION DATE" means March 31, 2004.
"TRANCHE B TERM NOTE" means a promissory note, in substantially the
form of Exhibit B-4 hereto, duly executed by the Borrower and payable to the
order of a Lender in the amount of its Tranche B Term Loan Commitment, including
any amendment, restatement, modification, renewal or replacement of such Tranche
B Term Note.
"TRANSACTION COSTS" means the fees, costs and expenses payable by the
Borrower in connection with the execution, delivery and performance of the Loan
Documents.
"TRANSACTION DOCUMENTS" means the Loan Documents, and the documents
executed in connection with the Senior Subordinated Notes, Subordinated Notes
and the Senior Notes.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the present value of all vested nonforfeitable
benefits under all Single Employer Plans
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exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans, and (ii) in the case of Multiemployer Plans, the withdrawal liability
that would be incurred by the Controlled Group if all members of the Controlled
Group completely withdrew from all Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WORKING CAPITAL" means, as at any date of determination, the excess,
if any, of (i) the Borrower's consolidated current assets, except cash and Cash
Equivalents, over (ii) the Borrower's consolidated current liabilities, except
current maturities of long-term debt and Revolving Credit Obligations as of such
date and all accrued interest as of such date.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data, including
dates, on and after January 1, 2000, as it affects the business, operations, and
financial condition of the Borrower and its Subsidiaries and of the Borrower's
and its Subsidiaries' material customers, suppliers and vendors.
"YEAR 2000 PROGRAM" is defined in Section 5.19.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with Agreement Accounting Principles.
1.2 References. The existence throughout the Agreement of references to
the Borrower's Subsidiaries is for a matter of convenience only. Any references
to Subsidiaries of the Borrower set forth herein shall not in any way be
construed as consent by the Agent or any Lender to the establishment,
maintenance or acquisition of any Subsidiary, except as may otherwise be
permitted hereunder.
1.3 Supplemental Disclosure. At any time at the reasonable request of
the Agent and at such additional times as the Borrower determines, the Borrower
shall supplement each schedule or representation herein or in the other Loan
Documents with respect to any matter hereafter arising
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which, if existing or occurring at the date of this Agreement, would have been
required to be set forth or described in such schedule or as an exception to
such representation or which is necessary to correct any information in such
schedule or representation which has been rendered inaccurate thereby. Unless
any such supplement to such schedule or representation discloses the existence
or occurrence of events, facts or circumstances which are not prohibited by the
terms of this Agreement or any other Loan Documents, such supplement to such
schedule or representation shall not be deemed an amendment thereof unless
expressly consented to in writing by the Agent and the Required Lenders, and no
such amendments, except as the same may be consented to in a writing which
expressly includes a waiver, shall be or be deemed a waiver by the Agent or any
Lender of any Default disclosed therein. Any items disclosed in any such
supplemental disclosures shall be included in the calculation of any limits,
baskets or similar restrictions contained in this Agreement or any of the other
Loan Documents.
1.4 Amendment and Restatement of Original Credit Agreement. The parties
to this Agreement agree that, upon (i) the execution and delivery by each of the
parties hereto of this Agreement and (ii) satisfaction of the conditions set
forth in Sections 5.1 and 5.2, the terms and provisions of the Original Credit
Agreement shall be and hereby are amended, superseded and restated in their
entirety by the terms and provisions of this Agreement. This Agreement is not
intended to and shall not constitute a novation. All Loans made and Secured
Obligations incurred under the Original Credit Agreement which are outstanding
on the Closing Date shall continue as Loans and Secured Obligations under (and
shall be governed by the terms of) this Agreement. Without limiting the
foregoing, (a) all Letters of Credit issued (or deemed issued) for the account
of the Borrowers under the Original Credit Agreement which remain outstanding on
the Closing Date shall continue as Letters of Credit under (and shall be
governed by the terms of) this Agreement and (b) all Secured Obligations under
Hedging Agreements with any Lender or any Affiliate of any Lender which are
outstanding on the Closing Date shall continue as Secured Obligations under this
Agreement and the other Loan Documents.
ARTICLE II: THE TERM LOANS AND REVOLVING LOAN FACILITIES
2.1. Term Loans. Prior to the Closing Date, term loans were previously
made to the Borrower under the Original Credit Agreement in the original
aggregate principal amount of One-Hundred and Seventy Million and no/100 dollars
($170,000,000), the principal balance of which has been reduced to One-Hundred
and Twenty-Eight Million and no/100 dollars ($128,000,000)as of the date of this
Agreement (such outstanding loans being hereinafter referred to as the "ORIGINAL
TERM LOANS"). Subject to the terms and conditions set forth in this Agreement,
the Borrower and each Lenders agree that on the Closing Date, the Original Term
Loans shall be reevidenced by this Agreement, the terms of the Original Term
Loans shall be restated in their entirety and shall be evidenced by this
Agreement. The Original Term Loans as reevidenced and restated by this Agreement
are referred to herein collectively as the "TERM LOANS."
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(A) Amount of Tranche A Term Loans. Subject to the terms and conditions
set forth in this Agreement, Forty Million and no/100 dollars ($40,000,000) of
the Original Term Loans shall be reevidenced hereby as term loans held by each
Tranche A Term Loan Lender in an amount equal to such Lender's Tranche A Term
Loan Commitment (each individually, a "TRANCHE A TERM LOAN" and, collectively,
the "TRANCHE A TERM LOANS").
(B) Amount of Tranche B Term Loans. Subject to the terms and conditions
set forth in this Agreement, Eighty-Eight Million and no/100 dollars
($88,000,000) of the Original Term Loans shall be reevidenced hereby as term
loans held by each Tranche B Term Loan Lender in an amount equal to such
Lender's Tranche B Term Loan Commitment (each individually, a "TRANCHE B TERM
LOAN" and, collectively, the "TRANCHE B TERM LOANS").
(C) Term Loans Initially Floating Rate Loans. The Term Loans shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurodollar Rate Loans in the manner provided in
Section 2.10 and subject to the other conditions and limitations therein set
forth and set forth in this Article II.
(D) Repayment of the Tranche A Term Loans. The Tranche A Term Loans
shall be repaid in seventeen (17) consecutive equal quarterly installments of
$2,222,222, payable on the last Business Day of each fiscal quarter of the
Borrower, commencing September 25, 1999 and continuing thereafter until
September 27, 2003, with a final installment of $2,222,226 payable on the
Tranche A Term Loan Termination Date, and the Tranche A Term Loans shall be
permanently reduced by the amount of each installment on the date payment
thereof is made hereunder. Notwithstanding the foregoing, the final installment
shall be in the amount of the then outstanding principal balance of the Tranche
A Term Loans. In addition, the then outstanding principal balance of the Tranche
A Term Loans, if any, shall be due and payable on the Tranche A Term Loan
Termination Date. No installment of any Tranche A Term Loan shall be reborrowed
once repaid.
(E) Repayment of the Tranche B Term Loans. The Tranche B Term Loans
shall be repaid in eighteen (18) consecutive equal quarterly installments of
$220,000, payable on the last Business Day of each fiscal quarter of the
Borrower, commencing September 25, 1999 and continuing thereafter until December
27, 2003, with a final installment of $84,040,000 payable on the Tranche B Term
Loan Termination Date, and the Tranche B Term Loans shall be permanently reduced
by the amount of each installment on the date payment thereof is made hereunder.
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Tranche B Term Loans. In addition,
the then outstanding principal balance of the Tranche B Term Loans, if any,
shall be due and payable on the Tranche B Termination Date. No installment of
any Tranche B Term Loan shall be reborrowed once repaid.
(F) Additional Payments on the Term Loans. In addition to the scheduled
payments on the Term Loans, the Borrower (a) may make the voluntary prepayments
described in Section 2.5(A) for credit against the scheduled payments on the
Term Loans pursuant to Section 2.5(A) and (b) shall
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make the mandatory prepayments prescribed in Section 2.5(B) for credit against
the scheduled payments on the Term Loans pursuant to Section 2.5(B).
2.2 Revolving Loans. Prior to the Closing Date, revolving loans were
previously made to the Borrower under the Original Credit Agreement which remain
outstanding as of the date of this Agreement (such outstanding revolving loans
being hereinafter referred to as the "ORIGINAL REVOLVING LOANS"). Subject to the
terms and conditions set forth in this Agreement, the Borrower and each of the
Lenders agree that on the Closing Date, the Original Revolving Loans shall be
reevidenced by this Agreement, the terms of the Original Revolving Loans shall
be restated in their entirety and shall be evidenced by this Agreement. Upon the
satisfaction of the conditions precedent set forth in Sections 5.1 and 5.2, from
and including the date of this Agreement and prior to the Revolving Loan
Termination Date, each Lender which has a Revolving Loan Commitment severally
and not jointly agrees, on the terms and conditions set forth in this Agreement,
to make revolving loans to the Borrower from time to time, in Dollars, in an
amount not to exceed such Lender's Revolving Loan Pro Rata Share of Revolving
Credit Availability at such time (the Original Revolving Loans as reevidenced
and restated by this Agreement and any such loans made pursuant to this Section
2.2, being referred to individually as a "REVOLVING LOAN" and, collectively as
the "REVOLVING LOANS"); provided, however, at no time shall the Revolving Credit
Obligations exceed the Maximum Revolving Credit Amount. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow Revolving Loans at
any time prior to the Revolving Loan Termination Date. The Original Revolving
Loans and any Revolving Loans made on the Closing Date shall initially be
Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Rate Loans in the manner provided in Section 2.10 and
subject to the other conditions and limitations therein set forth and set forth
in this Article II. On the Revolving Loan Termination Date, the Borrower shall
repay in full the outstanding principal balance of the Revolving Loans. Each
Advance under this Section 2.2 shall consist of Revolving Loans made by each
Lender which has a Revolving Loan Commitment ratably in proportion to such
Lender's respective Revolving Loan Pro Rata Share.
2.3 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Section 5.1 and 5.2, from
and including the date of this Agreement and prior to the Revolving Loan
Termination Date, the Swing Line Bank agrees, on the terms and conditions set
forth in this Agreement, to make swing line loans to the Borrower from time to
time, in Dollars, in an amount not to exceed the Swing Line Commitment (each,
individually, a "SWING LINE LOAN" and collectively, the "SWING LINE LOANS");
provided, however, at no time shall the Revolving Credit Obligations exceed the
Maximum Revolving Credit Amount; and provided, further, that at no time shall
the sum of (a) the outstanding amount of the Swing Line Loans, plus (b) the
outstanding amount of Revolving Loans made by the Swing Line Bank pursuant to
Section 2.2 (after giving effect to any concurrent repayment of Loans), exceed
the Swing Line Bank's Revolving Loan Commitment at such time. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Swing Line
Loans at any time prior to the Revolving Loan Termination Date.
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(b) Borrowing Notice. The Borrower shall deliver to the Agent and the
Swing Line Bank a Borrowing Notice, signed by it, not later than 10:00 a.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which shall be a Business Day), and (ii) the
aggregate amount of the requested Swing Line Loan. The Swing Line Loans shall at
all times be Floating Rate Loans, which shall be an amount not less than
$100,000. The Agent shall promptly notify each Lender of such request.
(c) Making of Swing Line Loans. Promptly after receipt of the Borrowing
Notice under Section 2.3(b) in respect of Swing Line Loans, the Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission,
of the requested Swing Line Loan. Not later than 2:00 p.m. (Chicago time) on the
applicable Borrowing Date, the Swing Line Bank shall make available its Swing
Line Loan, in funds immediately available in Chicago to the Agent at its address
specified pursuant to Article XIV. The Agent will promptly make the funds so
received from the Swing Line Bank available to the Borrower at the Agent's
aforesaid address.
(d) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Note, and each Swing Line Loan shall be paid in full
by the Borrower on or before the fifth Business Day after the Borrowing Date for
such Swing Line Loan. The Borrower may at any time pay, without penalty or
premium, all outstanding Swing Line Loans or, in a minimum amount of $100,000,
any portion of the outstanding Swing Line Loans, upon notice to the Agent and
the Swing Line Bank. In addition, the Agent (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan, or (ii) shall on the
fifth Business Day after the Borrowing Date of any Swing Line Loan, require each
Lender (including the Swing Line Bank) which has a Revolving Loan Commitment to
make a Revolving Loan in the amount of such Lender's Revolving Loan Pro Rata
Share of such Swing Line Loan, for the purpose of repaying such Swing Line Loan.
Not later than 2:00 p.m. (Chicago time) on the date of any notice received
pursuant to this Section 2.3(d), each Lender shall make available its required
Revolving Loan or Revolving Loans, in funds immediately available in Chicago to
the Agent at its address specified pursuant to Article XIV. Revolving Loans made
pursuant to this Section 2.3(d) shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into Eurodollar
Rate Loans in the manner provided in Section 2.10 and subject to the other
conditions and limitations therein set forth and set forth in this Article II.
Unless a Lender shall have notified the Swing Line Bank, prior to its making any
Swing Line Loan, that any applicable condition precedent set forth in Sections
5.1 and 5.2 had not then been satisfied, such Lender's obligation to make
Revolving Loans pursuant to this Section 2.3(d) to repay Swing Line Loans shall
be unconditional, continuing, irrevocable and absolute and shall not be affected
by any circumstances, including, without limitation, (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Agent, the Swing Line Bank or any other Person, (B) the occurrence
of continuance of a Default or Unmatured Default, (C) any adverse change in the
condition (financial or otherwise) of the Borrower, or (D) any other
circumstances, happening or event whatsoever. In the event that any Lender fails
to make payment to the Agent of any amount due under this Section 2.3(d), the
Agent shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender
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hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Agent of any amount due under
this Section 2.3(d), such Lender shall be deemed, at the option of the Agent, to
have unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Revolving Loan Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.4 Rate Options for all Advances. The Advances may be Floating Rate
Advances or Eurodollar Rate Advances, or a combination thereof, selected by the
Borrower in accordance with Section 2.10. The Borrower may select, in accordance
with Section 2.10, Rate Options and Interest Periods applicable to portions of
the Revolving Loans and the Term Loans; provided that there shall be no more
than six (6) Interest Periods in effect with respect to all of the Loans at any
time. The Swing Line Loans shall at all times be Floating Rate Loans.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrower may from time to time repay or
prepay, without penalty or premium except the prepayment premium provided in the
last sentence of this Section 2.5(A), all or any part of outstanding Floating
Rate Advances; provided, that the Borrower may not so prepay Floating Rate
Advances consisting of Term Loans unless it shall have provided at least one
Business Day's written notice to the Agent of such prepayment. Eurodollar Rate
Advances may be voluntarily repaid or prepaid prior to the last day of the
applicable Interest Period, subject to the indemnification provisions contained
in Section 4.4 and subject to the last sentence of this Section 2.5(A),
provided, that the Borrower may not so prepay Eurodollar Rate Advances unless it
shall have provided at least three Business Days' written notice to the Agent of
such prepayment. Unless the aggregate outstanding principal balance of the Term
Loans is to be prepaid in full, voluntary prepayments of the Tranche A Term
Loans or Tranche B Term Loans shall be in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of that amount in each
case for such tranche. Optional prepayments of the Term Loans shall be applied
pro rata between the Tranche A Term Loans and the Tranche B Term Loans, and
shall be applied to each of the then remaining installments payable thereunder,
on a ratable basis based upon the respective amounts of such installments.
Notwithstanding anything herein to the contrary, any optional prepayment of
Tranche B Term Loans made prior the date that is one year after the date of this
Agreement shall be accompanied by the payment of a prepayment premium equal to
one percent (1.0%) of the amount so prepaid to be paid to the Tranche B Term
Loan Lenders in accordance with their Tranche B Pro Rata Shares.
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(B) Mandatory Prepayments.
(i) Mandatory Prepayments of Term Loans.
(a) Upon the consummation of any Asset Sale by the Borrower or
any Subsidiary of the Borrower other than those Asset Sales permitted
pursuant to Section 7.3(B)(i), (ii), (iii), (iv) and (v), except to the
extent that the Net Cash Proceeds of such Asset Sale, when combined
with the Net Cash Proceeds of all such Asset Sales during the
immediately preceding twelve-month period, do not exceed $5,000,000,
and except as provided in the second and third sentences of this
Section 2.5(B)(i)(a), within fifteen (15) Business Days after the
Borrower's or any of its Subsidiaries' (i) receipt of any Net Cash
Proceeds from any such Asset Sale, or (ii) conversion to cash or Cash
Equivalents of non-cash proceeds (whether principal or interest and
including securities, release of escrow arrangements or lease payments)
received from any Asset Sale, the Borrower shall make a mandatory
prepayment of the Obligations in an amount equal to one hundred percent
(100%) of such Net Cash Proceeds or such proceeds converted from
non-cash to cash or Cash Equivalents. Net Cash Proceeds of Asset Sales
with respect to which the Borrower shall have given the Agent written
notice of its intention to replace the assets within six months, in the
case of a sale of Equipment, or twelve months, in the case of a sale of
real property, following such Asset Sale shall not be subject to the
provisions of the first sentence of this Section 2.5(B)(i)(a) unless
and to the extent that such applicable period shall have expired
without such replacement having been made.
(b) Upon the consummation of any Financing by the Borrower or
any Subsidiary of the Borrower, except as provided in the second
sentence of this Section 2.5(B)(i)(b), within three (3) Business Days
after the Borrower's or any of its Subsidiaries' receipt of any Net
Cash Proceeds from such Financing, the Borrower shall make a mandatory
prepayment of the Obligations in an amount equal to one hundred percent
(100%) of such Net Cash Proceeds. Net Cash Proceeds of Financings
consisting of Permitted Refinancing Indebtedness or which are used,
after written notice by the Borrower to the Agent thereof, for any
Permitted Acquisition or any Restricted Payment permitted under Section
7.3(F) shall not be subject to the provisions of the first sentence of
this Section 2.5(B)(i)(b).
(c) Simultaneously with the delivery of the annual audited
financial statements required to be delivered pursuant to Section
7.1(A)(iii) for each Cash Flow Period, the Borrower shall calculate
Excess Cash Flow for such Cash Flow Period and shall make a mandatory
prepayment, payable not later than the earlier of ten (10) days after
such financial statements and calculation are delivered or one hundred
(100) days after the end of such Cash Flow Period, in an amount equal
to seventy-five percent (75.0%) of such Excess Cash Flow.
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(d) Nothing in this Section 2.5(B)(i) shall be construed to
constitute the Lenders' consent to any transaction referred to in
clauses (a) and (b) above which is not expressly permitted by the terms
of this Agreement.
(e) Each mandatory prepayment required by clauses (a), (b) and
(c) of this Section 2.5(B) shall be referred to herein as a "Designated
Prepayment." Designated Prepayments shall be allocated and applied to
the Obligations as follows:
(I) the amount of each Designated Prepayment shall be
applied pro rata between the Tranche A Term Loans, the Tranche
B Term Loans, and, in each case, applied to the remaining
installments in the inverse order of maturity; and
(II) following the payment in full of the Term Loans,
the amount of each Designated Prepayment shall be applied to
repay Revolving Loans (but shall reduce Revolving Loan
Commitments only at the option of the Required Revolving Loan
Lenders) and following the payment in full of the Revolving
Loans, the amount of each Designated Prepayment shall be
applied first to interest on the Reimbursement Obligations,
then to principal on the Reimbursement Obligations, then to
fees on account of Letters of Credit and then, to the extent
any L/C Obligations are contingent, deposited with the Agent
as cash collateral in respect of such L/C Obligations.
(f) So long as any Tranche A Term Loans are outstanding, any
Tranche B Term Loan Lender may decline any Designated Prepayment, in
which case the amount declined will be applied to the then remaining
installments of the Tranche A Term Loans in the inverse order of
maturity; provided, however, that this clause (f) shall not limit the
right of the Borrower to make voluntary prepayment pursuant to Section
2.5(A)..
(g) On the date any Designated Prepayment is received by the
Agent, such prepayment shall be applied first to Floating Rate Loans
and to any Eurodollar Rate Loans maturing on such date and then to
subsequently maturing Eurodollar Rate Loans in order of maturity;
provided, the Borrower shall be required to pay all amounts payable
under Section 4.4 in connection with the prepayment of any Eurodollar
Rate Loans.
(ii) Mandatory Prepayments of Revolving Loans. In addition to
prepayments under Section 2.5(B)(i)(e)(II), if at any time and for any reason
the Revolving Credit Obligations are greater than the Maximum Revolving Credit
Amount, the Borrower shall immediately make a mandatory prepayment of the
Obligations in an amount equal to such excess.
(iii) Subject to the preceding provisions of this Section 2.5(B), all
of the mandatory prepayments made under this Section 2.5(B) shall be applied
first to Floating Rate Loans and to any
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Eurodollar Rate Loans maturing on such date and then to subsequently maturing
Eurodollar Rate Loans in order of maturity; provided, the Borrower shall be
required to pay all amounts payable under Section 4.4 in connection with the
prepayment of any Eurodollar Rate Loans.
2.6 Reduction of Commitments. The Borrower may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders with Revolving Loan Commitments, in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount (unless
the Aggregate Revolving Loan Commitment is reduced in whole), upon at least five
Business Days' written notice to the Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder.
2.7 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender with a Revolving Loan Commitment shall make
available its Revolving Loan or Revolving Loans, in funds immediately available
in Chicago to the Agent at its address specified pursuant to Article XIV. The
Agent will promptly make the funds so received from the Lenders available to the
Borrower at the Agent's aforesaid address.
2.8 Method of Selecting Types and Interest Periods for Advances. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Agent irrevocable notice in substantially the form
of Exhibit C hereto (a "BORROWING NOTICE") not later than 10:00 a.m. (Chicago
time) (a) on the Borrowing Date of each Floating Rate Advance and (b) three
Business Days before the Borrowing Date for each Eurodollar Rate Advance,
specifying: (i) the Borrowing Date (which shall be a Business Day) of such
Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurodollar Rate Advance, the Interest
Period applicable thereto. The Borrower shall select Interest Periods so that,
to the best of the Borrower's knowledge, it will not be necessary to prepay all
or any portion of any Eurodollar Rate Advance prior to the last day of the
applicable Interest Period in order to make mandatory prepayments as required
pursuant to the terms hereof. Each Floating Rate Advance and all Obligations
other than Loans shall bear interest from and including the date of the making
of such Advance to (but not including) the date of repayment thereof at the
Floating Rate, changing when and as such Floating Rate changes. Changes in the
rate of interest on that portion of any Advance maintained as a Floating Rate
Loan will take effect simultaneously with each change in the Alternate Base Rate
or each change in the Applicable Floating Rate Margin. Each Eurodollar Rate
Advance shall bear interest from and including the first day of the Interest
Period applicable thereto to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Eurodollar Rate
Advance, changing when and as the Applicable Eurodollar Margin changes.
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2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance
to repay Swing Line Loans pursuant to Section 2.3(d) or a Reimbursement
Obligation pursuant to Section 3.7) shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 if in excess thereof), provided, however, that
any Floating Rate Advance may be in the amount of the unused Aggregate Revolving
Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The Borrower may elect from time to time, subject
to the provisions of Section 2.4 and this Section 2.10, to convert all or any
part of a Loan of any Type into any other Type or Types of Loans; provided that
any conversion of any Eurodollar Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as
Eurodollar Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have given the
Agent notice in accordance with Section 2.10(D) requesting that, at the end of
such Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or Section
2.10(B), no Loan may be converted into or continued as a Eurodollar Rate Loan
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the Agent
irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of a
Floating Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar
Rate Loan not later than 10:00 a.m. (Chicago time) three Business Days prior to
the date of the requested conversion or continuation, specifying: (1) the
requested date (which shall be a Business Day) of such conversion or
continuation; (2) the amount and Type of the Loan to be converted or continued;
and (3) the amount of Eurodollar Rate Loan(s) into which such Loan is to be
converted or continued and the duration of the Interest Period applicable
thereto.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, at the direction of the Required Lenders, the interest rate(s)
applicable to the Obligations and the fees payable under Section 3.8 with
respect to Letters of Credit shall be increased by two percent (2.0%) per annum
above the Floating Rate or Eurodollar Rate, as applicable.
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<PAGE> 47
2.12 Collection Account Arrangements. All collections of Receivables
included in the Collateral and other proceeds of Collateral shall be deposited
in a Collection Account which is subject to a Collection Account Agreement or
pursuant to another similar arrangement for the collection of such amounts
established by the Borrower and Agent and shall be transferred in accordance
with the provisions of the respective Collection Account Agreements. On or prior
to the Closing Date, the Borrower shall have entered into and shall thereafter
maintain lock-box services agreements with banks which are parties to Collection
Account Agreements and to which lock-boxes account debtors shall directly remit
all payments on Receivables. Any of the foregoing collections received by the
Borrower and not so deposited, shall be deemed to have been received by the
Borrower as the Agent's trustee and, upon the Borrower's receipt thereof, the
Borrower shall immediately transfer all such amounts into a Collection Account
in their original form. Such deposits shall be remitted to the Agent, the
Borrower or as the Agent may direct, all in accordance with the provisions of
the Collection Account Agreements.
2.13 Method of Payment. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to Article XIV, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 2:00 p.m. (Chicago time)
on the date when due and shall be made ratably among the Lenders (unless such
amount is not to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds which the Agent
received at its address specified pursuant to Article XIV or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Borrower authorizes the Agent to charge the account of the Borrower maintained
with First Chicago for each payment of principal, interest and fees as it
becomes due hereunder.
2.14 Notes, Telephonic Notices. Each Lender is authorized to record the
principal amount of each of its Loans and each repayment with respect to its
Loans on the schedule attached to its respective Notes; provided, however, that
the failure to so record shall not affect the Borrower's obligations under any
such Note. The Borrower authorizes the Lenders and the Agent to extend Advances,
effect selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Agent or any Lender in good faith
believes to be acting on behalf of the Borrower. The Borrower agrees to deliver
promptly to the Agent a written confirmation, signed by an Authorized Officer,
if such confirmation is requested by the Agent or any Lender, of each telephonic
notice. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, (i) the telephonic notice shall
govern absent manifest error and (ii) the Agent or the Lender, as applicable,
shall promptly notify the Authorized Officer who provided such confirmation of
such difference.
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
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(A) Promise to Pay. The Borrower unconditionally promises to pay when
due the principal amount of each Loan and all other Obligations incurred by it,
and to pay all unpaid interest accrued thereon, in accordance with the terms of
this Agreement and the Notes.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, on any date on which the Floating Rate Loan is
prepaid, whether due to acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurodollar Rate Loan shall
be payable on the last day of its applicable Interest Period, on any date on
which the Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Rate Loan having an
Interest Period longer than three months shall also be payable on the last day
of each three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears (i)
on the last day of each calendar month, commencing on the first such day
following the incurrence of such Obligation, (ii) upon repayment thereof in full
or in part, and (iii) if not theretofore paid in full, at the time such other
Obligation becomes due and payable (whether by acceleration or otherwise).
(C) Commitment Fees. (i) The Borrower shall pay to the Agent, for the
account of the Lenders with Revolving Loan Commitments in accordance with their
Revolving Loan Pro Rata Shares, from and after the Closing Date until the date
on which the Aggregate Revolving Loan Commitment shall be terminated in whole, a
commitment fee accruing at the rate of the then Applicable Commitment Fee
Percentage, on the amount by which (A) the Aggregate Revolving Loan Commitment
in effect from time to time exceeds (B) the Revolving Credit Obligations in
effect from time to time. All such commitment fees payable under this clause (C)
shall be payable quarterly in arrears on the last day of each fiscal quarter of
the Borrower occurring after the Closing Date (with the first such payment being
calculated for the period from the Closing Date and ending on June 26, 1999),
and, in addition, on the date on which the Aggregate Revolving Loan Commitment
shall be terminated in whole. In addition, on the Closing Date, the Borrower
shall pay to the Agent for the ratable account of the lenders parties to the
Original Credit Agreement, the accrued and unpaid commitment fees under the
Original Credit Agreement through to the Closing Date.
(ii) The Borrower agrees to pay to the Agent and the Lead Arranger,
solely for their account (to be allocated among the Agent and the Lead Arranger
in their discretion) the fees set forth in the letter agreement among the Agent,
the Lead Arranger and the Borrower dated April 2, 1999 and executed by the
Borrower on April 5, 1999, payable at the times and in the amounts set forth
therein.
(D) Interest and Fee Basis; Applicable Eurodollar Margin; Applicable
Floating Rate Margin and Applicable Commitment Fee Percentage.
(i) Interest and fees shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest shall be payable for the day an Obligation
is incurred but not for the day of any payment on the amount paid if payment is
received prior to 2:00 p.m. (Chicago time) at the place of payment.
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<PAGE> 49
If any payment of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(ii) The Applicable Eurodollar Margin, Applicable Floating Rate Margin
and Applicable Commitment Fee Percentage shall be determined from time to time
by reference to the table set forth below, on the basis of the then applicable
Leverage Ratio as described in this Section 2.15(D)(ii):
<TABLE>
<CAPTION>
LEVEL LEVERAGE APPLICABLE MARGINS APPLICABLE APPLICABLE
RATIO FOR REVOLVING MARGINS FOR COMMITMENT
LOANS AND TRANCHE TRANCHE B TERM FEE
A TERM LOANS LOANS PERCENTAGE
- ----------------------------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE APPLICABLE
FLOATING EURODOLLAR FLOATING EURODOLLAR
RATE MARGIN RATE MARGIN
MARGIN MARGIN
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
LEVEL 1 >= 5.00 1.50% 2.75% 2.00% 3.25% 0.50%
- ----------------------------------------------------------------------------------------------------------------------
LEVEL 2 >=4.50 and 1.25% 2.50% 2.00% 3.25% 0.45%
< 5.00
- ----------------------------------------------------------------------------------------------------------------------
LEVEL 3 >=4.00 and 1.00% 2.25% 2.00% 3.25% 0.40%
< 4.50
- ----------------------------------------------------------------------------------------------------------------------
LEVEL 4 >=3.50 and 0.75% 2.00% 2.00% 3.25% 0.35%
< 4.00
- ----------------------------------------------------------------------------------------------------------------------
LEVEL 5 >=3.00 and 0.25% 1.75% 2.00% 3.25% 0.30%
< 3.50
- ----------------------------------------------------------------------------------------------------------------------
LEVEL 6 < 3.00 0% 1.50% 2.00% 3.25% 0.25%
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE> 50
Except as provided in the last sentence of this Section 2.15(D)(ii), for
purposes of this Section 2.15(D)(ii), the Leverage Ratio shall be determined as
of the last day of each fiscal quarter based upon (a) for Total Debt, Total Debt
as of the last day of each such fiscal quarter; and (b) for EBITDA, the actual
amount for the four-quarter period ending on such day, calculated, with respect
to Permitted Acquisitions, on a pro forma basis using historical audited and
reviewed unaudited financial statements obtained from the seller, broken down by
fiscal quarter in the Borrower's reasonable judgment. Upon receipt of the
financial statements delivered pursuant to Section 7.1(A)(ii), the Applicable
Eurodollar Margin, Applicable Floating Rate Margin and Applicable Commitment Fee
Percentage shall be adjusted, such adjustment being effective five (5) Business
Days following the Agent's receipt of such financial statements and the
compliance certificate required to be delivered in connection therewith pursuant
to Section 7.1(A)(iv); provided, that if the Borrower shall not have timely
delivered its financial statements in accordance with Section 7.1(A)(ii), then
commencing on the date upon which such financial statements should have been
delivered and continuing until such financial statements are actually delivered,
it shall be assumed for purposes of determining the Applicable Eurodollar Margin
and Applicable Commitment Fee Percentage that the Leverage Ratio was greater
than 5.0 to 1.0. The initial Applicable Eurodollar Margin, Applicable Floating
Rate Margin and Applicable Commitment Fee Percentage shall be at Level I until
January 1, 2000, at which time the Applicable Eurodollar Margin, Applicable
Floating Rate Margin and Applicable Commitment Fee Percentage shall be adjusted
based upon the Leverage Ratio for the fiscal quarter ended September 25, 1999
based upon the financial statements and compliance certificate delivered for
such fiscal quarter and thereafter shall be adjusted as required in accordance
with this Section 2.15(D)(ii).
(E) Taxes.
(i) Any and all payments by the Borrower hereunder shall be
made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any liabilities with respect thereto including those arising after the
date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by
a Governmental Authority but excluding, in the case of each Lender and
the Agent, such taxes (including income taxes, franchise taxes and
branch profit taxes) as are imposed on or measured by such Lender's or
Agent's, as the case may be, net income by the United States of America
or any Governmental Authority of the jurisdiction under the laws of
which such Lender or Agent, as the case may be, is organized or
maintains a Lending Installation (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Agent or a Lender determines to be applicable to this Agreement, the
other Loan Documents, the Revolving Loan Commitments, the Loans or the
Letters of Credit being hereinafter referred to as "TAXES"). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under the other Loan
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<PAGE> 51
Documents to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 2.15(E)) such Lender or the Agent (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 taxation authority or other authority in accordance
with applicable law. If a withholding tax of the United States of
America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by
the Borrower made to the Lending Installation or any other office that
a Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender
shall use reasonable efforts to make, fund and maintain its Loans
through another Lending Installation of such Lender in another
jurisdiction so as to reduce the Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender,
otherwise adversely affect such Loans, or obligations under the
Revolving Loan Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.15(E)) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30)
days after the date such Lender or the Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or the Agent under this Section 2.15(E) submitted
to the Borrower and the Agent (if a Lender is so submitting) by such
Lender or the Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties
hereto. With respect to such deduction or withholding for or on account
of any Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the Borrower shall promptly (and
in any event not later than thirty (30) days after receipt) furnish to
each Lender and the Agent such certificates, receipts and other
documents as may be required (in the judgment of such Lender or the
Agent) to establish any tax credit to which such Lender or the Agent
may be entitled.
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(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower shall furnish to the
Agent the original or a certified copy of a receipt evidencing payment
thereof.
(v) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.15(E) shall survive the payment in
full of principal and interest hereunder, the termination of the
Letters of Credit and the termination of this Agreement.
(vi) Without limiting the obligations of the Borrower under
this Section 2.15(E), each Lender that is not created or organized
under the laws of the United States of America or a political
subdivision thereof shall deliver to the Borrower and the Agent on or
before the Closing Date, or, if later, the date on which such Lender
becomes a Lender pursuant to Section 13.3, a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender, in a form satisfactory to the Borrower and the Agent, to the
effect that such Lender is capable under the provisions of an
applicable tax treaty concluded by the United States of America (in
which case the certificate shall be accompanied by two executed copies
of Form 1001 of the IRS) or under Section 1442 of the Code (in which
case the certificate shall be accompanied by two copies of Form 4224 of
the IRS) or, if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, two completed and signed copies of
IRS Form W-8 or W-9 or successor applicable form, of receiving payments
of interest hereunder without deduction or withholding of United States
federal income tax. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender substantially in a form satisfactory to the Borrower and the
Agent, before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to the
Borrower and the Agent pursuant to this Section 2.15(E)(vi). Further,
each Lender which delivers a certificate accompanied by Form 1001 of
the IRS covenants and agrees to deliver to the Borrower and the Agent
within fifteen (15) days prior to January 1, 2002, and every third
(3rd) anniversary of such date thereafter on which this Agreement is
still in effect, another certificate and two accurate and complete
original signed copies of Form 1001 (or any successor form or forms
required under the Code or the applicable regulations promulgated
thereunder), each Lender that delivers a Form W-8 or W-9 as prescribed
above, and each Lender that delivers a certificate accompanied by Form
4224 of the IRS covenants and agrees to deliver to the Borrower and the
Agent within fifteen (15) days prior to the beginning of each
subsequent taxable year of such Lender during which this Agreement is
still in effect, another such Form W-8 or W-9 or another certificate
and two accurate and complete original signed copies of IRS Form 4224
(or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder). Each such certificate
shall certify as to one of the following:
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<PAGE> 53
(a) that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of
United States of America federal income tax;
(b) that such Lender is not capable of receiving
payments of interest hereunder without deduction or
withholding of United States of America federal income tax as
specified therein but is capable of recovering the full amount
of any such deduction or withholding from a source other than
the Borrower and will not seek any such recovery from the
Borrower; or
(c) that, as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of United States of
America federal income tax as specified therein and that it is
not capable of recovering the full amount of the same from a
source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or
the Agent to establish any exemption from or reduction of any Taxes or
Other Taxes required to be deducted or withheld and which may be
obtained without undue expense to such Lender.
(F) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of the Borrower to such Lender owing to such Lender from time to
time, including the amount of principal and interest payable and paid to such
Lender from time to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Agent pursuant to
Section 13.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Advance made hereunder, the type of Loan comprising such
Advance and any Interest Period applicable thereto, (ii) the effective date and
amount of each assignment and acceptance delivered to and accepted by it and the
parties thereto pursuant to Section 13.3, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder or under the Notes, (iv) the amount of any sum received by the
Agent from the Borrower hereunder and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(H) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrower objects to
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<PAGE> 54
information contained in the Register and each Loan Account within thirty (30)
days of the Borrower's receipt of such information.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Agent will notify each Lender with a Revolving Loan Commitment of the
contents of each Aggregate Revolving Loan Commitment reduction notice, Borrowing
Notice, Continuation/Conversion Notice, and repayment notice received by it
hereunder. The Agent will notify each Lender of the interest rate applicable to
each Eurodollar Rate Loan promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or
facsimile notice to the Agent and the Borrower, designate a Lending Installation
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the
Tranche B Termination Date. Notwithstanding the termination of this Agreement on
the Tranche B Termination Date, until all of the Secured Obligations (other than
contingent indemnity obligations) shall have been fully and indefeasibly paid
and satisfied, all financing arrangements among the Borrower and the Lenders
shall have been terminated and all of the Letters of Credit shall have expired,
been canceled or terminated, all of the rights and remedies under this Agreement
and the other Loan Documents shall survive and the Agent shall be entitled to
retain its security interest in and to all existing and future Collateral for
the benefit of itself and the Holders of Secured Obligations.
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2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Revolving Loan Pro Rata Share of any
Advance requested by the Borrower, or to fund a Revolving Loan in order to repay
Swing Line Loans pursuant to Section 2.3(d), which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured,
(ii) requested compensation from the Borrower under Sections 2.15(E), 4.1 or 4.2
to recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, (iii) delivered a
notice pursuant to Section 4.3 claiming that such Lender is unable to extend
Eurodollar Rate Loans to the Borrower for reasons not generally applicable to
the other Lenders or (iv) has invoked Section 10.2, then, in any such case, the
Borrower or the Agent may make written demand on such Affected Lender (with a
copy to the Agent in the case of a demand by the Borrower and a copy to the
Borrower in the case of a demand by the Agent) for the Affected Lender to
assign, and such Affected Lender shall use its reasonable best efforts to assign
pursuant to one or more duly executed assignments and acceptances in
substantially the form of Exhibit E five (5) Business Days after the date of
such demand, to one or more financial institutions that comply with the
provisions of Section 13.3(A) which the Borrower or the Agent, as the case may
be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all of such
Affected Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Revolving Loan Commitment, all
Loans owing to it, all of its participation interests in existing Letters of
Credit, and its obligation to participate in additional Letters of Credit
hereunder) in accordance with Section 13.3. The Agent agrees, upon the
occurrence of such events with respect to an Affected Lender and upon the
written request of the Borrower, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Agent is authorized to execute one or more of such assignment
agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
Further, with respect to such assignment the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation, the
aggregate outstanding principal amount of the Loans owed to such Lender,
together with accrued interest thereon through the date of such assignment,
amounts payable under Sections 2.15(E), 4.1, and 4.2 with respect to such
Affected Lender and compensation payable under Section 2.15(C) in the event of
any replacement of any Affected Lender under clause (ii) or clause (iii) of this
Section 2.20; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 10.7, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 11.8. Upon the replacement of any
Affected Lender pursuant to this Section 2.20, the provisions of Section 9.2
shall continue to apply with respect to borrowings which are then outstanding
with respect to which the Affected Lender failed to fund its Revolving Loan Pro
Rata Share and which failure has not been cured.
ARTICLE III: THE LETTER OF CREDIT FACILITY
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3.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of
the Borrower herein set forth, each Issuing Bank hereby agrees to issue for the
account of the Borrower through such Issuing Bank's branches as it and the
Borrower may jointly agree, one or more Letters of Credit in accordance with
this Article III, from time to time during the period, commencing on the date
hereof and ending on the fifth Business Day prior to the Revolving Loan
Termination Date.
3.2 Transitional Provision. Schedule 3.2 contains a schedule of certain
letters of credit issued for the account of the Borrower under the Original
Credit Agreement. Subject to the satisfaction of the conditions contained in
Sections 5.1 and 5.2, from and after the Closing Date such letters of credit
shall be deemed to be Letters of Credit issued pursuant to this Article III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation to and
no Issuing Bank shall:
(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time would
exceed the Maximum Revolving Credit Amount at such time, or (b) the
aggregate outstanding amount of the L/C Obligations would exceed
$10,000,000; or
(ii) issue any Letter of Credit which has an expiration date
later than the date which is the earlier of: (a) one (1) year after the
date of issuance thereof; provided any Letter of Credit with a one-year
tenor may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in
the following clause (b)) or (b) five (5) Business Days immediately
preceding the Revolving Loan Termination Date.
3.4 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing Bank
to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing Bank at such times and in such manner as such Issuing Bank may
reasonably prescribe, a request for issuance of such Letter of Credit
in substantially the form of Exhibit D hereto, duly executed
applications for such Letter of Credit, and such other customary
documents, instructions and agreements as may be required pursuant to
the terms thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C DOCUMENTS"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
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(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain the applicable Issuing Bank from issuing
such Letter of Credit and no law, rule or regulation applicable to such
Issuing Bank and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over such
Issuing Bank shall prohibit or request that such Issuing Bank refrain
from the issuance of Letters of Credit generally or the issuance of
that Letter of Credit.
To the extent that any provision of any L/C Document cannot reasonably be
construed to be consistent with this Agreement, requires greater collateral
security or imposes additional obligations not reasonably related to customary
letter of credit arrangements, such provision shall be invalid and this
Agreement shall control.
3.5 Procedure for Issuance of Letters of Credit. (a) Subject to the
terms and conditions of this Article III and provided that the applicable
conditions set forth in Sections 5.1 and 5.2 hereof have been satisfied, the
applicable Issuing Bank shall, on the requested date, issue a Letter of Credit
on behalf of the Borrower in accordance with such Issuing Bank's usual and
customary business practices and, in this connection, such Issuing Bank may
assume that the applicable conditions set forth in Section 5.2 hereof have been
satisfied unless it shall have received notice to the contrary from the Agent or
a Lender or has knowledge that the applicable conditions have not been met.
(b) The applicable Issuing Bank shall give the Agent written or telex
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Letter of Credit, provided, however, that the failure to provide
such notice shall not result in any liability on the part of such Issuing Bank.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this Section 3.5 are met as though a new Letter of Credit
was being requested and issued.
3.6 Letter of Credit Participation. Unless a Lender shall have notified
the Issuing Bank prior to the issuance of a Letter of Credit that any applicable
condition precedent set forth in Sections 5.1 and 5.2 had not been satisfied,
(a) upon the Closing Date with respect to each Letter of Credit outstanding
under the Original Credit Agreement and (b) immediately upon the issuance of
each other Letter of Credit hereunder, each Lender with a Revolving Loan
Commitment shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
Issuing Bank thereunder (collectively, an "L/C INTEREST" in an amount equal to
the amount available for drawing under such Letter of Credit multiplied by such
Lender's Revolving Loan Pro Rata Share. Each Issuing Bank will notify each
Lender promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit. On or before the Business Day on which an Issuing Bank
makes payment of each such L/C Draft or, in the case of any other draw on a
Letter of Credit, on demand by the Agent, each Lender
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shall make payment to the Agent, for the account of the applicable Issuing Bank,
in immediately available funds in an amount equal to such Lender's Revolving
Loan Pro Rata Share of the amount of such payment or draw. The obligation of
each Lender with a Revolving Loan Commitment to reimburse the Issuing Banks
under this Section 3.6 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the Agent of any
amount due under this Section 3.6, the Agent shall be entitled to receive,
retain and apply against such obligation the principal and interest otherwise
payable to such Lender hereunder until the Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its obligation
to reimburse the applicable Issuing Bank for such amount in accordance with this
Section 3.6.
3.7 Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Agent, for the account of
the Lenders, the amount of each advance which may be drawn under or pursuant to
a Letter of Credit or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Agent for an advance made under a Letter of Credit or
L/C Draft being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with
respect to such Letter of Credit or L/C Draft). If the Borrower at any time
fails to repay a Reimbursement Obligation pursuant to this Section 3.7, the
Borrower shall be deemed to have elected to borrow Revolving Loans from the
Lenders with Revolving Loan Commitments, as of the date of the advance giving
rise to the Reimbursement Obligation, equal in amount to the amount of the
unpaid Reimbursement Obligation. Such Revolving Loans shall be made as of the
date of the payment giving rise to such Reimbursement Obligation, automatically,
without notice and without any requirement to satisfy the conditions precedent
otherwise applicable to an Advance of Revolving Loans. Such Revolving Loans
shall constitute a Floating Rate Advance, the proceeds of which Advance shall be
used to repay such Reimbursement Obligation. If, for any reason, the Borrower
fails to repay a Reimbursement Obligation on the day such Reimbursement
Obligation arises and, for any reason, the Lenders are unable to make or have no
obligation to make Revolving Loans, then such Reimbursement Obligation shall
bear interest from and after such day, until paid in full, at the interest rate
applicable to a Floating Rate Advance.
3.8 Cash Collateral. Notwithstanding anything to the contrary herein or
in any application for a Letter of Credit, after the occurrence and during the
continuance of Default, the Borrower shall, upon the Agent's demand, deliver to
the Agent for the benefit of the Lenders and the Issuing Banks, cash, or other
collateral of a type satisfactory to the Required Lenders, having a value, as
determined by such Lenders, equal to the aggregate outstanding L/C Obligations.
Any such collateral shall be held by the Agent in a separate interest bearing
account appropriately designated as a cash collateral account in relation to
this Agreement and the Letters of Credit and retained by the Agent for the
benefit of the Lenders and the Issuing Banks as collateral security for the
Borrower's obligations in respect of this Agreement and each of the Letters of
Credit and L/C Drafts. Such amounts shall be applied to reimburse the Issuing
Banks for drawings or payments under or pursuant to Letters of Credit or L/C
Drafts, or if no such reimbursement is required, to payment of such of the other
Obligations as the Agent shall determine. If no Default shall be continuing,
amounts (including
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interest income) remaining in any cash collateral account established pursuant
to this Section 3.8 which are not to be applied to reimburse an Issuing Bank for
amounts actually paid or to be paid by such Issuing Bank in respect of a Letter
of Credit or L/C Draft, shall be returned to the Borrower (after deduction of
the Agent's expenses incurred in connection with such cash collateral account).
3.9 Letter of Credit Fees. The Borrower agrees to pay (i) on each
Payment Date and on the Revolving Loan Termination Date, in arrears, to the
Agent for the ratable benefit of the Lenders, except as set forth in Section
9.2, a letter of credit fee at a rate per annum equal to the Applicable L/C Fee
Percentage on the average daily outstanding face amount available for drawing
under all standby Letters of Credit, (ii) on each Payment Date and on the
Revolving Loan Termination Date, in arrears, to the Agent for the sole account
of each Issuing Bank, a letter of credit fee of one-quarter of one percent
(0.25%) per annum on the average daily outstanding face amount available for
drawing under all standby Letters of Credit issued by such Issuing Bank, and
(iii) to the Agent for the benefit of each Issuing Bank, all customary fees and
other issuance, amendment, document examination, negotiation and presentment
expenses and related charges in connection with the issuance, amendment,
presentation of L/C Drafts, and the like customarily charged by such Issuing
Bank with respect to standby and commercial Letters of Credit, including,
without limitation, standard commissions with respect to commercial Letters of
Credit, payable at the time of invoice of such amounts.
3.10 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(c), each Issuing Bank shall, no later than the tenth
Business Day following the last day of each month, provide to the Agent, upon
the Agent's request, schedules, in form and substance reasonably satisfactory to
the Agent, showing the date of issue, account party, amount, expiration date and
the reference number of each Letter of Credit issued by it outstanding at any
time during such month and the aggregate amount payable by the Borrower during
such month. In addition, upon the request of the Agent, each Issuing Bank shall
furnish to the Agent copies of any Letter of Credit and any application for or
reimbursement agreement with respect to a Letter of Credit to which the Issuing
Bank is party and such other documentation as may reasonably be requested by the
Agent. Upon the request of any Lender, the Agent will provide to such Lender
information concerning such Letters of Credit.
3.11 Indemnification; Exoneration. (a) In addition to amounts payable
as elsewhere provided in this Article III, the Borrower hereby agrees to
protect, indemnify, pay and save harmless the Agent, each Issuing Bank and each
Lender from and against any and all liabilities and costs which the Agent, such
Issuing Bank or such Lender may incur or be subject to as a consequence, direct
or indirect, of (i) the issuance of any Letter of Credit other than, in the case
of the applicable Issuing Bank, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
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(b) As among the Borrower, the Lenders, the Agent and the Issuing
Banks, the Borrower assumes all risks of the acts and omissions of, or misuse of
such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Borrower at the time of request for any Letter of Credit,
neither the Agent, any Issuing Bank nor any Lender shall be responsible (in the
absence of gross negligence or willful misconduct in connection therewith, as
determined by the final judgment of a court of competent jurisdiction): (i) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of the Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Agent, the Issuing Banks and the Lenders,
including, without limitation, any Governmental Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Bank's rights or powers
under this Section 3.11.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Agent or any Lender under any
resulting liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.11 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this
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Agreement and having general applicability to all banks within the jurisdiction
in which such Lender operates (excluding, for the avoidance of doubt, the effect
of and phasing in of capital requirements or other regulations or guidelines
passed prior to the date of this Agreement), or any interpretation or
application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Loans, its L/C
Interests, the Letters of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Rate Loans) with respect to its
Loans, L/C Interests or the Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Loans, the L/C Interests or the
Letters of Credit or reduces any amount received by any Lender or any
applicable Lending Installation in connection with Loans or Letters of
Credit, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Loans or
L/C Interests held or interest received by it or by reference to the
Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by the Borrower of written demand by such Lender pursuant to Section
4.5, the Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Loans, L/C Interests, the Letters of Credit or its obligation to
make Loans hereunder, then, within 15 days after receipt by the Borrower of
written demand by such Lender pursuant to Section 4.5, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
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return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "CHANGE" means (i) any change after
the date of this Agreement in the "Risk-Based Capital Guidelines" (as defined
below) excluding, for the avoidance of doubt, the effect of any phasing in of
such Risk-Based Capital Guidelines or any other capital requirements passed
prior to the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement and having general applicability to all banks and
financial institutions within the jurisdiction in which such Lender operates
which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type and maturity appropriate to match fund Eurodollar Rate
Advances are not available or (y) the interest rate applicable to a Type of
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Agent shall suspend the availability of the affected Type of
Advance and, in the case of any occurrence set forth in clause (i) require any
Advances of the affected Type to be repaid.
4.4 Funding Indemnification. If any payment of a Eurodollar Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Eurodollar Rate Advance is not made on the date specified by the Borrower for
any reason other than default by the Lenders, the Borrower indemnifies each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Eurodollar Rate Advance.
4.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Rate Loans to reduce any liability of the Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to Section 2.15(E) or to
this Article IV shall use its best efforts to notify the Borrower and the Agent
in writing of any Change, law, policy, rule, guideline or directive giving rise
to such demand for compensation not later than ninety (90) days following the
date upon which the responsible account officer of such Lender knows or should
have
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known of such Change, law, policy, rule, guideline or directive. Any demand for
compensation pursuant to this Article IV shall be in writing and shall state the
amount due, if any, under Section 4.1, 4.2 or 4.4 and shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount. Such written demand shall be rebuttably presumed correct for all
purposes. Determination of amounts payable under such Sections in connection
with a Eurodollar Rate Loan shall be calculated as though each Lender funded its
Eurodollar Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. The
obligations of the Borrower under Sections 4.1, 4.2 and 4.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. The effectiveness of this
Agreement and the obligation of each Lender to make any Loan requested to be
made by it from and after the Closing Date, and the obligation of the Agent to
issue and of each Lender with a Revolving Loan Commitment to participate in any
Letter of Credit from and after the Closing Date, shall be subject to (a)
payment by the Borrower to the Agent for the account of the Lenders of the fees
payable by the Borrower as set forth in the letter agreement among the Borrower,
the Lead Arranger and the Agent dated as of April 19, 1999 and (b) satisfaction
of the conditions set forth in the Term Sheet dated April 1999 and included
under Tab 4 of the Confidential Information Memorandum dated April 1999 prepared
by the Borrower and delivered to the Lenders (the "BANK BOOK"); and (c) receipt
from the Borrower by the Agent each of the following, with sufficient copies for
the Lenders, all in form and substance satisfactory to the Agent and the
Lenders:
(1) Copies of the Articles of Incorporation of the Borrower,
together with all amendments and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction
of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its By-Laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution,
amendment, restatement and/or reaffirmation of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signature of the officers of the Borrower authorized
to sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower;
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(4) A certificate, in form and substance satisfactory to the
Agent, signed by the chief financial officer of the Borrower, stating
that on Closing Date no Default or Unmatured Default has occurred and
is continuing;
(5) A written opinion of the Borrower's counsel, addressed to
the Agent and the Lenders, substantially in the form of Exhibit F
hereto, and a written opinion of Sidley & Austin, special counsel to
the Agent, addressed to the Agent and the Lenders, as to enforceability
of certain of the Loan Documents under Illinois law;
(6) Notes payable to the order of each of the applicable
Lenders;
(7) Written money transfer instructions reasonably requested
by the Agent, addressed to the Agent and signed by an Authorized
Officer;
(8) Information satisfactory to the Agent and the Required
Lenders regarding the Borrower's Year 2000 Program; and
(9) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested, including, without limitation
all of the documents reflected on the List of Closing Documents
attached as Exhibit G to this Agreement.
5.2 Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance, issue any Letter of Credit or purchase any
participation therein, unless on the applicable Borrowing Date, or in the case
of a Letter of Credit, the date on which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article
VI are true and correct as of such Borrowing Date except for changes
reflecting events, conditions or transactions permitted or not
prohibited by this Agreement.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 5.2(i) and (ii) have been satisfied. Any Lender may require a duly
completed officer's certificate in substantially the form of Exhibit H hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit I hereto as a condition to making an Advance.
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ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrower and to issue the Letters of Credit described herein, the Borrower
represents and warrants as follows to each Lender and the Agent as of the
Closing Date, and thereafter on each date as required by Section 5.2:
6.1 Organization; Corporate Powers. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, (iii) has filed and maintained
effective (unless exempt from the requirements for filing) a current Business
Activity Report with the appropriate Governmental Authority in the States in
which it is required to do so and (iv) has all requisite corporate power and
authority to own, operate and encumber its property and to conduct its business
as presently conducted and as proposed to be conducted.
6.2 Authority.
(A) The Borrower and each of its Subsidiaries has the requisite
corporate power and authority (i) to execute, deliver and perform each of the
Transaction Documents which are to be or which have been executed by it as
required by the Original Credit Agreement or this Agreement on or prior to
Closing Date and (ii) to file the Transaction Documents which must be filed by
it in connection with this Agreement on or prior to the Closing Date with any
Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may
be, of each of the Transaction Documents which must be executed or filed by the
Borrower or any of its Subsidiaries or which have been executed or filed as
required by the Original Credit Agreement or this Agreement on or prior to the
Closing Date and to which the Borrower or any of its Subsidiaries is party, and
the consummation of the transactions contemplated thereby, have been duly
approved by the respective boards of directors and, if necessary, the
shareholders of the Borrower and its Subsidiaries, and such approvals have not
been rescinded. No other corporate action or proceedings on the part of the
Borrower or its Subsidiaries are necessary to consummate such transactions.
(C) Each of the Transaction Documents to which the Borrower or any of
its Subsidiaries is a party has been duly executed, delivered or filed, as the
case may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally), is in full force and effect and no
material term or condition thereof has been amended, modified or waived from the
terms and conditions contained in the Transaction Documents delivered to the
Agent pursuant to Section 5.1 without the prior written consent of the Required
Lenders, and the Borrower and its Subsidiaries have, and, to the best of the
Borrower's and its Subsidiaries' knowledge, all other parties thereto have,
performed and complied with all the terms, provisions, agreements and conditions
set forth therein and required to be performed or complied
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with by such parties on or before the Closing Date, and no unmatured default,
default or breach of any covenant by any such party exists thereunder.
6.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents and other Transaction Documents to
which the Borrower or any of its Subsidiaries is a party do not and will not (i)
conflict with the certificate or articles of incorporation or by-laws of the
Borrower or any such Subsidiary, (ii) constitute a tortious interference with
any Contractual Obligation of the Borrower or any such Subsidiary or conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law (including, without
limitation, any Environmental Property Transfer Act) or Contractual Obligation
of the Borrower or any such Subsidiary, or require termination of any
Contractual Obligation, except such interference, breach, default or termination
which individually or in the aggregate could not reasonably be expected to have
a Material Adverse Effect, (iii) result in or require the creation or imposition
of any Lien whatsoever upon any of the property or assets of the Borrower or any
such Subsidiary, other than Liens permitted by the Loan Documents, or (iv)
require any approval of the Borrower's or any such Subsidiary's shareholders
except such as have been obtained. Except as set forth on Schedule 6.3 to this
Agreement, the execution, delivery and performance of each of the Transaction
Documents to which the Borrower or any of its Subsidiaries is a party do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except (i) filings, consents or notices
which have been made, obtained or given, or which, if not made, obtained or
given, individually or in the aggregate could not reasonably be expected to have
a Material Adverse Effect, and (ii) filings necessary to create or perfect
security interests in the Collateral.
6.4 Financial Statements.
(A) The pro forma financial statements of the Borrower and its
Subsidiaries, copies of which are included under Section 6(A) of the Bank Book,
present on a pro forma basis the financial condition of the Borrower and its
Subsidiaries as of the dates indicated, and reflect on a pro forma basis those
liabilities reflected in the notes thereto and resulting from consummation of
the transactions contemplated by this Agreement, and the payment or accrual of
all fees and expenses payable on the Closing Date with respect to any of the
foregoing. The projections and assumptions expressed in the financials
referenced in this Section 6.4(A) were prepared in good faith and represent
management's opinion based on the information available to the Borrower at the
time so furnished.
(B) Complete and accurate copies of the following financial statements,
in each case for the Borrower and its Subsidiaries, and the following related
information have been delivered to the Agent: (1) audited balance sheets,
statements of operations, statements of cash flows and statement of changes in
shareholders' equity (deficit) for the fiscal year ended June 27, 1998, and the
audit report related thereto; (2) unaudited balance sheets, statements of
operations, statements of cash flows and statement of liabilities and
shareholders' equity (deficit) for the fiscal quarter ended
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September 26, 1998; and (3) unaudited balance sheets, statements of operations
and statements of cash flows as of and for the 26 week period ended December 26,
1998.
6.5 No Material Adverse Change. (a) Since December 26, 1998 up to the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise), results of operations, performance,
properties or prospects of Enterprises, the Borrower, or the Borrower and its
Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
(b) Since the Closing Date, there has occurred no change in the
business, properties, condition (financial or otherwise), results of operations,
performance, properties or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
6.6 Taxes.
(A) Tax Examinations. All deficiencies which have been asserted against
the Borrower or any of the Borrower's Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and as of the Closing Date no issue has
been raised by any taxing authority in any such examination which, by
application of similar principles, reasonably can be expected to result in
assertion by such taxing authority of a material deficiency for any other year
not so examined which has not been reserved for in the Borrower's consolidated
financial statements to the extent, if any, required by Agreement Accounting
Principles. Except as permitted pursuant to Section 7.2(D), neither the Borrower
nor any of the Borrower's Subsidiaries anticipates any material tax liability
with respect to the years which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of the Borrower and
its Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles. The Borrower has no knowledge of any proposed
tax assessment against the Borrower or any of its Subsidiaries that will have or
could reasonably be expected to have a Material Adverse Effect.
6.7 Litigation; Loss Contingencies and Violations. Except as set forth
in Schedule 6.7 (the "DISCLOSED LITIGATION"), there is no action, suit,
proceeding, arbitration or, to the Borrower's knowledge, investigation before or
by any Governmental Authority or private arbitrator pending or, to the
Borrower's knowledge, threatened against the Borrower or any of its Subsidiaries
or any property of any of them. None of the Disclosed Litigation (i) challenges
the validity or the
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enforceability of any material provision of the Transaction Documents or (ii)
will have or could reasonably be expected to have a Material Adverse Effect.
There is no material loss contingency within the meaning of Agreement Accounting
Principles which has not been reflected in the consolidated financial statements
of the Borrower prepared and delivered pursuant to Section 7.1(A) for the fiscal
period during which such material loss contingency was incurred. Neither the
Borrower nor any of its Subsidiaries is (A) in violation of any applicable
Requirements of Law which violation will have or could reasonably be expected to
have a Material Adverse Effect, or (B) subject to or in default with respect to
any final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have or could reasonably be expected to have a Material Adverse Effect.
6.8 Subsidiaries. Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of Holdings, Enterprises, the Borrower,
its Subsidiaries and any other Person in which Holdings, Enterprises, the
Borrower or any of its Subsidiaries holds an Equity Interest (both narratively
and in chart form); and (ii) accurately sets forth (A) the correct legal name,
the jurisdiction of incorporation and the jurisdictions in which each of the
Borrower and the direct and indirect Subsidiaries of the Borrower is qualified
to transact business as a foreign corporation, (B) the authorized, issued and
outstanding shares of each class of Capital Stock of Holdings, Enterprises, the
Borrower and each of its Subsidiaries and the owners of such shares (both as of
the Closing Date and on a fully-diluted basis), and (C) a summary of the direct
and indirect partnership, joint venture, or other Equity Interests, if any, of
the Borrower and each Subsidiary of the Borrower in any Person that is not a
corporation. None of the issued and outstanding Capital Stock of the Borrower or
any of its Subsidiaries is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Capital Stock. The outstanding Capital Stock of Enterprises, the Borrower and
each of the Borrower's Subsidiaries is duly authorized, validly issued, fully
paid and nonassessable and is not Margin Stock. The Borrower has no Subsidiaries
other than IHC, PRF and the Mexican Subsidiaries.
6.9 ERISA. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither the Borrower nor any member of the Controlled
Group has incurred any liability to the PBGC which remains outstanding other
than the payment of premiums, and there are no premium payments which have
become due which are unpaid. Schedule B to the most recent annual report filed
with the IRS with respect to each Benefit Plan and furnished to the lenders is
complete and accurate. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Borrower nor any member of
the Controlled Group has (i) failed to make a required contribution or payment
to a Multiemployer Plan or (ii) made a complete or partial withdrawal under
Sections 4203 or 4205 of ERISA from a Multiemployer Plan where such failure or
such withdrawal could reasonably be expected to subject the Borrower to
liability in excess of $1,000,000. Neither the Borrower nor any member of the
Controlled Group has failed to make a required installment or any other required
payment under Section 412 of the Code on or before the due date for such
installment or other
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payment. Neither the Borrower nor any member of the Controlled Group is required
to provide security to a Benefit Plan under Section 401(a)(29) of the Code due
to a Plan amendment that results in an increase in current liability for the
plan year. Each Plan which is intended to be qualified under Section 401(a) of
the Code as currently in effect is so qualified, and each trust related to any
such Plan is exempt from federal income tax under Section 501(a) of the Code as
currently in effect. The Borrower and all Subsidiaries are in compliance in all
respects with the responsibilities, obligations and duties imposed on them by
ERISA and the Code with respect to all Plans, except where such noncompliance
could not reasonably be expected to subject the Borrower to liability in excess
of $1,000,000. Neither the Borrower nor any of its Subsidiaries nor any
fiduciary of any Plan has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code which could reasonably be
expected to subject the Borrower to liability in excess of $1,000,000. Neither
the Borrower nor any member of the Controlled Group has taken or failed to take
any action which would constitute or result in a Termination Event, which action
or inaction could reasonably be expected to subject the Borrower to liability in
excess of $1,000,000. Neither the Borrower nor any Subsidiary is subject to any
liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA and no other
member of the Controlled Group is subject to any liability under Sections 4063,
4064, 4069, 4204 or 4212(c) of ERISA which could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000. Neither the Borrower
nor any of its Subsidiaries has, by reason of the transactions contemplated
hereby, any obligation to make any payment to any employee pursuant to any Plan
or existing contract or arrangement.
6.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents, the representations and warranties of the Borrower and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Agent and the Lenders pursuant to the terms thereof,
taken as a whole, do not contain as of the date furnished any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
6.11 Securities Activities. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12 Material Agreements. Neither the Borrower nor any of its
Subsidiaries has received notice or has knowledge that (i) it is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any Contractual Obligation applicable to it, or (ii)
any condition exists which, with the giving of notice or the lapse of time or
both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such default or defaults, if any,
individually or in the aggregate will not have or could not reasonably be
expected to have a Material Adverse Effect.
6.13 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the
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failure to so comply individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
6.14 Assets and Properties. The Borrower and each of its Subsidiaries
has good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned by it or a valid leasehold interest in all
of its leased assets (except insofar as marketability may be limited by any laws
or regulations of any Governmental Authority affecting such assets), and all
such assets and property are free and clear of all Liens, except Liens securing
the Obligations and Liens permitted under Section 7.3(C). Substantially all of
the assets and properties owned by, leased to or used by the Borrower and/or
each such Subsidiary of the Borrower are in adequate operating condition and
repair, ordinary wear and tear excepted. Except for Liens granted to the Agent
for the benefit of the Agent and the Holders of Secured Obligations, neither
this Agreement nor any other Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of the Borrower or such Subsidiary in and to any of such assets in a manner that
would have or could reasonably be expected to have a Material Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Borrower nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16 Insurance. Schedule 6.16 to this Agreement accurately sets forth
as of the Closing Date all insurance policies and programs currently in effect
with respect to the respective properties and assets and business of the
Borrower and its Subsidiaries, specifying, for each such policy and program, (i)
the amount thereof, (ii) the risks insured against thereby, (iii) the name of
the insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, (v) the expiration date thereof, (vi) the annual
premium with respect thereto, and (vii) any reserves relating to any
self-insurance program that is in effect. Such insurance policies and programs
reflect coverage that is reasonably consistent with prudent industry practice.
6.17 Labor Matters.
(A) Except as listed on Schedule 6.17 to this Agreement, there are on
the Closing Date no collective bargaining agreements, other labor agreements or
Multiemployer Plans covering any of the employees of the Borrower or any of its
Subsidiaries. As of the Closing Date, no attempt to organize the employees of
the Borrower, and no labor disputes, strikes or walkouts affecting the
operations of the Borrower or any of its Subsidiaries, is pending, or, to the
Borrower's knowledge, threatened, planned or contemplated.
(B) Set forth in Schedule 6.17 to this Agreement is a list, as of the
Closing Date, of all material consulting agreements, executive compensation
plans, deferred compensation agreements,
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Love Family compensation arrangements, employee pension plans or retirement
plans, employee profit sharing plans, employee stock purchase and stock option
plans, severance plans, group life insurance, hospitalization insurance or other
plans or arrangements of the Borrower and its Subsidiaries providing for
benefits for employees of the Borrower and its Subsidiaries.
6.18. Year 2000 Issues. The Borrower and its Subsidiaries have made a
full and complete assessment of the Year 2000 Issues and have a realistic and
achievable program for remediating the Year 2000 Issues on a timely basis, as
described in the Borrower's quarterly report on form 10-Q filed with the
Commission for the fiscal quarter ended March 27, 1999 (the "YEAR 2000
PROGRAM"). Based on this assessment and the Year 2000 Program, the Borrower
reasonably believes that Year 2000 Issues cannot be expected to have a Material
Adverse Effect.
6.19 Environmental Matters. (a) Except as disclosed on Schedule 6.19 to
this Agreement, in the Executive Summary of the Environmental Audit, a copy of
which Executive Summary was delivered by the Borrower to each Lender prior to
the Closing Date, or otherwise in the Environmental Audit, a copy of which was
delivered by the Borrower to the Agent and made available by the Agent to each
Lender prior to the Closing Date:
(i) the operations of the Borrower and its Subsidiaries comply
in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Borrower and its Subsidiaries have all permits,
licenses or other authorizations required under Environmental, Health
or Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of
their respective present property or operations, or, to the best of,
the Borrower's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its Subsidiaries,
any judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any remedial
action; or (C) any material claims or liabilities arising from the
Release or threatened Release of a Contaminant into the environment;
(iv) there is not now, nor to the best of the Borrower's or
any of its Subsidiaries' knowledge has there ever been on or in the
property of the Borrower or any of its Subsidiaries any landfill, waste
pile, underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing material;
and
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(v) neither the Borrower nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(b) For purposes of this Section 6.19 "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
the Borrower to liability in excess of $1,000,000.
6.20 Other Indebtedness.
(i) Prior to the Original Closing Date and immediately prior
to the making of the initial Loans under the Original Credit Agreement,
the Borrower issued the Senior Subordinated Notes in an aggregate
original principal amount of $200,000,000 and received the net proceeds
thereof; the subordination provisions of the Senior Subordinated Note
Indenture are enforceable against the holders of the Senior
Subordinated Notes and the Secured Obligations contemplated under this
Agreement and the other Loan Documents constitute "Senior Debt" under
the terms of the Senior Subordinated Note Indenture entitled to the
benefit of the subordination provisions contained therein.
(ii) Prior to the Original Closing Date and immediately prior
to the making of the initial Loans under the Original Credit Agreement,
the Borrower issued the Senior Notes in an aggregate original principal
amount of $100,000,000 and received the net proceeds thereof.
(iii) The subordination provisions of the Subordinated Note
Agreement are enforceable against the holders of the Subordinated Notes
and the Secured Obligations contemplated under this Agreement and the
other Loan Documents constitute "Senior Debt" under the terms of the
Subordinated Note Agreement entitled to the benefit of the
subordination provisions contained therein.
6.21 Fiscal Periods. The ending dates of all fiscal quarters of the
Borrower from the Closing Date until the Tranche B Termination Date are set
forth on Schedule 6.21 to this Agreement.
ARTICLE VII: COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations), unless the Required Lenders shall
otherwise give prior written consent:
7.1 Reporting. The Borrower shall:
(A) Financial Reporting. Furnish to the Lenders:
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(i) Monthly Reports. As soon as practicable, and in any event
within twenty (20) days after the end of each calendar month, the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for such
calendar month, certified by the chief financial officer or treasurer
of the Borrower on behalf of the Borrower as fairly presenting the
consolidated financial position of the Borrower and its Subsidiaries as
at the dates indicated and the results of their operations and cash
flows for the calendar months indicated in accordance with Agreement
Accounting Principles, subject to normal year end adjustments.
(ii) Quarterly Reports. As soon as practicable, and in any
event within forty-five (45) days after the end of each fiscal quarter
in each fiscal year, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such period and the related
consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, certified by the chief financial officer or treasurer of the
Borrower on behalf of the Borrower as fairly presenting the
consolidated financial position of the Borrower and its Subsidiaries as
at the dates indicated and the results of their operations and cash
flows for the periods indicated in accordance with Agreement Accounting
Principles, subject to normal year end adjustments.
(iii) Annual Reports. (a) as soon as practicable, the
consolidated and consolidating balance sheets of Holdings and its
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income, stockholders'
equity and cash flows of Holdings and its Subsidiaries for such fiscal
year, which consolidating financial statements may treat the Borrower
and its Subsidiaries as a single entity, (b) as soon as practicable,
and in any event within ninety (90) days after the end of each fiscal
year, the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year, and in
comparative form the corresponding figures for the previous fiscal
year, in form and substance sufficient to calculate the financial
covenants set forth in Section 7.4, (c) a schedule from the Borrower
setting forth for each item in clause (b) hereof, the corresponding
figures from the consolidated financial budget for the current fiscal
year delivered pursuant to Section 7.1(A)(v), and (d) an audit report
on the items listed in clause (b) hereof of independent certified
public accountants of recognized national standing, which audit report
shall be unqualified and shall state that such financial statements
fairly present the consolidated and consolidating financial position of
Holdings and its Subsidiaries or the Borrower and its Subsidiaries, as
applicable, as at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with
Agreement Accounting Principles and that the examination by such
accountants in connection with such consolidated and consolidating
financial statements has been made in accordance with
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generally accepted auditing standards. The deliveries made pursuant to
this clause (iii) shall be accompanied by (x) any management letter
prepared by the above-referenced accountants and (y) a certificate of
such accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(iv) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i), (ii) and (iii) of this
Section 7.1(A), an Officer's Certificate of the Borrower, substantially
in the form of Exhibit H attached hereto and made a part hereof,
stating that no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof and
(b) pursuant to clauses (ii) and (iii) of this Section 7.1(A), a
compliance certificate, substantially in the form of Exhibit I attached
hereto and made a part hereof, signed by the Borrower's chief financial
officer or treasurer, setting forth calculations for the period then
ended for Section 2.5(B), if applicable, which demonstrate compliance,
when applicable, with the provisions of Section 7.4, and which
calculate the Leverage Ratio for purposes of determining the then
Applicable Eurodollar Margin, Applicable Floating Rate Margin and
Applicable Commitment Fee Percentage.
(v) Budgets; Business Plans; Financial Projections. As soon as
practicable and in any event not later than thirty (30) days after the
beginning of each fiscal year, a copy of the plan and forecast
(including a projected balance sheet, income statement and funds flow
statement) of the Borrower and its Subsidiaries for the upcoming fiscal
year prepared in such detail as shall be reasonably satisfactory to the
Agent.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of the Borrower obtaining knowledge (i) of any condition or event
which constitutes a Default or Unmatured Default, or becoming aware that any
Lender or Agent has given any written notice with respect to a claimed Default
or Unmatured Default under this Agreement, or (ii) that any Person has given any
written notice to the Borrower or any Subsidiary of the Borrower or taken any
other action with respect to a claimed default or event or condition of the type
referred to in Section 8.1(e), deliver to the Agent and the Lenders an Officer's
Certificate specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action the Borrower has taken, is taking and proposes to take with respect
thereto.
(C) Lawsuits. (i) Promptly upon the Borrower obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its Subsidiaries not
previously disclosed as Disclosed Litigation, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits,
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proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Borrower's reasonable
judgment, the Borrower or any of its Subsidiaries to liability in an amount
aggregating $5,000,000 or more (exclusive of claims covered by insurance
policies of the Borrower or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim coverage on
such claims and exclusive of claims covered by the indemnity of a financially
responsible indemnitor in favor of the Borrower or any of its Subsidiaries
unless the indemnitor has disclaimed or reserved the right to disclaim coverage
thereof), give written notice thereof to the Agent and the Lenders and provide
such other information as may be reasonably available to enable each Lender and
the Agent and its counsel to evaluate such matters; and (ii) in addition to the
requirements set forth in clause (i) of this Section 7.1(C), upon request of the
Agent or the Required Lenders, promptly give written notice of the status of any
Disclosed Litigation or action, suit, proceeding, governmental investigation or
arbitration covered by a report delivered pursuant to clause (i) above and
provide such other information as may be reasonably available to it that would
not violate any attorney-client privilege by disclosure to the Lenders to enable
each Lender and the Agent and its counsel to evaluate such matters.
(D) Insurance. As soon as practicable and in any event within ninety
(90) days of the end of each fiscal year commencing with fiscal year ending June
26, 1999, deliver to the Agent and the Lenders a report in form and substance
reasonably satisfactory to the Agent and the Lenders outlining all material
insurance coverage maintained as of the date of such report by the Borrower and
its Subsidiaries and the duration of such coverage.
(E) ERISA Notices. Deliver or cause to be delivered to the Agent and
the Lenders, at the Borrower's expense, the following information and notices as
soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Borrower
obtains knowledge that a Termination Event has occurred which, when
aggregated with any previous Termination Events during the twelve
months prior to such Termination Event, could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000, a written
statement of the chief financial officer of the Borrower describing
such Termination Event(s) and the action, if any, which the Borrower
has taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto and (b) within fifteen (15) Business Days after any
officer of any member of the Controlled Group obtains knowledge that a
Termination Event has occurred which, when aggregated with any previous
Termination Events during the twelve months prior to such Termination
Event, could reasonably be expected to subject the Borrower to
liability in excess of $1,000,000, a written statement of the chief
financial officer of the Borrower describing such Termination Event(s)
and the action, if any, which the member of the Controlled Group has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
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(ii) within fifteen (15) Business Days after any officer of
the Borrower or any of its Subsidiaries obtains knowledge that a
prohibited transaction (defined in Sections 406 of ERISA and Section
4975 of the Code) has occurred which, when aggregated with any previous
prohibited transactions during the twelve months prior to such
prohibited transaction, could reasonably be expected to subject the
Borrower to liability in excess of $1,000,000, a statement of the chief
financial officer of the Borrower describing such transaction(s) and
the action which the Borrower or such Subsidiary has taken, is taking
or proposes to take with respect thereto;
(iii) within fifteen (15) Business Days after the material
increase in the benefits of any existing Plan or the establishment of
any new Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which the
Borrower or any member of the Controlled Group was not previously
contributing where the aggregate annual contributions to such Plan(s)
resulting therefrom are or could reasonably be expected to exceed
$1,000,000, notification of such increase, establishment, commencement
or obligation to commence and the amount of such contributions;
(iv) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a Plan
under Section 401(a) of the Code, copies of each such letter;
(v) within fifteen (15) Business Days after the establishment
of any Foreign Employee Benefit Plan or the commencement of, or
obligation to commence, contributions to any Foreign Employee Benefit
Plan to which the Borrower or any Subsidiary was not previously
contributing, where the aggregate annual contribution by the Borrower
or any Subsidiary to such Plan are or could reasonably be expected to
exceed $1,000,000, notification of such establishment, commencement or
obligation to commence and the amount of such contributions;
(vi) within fifteen (15) Business Days after the filing
thereof with the DOL, IRS or PBGC, copies of each annual report (form
5500 series), including Schedule B thereto, filed with respect to each
Benefit Plan;
(vii) within fifteen (15) Business Days after receipt by the
Borrower or any member of the Controlled Group of each actuarial report
for any Benefit Plan or Multiemployer Plan and each annual report for
any Multiemployer Plan, copies of each such report;
(viii) within fifteen (15) Business Days after the filing
thereof with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all communications received by the
Borrower or a member of the Controlled Group with respect to such
request;
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(ix) within fifteen (15) Business Days after receipt by the
Borrower or any member of the Controlled Group of the PBGC's intention
to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(x) within fifteen (15) Business Days after receipt by the
Borrower or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability
which, when aggregated with any previous withdrawal liability with
respect to which any such Person has received a notice during the
twelve months prior to such notice, could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000, copies of
each such notice;
(xi) within fifteen (15) Business Days after the Borrower or
any member of the Controlled Group fails to make a required installment
or any other required payment under Section 412 of the Code on or
before the due date for such installment or payment and the aggregate
of such unpaid installments or other required payments exceeds
$1,000,000, a notification of such failure; and
(xii) within fifteen (15) Business Days after any officer of
the Borrower or any member of the Controlled Group knows or has reason
to know that (a) a Multiemployer Plan has been terminated, (b) the
administrator or plan sponsor of a Multiemployer Plan intends to
terminate a Multiemployer Plan, or (c) the PBGC has instituted or will
institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, if any such termination or proceedings,
individually or in the aggregate, could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000.
For purposes of this Section 7.1(E), the Borrower, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the Plan Administrator (as defined in Section 3(16)(A) of ERISA) of any Plan of
which the Borrower or any member of the Controlled Group or such Subsidiary is
the plan sponsor.
(F) Labor Matters. Notify the Agent in writing, promptly upon the
Borrower's learning thereof, of (i) any material labor dispute to which the
Borrower or any of its Subsidiaries may become a party, including, without
limitation, any strikes, lockouts or other disputes relating to such Persons'
plants and other facilities and (ii) any failure to comply with the Worker
Adjustment and Retraining Notification Act with respect to the closing of any
plant or other facility of the Borrower or any of its Subsidiaries.
(G) Other Indebtedness. Deliver to the Agent (i) a copy of each regular
report, notice or other written communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Borrower to the holders of funded Indebtedness, the outstanding
principal amount of which Indebtedness is in excess of $15,000,000, pursuant to
the terms of the agreements governing such Indebtedness, such delivery to be
made at the same time and
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by the same means as such notice or other communication is delivered to such
holders, and (ii) a copy of each notice or other written communication received
by the Borrower from the from the holders of funded Indebtedness, the
outstanding principal amount of which Indebtedness is in excess of $15,000,000,
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Borrower.
(H) Other Reports. Deliver or cause to be delivered to the Agent copies
of all financial statements, reports and notices, if any, sent or made available
generally by the Borrower to its securities holders or filed with the Commission
by the Borrower, all press releases made available generally by the Borrower or
any of the Borrower's Subsidiaries to the public concerning material
developments in the business of the Borrower or any such Subsidiary (including,
without limitation, developments with respect to Year 2000 Issues) and all
notifications received from the Commission by the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act of 1934 and the rules promulgated
thereunder.
(I) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt by the Borrower, a copy of (i) any notice or claim
to the effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the Release by the Borrower, any of its
Subsidiaries, or any other Person of any Contaminant into the environment, and
(ii) any notice alleging any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries if, in either
case, such notice or claim relates to an event which could reasonably be
expected to subject the Borrower to liability in excess of $1,000,000.
(J) Other Information. Promptly upon receiving a request therefor from
the Agent or any Lender, prepare and deliver to the Agent such other information
with respect to Holdings, Enterprises, the Borrower, any of its Subsidiaries, or
the Collateral, including, without limitation, schedules identifying and
describing the Collateral and any dispositions thereof or any Asset Sale or
Financing (and the use of the Net Cash Proceeds thereof), as from time to time
may be reasonably requested by the Agent.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. The Borrower shall, and shall cause each
of its Subsidiaries to, at all times maintain its corporate existence and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its businesses.
(B) Corporate Powers; Conduct of Business. The Borrower shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Borrower will, and
will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted.
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(C) Compliance with Laws, Etc. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all Permits necessary for
its operations and maintain such Permits in good standing unless failure to
comply or obtain could not reasonably be expected to have a Material Adverse
Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Borrower shall
pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 7.3(C)) upon any of the Borrower's or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor. The Borrower will not, nor
will it permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person other than as contemplated by the
Tax Allocation Agreement.
(E) Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect, the insurance policies and programs listed on Schedule 6.16 to this
Agreement or substantially similar policies and programs or other policies and
programs as reflect coverage that is reasonably consistent with prudent industry
practice. The Borrowers shall deliver to the Agent endorsements (y) to all "All
Risk" physical damage insurance policies on all of the Borrowers' tangible real
and personal property and assets and business interruption insurance policies
naming the Agent loss payee, and (z) to all general liability and other
liability policies naming the Agent an additional insured. In the event the
Borrower or any of its Subsidiaries at any time or times hereafter shall fail to
obtain or maintain any of the policies or insurance required herein or to pay
any premium in whole or in part relating thereto, then the Agent, without
waiving or releasing any obligations or resulting Default hereunder, may at any
time or times thereafter (but shall be under no obligation to do so) obtain and
maintain such policies of insurance and pay such premiums and take any other
action with respect thereto which the Agent deems advisable. All sums so
disbursed by the Agent shall constitute part of the Obligations, payable as
provided in this Agreement.
(F) Inspection of Property; Books and Records; Discussions. The
Borrower shall permit and cause each of the Borrower's Subsidiaries to permit,
any authorized representative(s) designated by either the Agent or any Lender to
visit and inspect any of the properties of the Borrower or any of
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its Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and independent certified
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours, as often as may be reasonably requested. The
Borrower shall keep and maintain, and cause each of the Borrower's Subsidiaries
to keep and maintain, in all material respects, proper books of record and
account in which entries in conformity with Agreement Accounting Principles
shall be made of all dealings and transactions in relation to their respective
businesses and activities, including, without limitation, transactions and other
dealings with respect to the Collateral. If a Default has occurred and is
continuing, the Borrower, upon the Agent's request, shall turn over any such
records to the Agent or its representatives.
(G) Insurance and Condemnation Proceeds. The Borrower directs (and, if
applicable, shall cause its Subsidiaries to direct) all insurers under policies
of property damage, boiler and machinery and business interruption insurance and
payors of any condemnation claim or award relating to the property to pay all
proceeds payable under such policies or with respect to such claim or award for
any loss with respect to the Collateral directly to the Agent, for the benefit
of the Agent and the Holders of the Secured Obligations; provided, however, in
the event that such proceeds or award are less than $2,500,000 ("EXCLUDED
PROCEEDS"), unless a Default shall have occurred and be continuing, the Agent
shall remit such Excluded Proceeds to the Borrower. Each such policy shall
contain a long-form loss-payable endorsement naming the Agent as loss payee,
which endorsement shall be in form and substance acceptable to the Agent. The
Agent shall, upon receipt of such proceeds (other than Excluded Proceeds) and at
the Borrower's direction, either apply the same to the principal amount of the
Loans outstanding at the time of such receipt and create a corresponding reserve
against the Maximum Revolving Credit Amount in an amount equal to such
application (the "DECISION RESERVE") or hold them as cash collateral for the
Obligations in an interest bearing account. For up to 150 days from the date of
any loss (the "DECISION PERIOD"), the Borrower may notify the Agent that it
intends to restore, rebuild or replace the property subject to any insurance
payment or condemnation award and shall, as soon as practicable thereafter,
provide the Agent detailed information, including a construction schedule and
cost estimates. Should a Default occur at any time during the Decision Period,
should the Borrower notify the Agent that it has decided not to rebuild or
replace such property during the Decision Period, or should the Borrower fail to
notify the Agent of the Borrower's decision during the Decision Period, then the
amounts held as cash collateral pursuant to this Section 7.2(G) or as the
Decision Reserve shall upon the direction of the Required Lenders' be applied as
a mandatory prepayment of the Term Loans pursuant to Section 2.5(B). Proceeds
held as cash collateral pursuant to this Section 7.2(G) or constituting the
Decision Reserve shall be disbursed as payments for restoration, rebuilding or
replacement of such property become due; provided, however, should a Default
occur after the Borrower has notified the Agent that it intends to rebuild or
replace the property, the Decision Reserve or amounts held as cash collateral
may, or shall, upon the Required Lenders' direction, be applied as a mandatory
prepayment of the
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Term Loans pursuant to Section 2.5(B). In the event the Decision Reserve is to
be applied as a mandatory prepayment to the Term Loans, the Borrower shall be
deemed to have requested Revolving Loans in an amount equal to the Decision
Reserve, and such Loans shall be made regardless of any failure of the Borrower
to meet the conditions precedent set forth in Article V. Upon completion of the
restoration, rebuilding or replacement of such property, the unused proceeds
shall constitute Net Cash Proceeds of an Asset Sale and shall be applied as a
mandatory prepayment of the Term Loans pursuant to Section 2.5(B).
(H) ERISA Compliance. The Borrower shall, and shall cause each of the
Borrower's Subsidiaries to, establish, maintain and operate all Plans to comply
in all respects with the provisions of ERISA, the Code, all other applicable
laws, and the regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans, except where such
noncompliance could not reasonably be expected to subject the Borrower to
liability in excess of $1,000,000.
(I) Maintenance of Property. The Borrower shall cause all property used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 7.2(I) shall prevent the
Borrower from discontinuing the operation or maintenance of any of such property
if such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Agent or the Lenders.
(J) Environmental Compliance. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower to liability in excess of $1,000,000.
(K) Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans and the Term Loans to (i) repay existing Indebtedness, (ii)
provide funds for the additional working capital needs and other general
corporate purposes of the Borrower and (iii) pay the Transaction Costs. The
Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Loans to purchase or carry any "Margin Stock" or to make any Acquisition,
other than any Permitted Acquisition pursuant to Section 7.3(G).
(L) Separate Corporate Existence. The Borrower shall take all
reasonable steps (including, without limitation, all steps which the Agent may
from time to time reasonably request) to maintain its and its Subsidiaries'
identity as separate legal entities and to make it apparent to third parties
that Borrower and such Subsidiaries are each an entity with assets and
liabilities distinct from those of Holdings, Enterprises and any of their
respective Affiliates (other than the Borrower and its
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Subsidiaries) (each of Holdings, Enterprises and such other Persons are referred
to in this Section 7.2(L), as the "PARENT"). Without limiting the generality of
the foregoing, the Borrower shall:
(i) require that all full-time employees of the Borrower and
each of its Subsidiaries identify themselves as such and not as
employees of the Parent;
(ii) compensate all employees, consultants, investment
bankers, accountants, lawyers and agents directly, from the Borrower's
or such Subsidiary's applicable bank accounts, for services provided to
the Borrower or such Subsidiary by such employees, consultants,
investment bankers and agents and, if any employee, consultant,
investment banker or agent of the Borrower or any of its Subsidiaries
is also an employee, consultant, investment banker or agent of the
Parent, allocate the compensation of such employee, consultant,
investment banker or agent between the Borrower or the Subsidiary, as
applicable, and the Parent on the basis of actual use of the services
so rendered to the extent practicable and, to the extent such
allocation is not practical, on a basis reasonably related to actual
use of such services;
(iii) allocate all overhead expenses (including, without
limitation, telephone and other utility charges and lease and office
expenses) for items shared between the Borrower or any Subsidiary of
the Borrower and the Parent on the basis of actual use to the extent
practicable and, to the extent such allocation is not practicable, on a
basis reasonably related to actual use;
(iv) cause the Borrower and each Subsidiary of the Borrower to
be named as an insured on the insurance policy covering its property,
or enter into an agreement with the holder of such policy whereby in
the event of a loss in connection with such property, proceeds are paid
to the Borrower or such Subsidiary;
(v) maintain the Borrower's and its Subsidiaries' books and
records complete and separate from those of the Parent;
(vi) ensure that any of the Borrower's or the Parent's
consolidated financial statements or other public information with
respect to the Borrower and its Affiliates prepared on a consolidated
basis contain appropriate disclosures concerning the Borrower's
separate existence;
(vii) not maintain bank accounts or other depository accounts
to which the Parent is an account party, into which the Parent makes
deposits or from which the Parent has the power to make withdrawals;
(viii) not permit the Parent to pay any of the Borrower's
operating expenses (except when paid and charged pursuant to an
allocation based upon actual use, to the extent
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practicable and, to the extent such allocation is not practicable, on a
basis reasonably related to actual use); and
(ix) not pay dividends or make distributions, loans or other
advances to the Parent except to the extent duly authorized by its
board of directors and in accordance with applicable corporation law.
(M) Future Liens on Real Property. The Borrower shall, and shall cause
each of its Subsidiaries that is required to guarantee the Obligations to,
execute and deliver to the Agent, immediately upon its acquisition or leasing of
any real property after the Closing Date, a mortgage, deed of trust, collateral
assignment or other appropriate instrument evidencing a Lien upon any such
acquired property, lease or interest, to be in form and substance reasonably
acceptable to the Agent and subject only to such Liens as otherwise shall be
permitted by this Agreement. The foregoing provision shall apply to the leasing
of any real property only if (i) the term of such lease (without regard to any
extension thereof at then current market rent) is more than five years, (ii)
such real property consists of an operating plant or (iii) such lease has a
material value by reason of a purchase option, below-market rent or otherwise.
(N) Year 2000 Issues. The Borrower shall, and shall cause each of its
Subsidiaries to, take all actions reasonably necessary to successfully implement
the Year 2000 Program and to assure that the Year 2000 Issues will not have a
Material Adverse Effect. The Borrower shall promptly notify the Agent in writing
if any Year 2000 Issues will have or could reasonably be expected to have a
Material Adverse Effect. At the request of the Agent or any Lender, the Borrower
will provide an updated description of the Year 2000 Program, together with any
progress reports with respect thereto.
7.3 Negative Covenants.
(A) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Indebtedness evidenced by the Senior Subordinated Notes,
the Senior Notes, the Subordinated Notes and the Orflex Guaranty;
(iii) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by the Borrower or any of its
Subsidiaries after the Closing Date to finance the acquisition of
assets used in the business, if (1) at the time of such incurrence, no
Default or Unmatured Default has occurred and is continuing or would
result from such incurrence,
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(2) such Indebtedness has a scheduled maturity and is not due on
demand, (3) such Indebtedness does not exceed the lower of the fair
market value or the cost of the applicable fixed assets on the date
acquired, (4) such Indebtedness does not exceed $25,000,000 in the
aggregate outstanding at any time, and (5) any Lien securing such
Indebtedness is permitted under Section 7.3(C) (such Indebtedness being
referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(iv) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(v) Indebtedness in respect of Hedging Obligations permitted
under Section 7.3(Q);
(vi) Indebtedness incurred in connection with the Receivables
Purchase Documents;
(vii) Indebtedness incurred by the Borrower to the seller in
any Permitted Acquisition as part of the consideration therefor,
provided that such Indebtedness is unsecured and does not exceed in any
case 25% of the total consideration paid in connection with such
Permitted Acquisition.
(viii) subordinated unsecured indebtedness the terms
(including, without limitation, those with respect to amount, maturity,
amortization, interest rate, premiums, fees, covenants, subordination,
events of default and remedies) of which are acceptable to the Required
Lenders when issued, but in each case not any increase in the principal
amount thereof and not any refinancing, modification, refunding or
extension of maturity thereof, in whole or in part, unless such
refinancing, modification, refunding or extension is not materially
less favorable to the Borrower, including, without limitation, with
respect to amount, maturity, amortization, interest rate, premiums,
fees, covenants, subordination, events of default and remedies (such
Indebtedness being referred to herein as "PERMITTED ADDITIONAL
SUBORDINATED INDEBTEDNESS");
(ix) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
(x) Indebtedness constituting Contingent Obligations permitted
by Section 7.3(E);
(xi) Indebtedness arising from intercompany loans from the
Borrower to any Controlled Subsidiary or from any Subsidiary to the
Borrower or any Controlled Subsidiary, provided that if the Borrower is
the obligor on such Indebtedness, such Indebtedness shall be expressly
subordinate to the payment in full of the Secured Obligations;
(xii) guaranties by the Borrower of Indebtedness permitted to
be incurred by any Subsidiary or Indebtedness of any Person in which
the Borrower makes an Investment pursuant to Section 7.3(D)(viii);
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(xiii) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of its Subsidiaries
in the ordinary course of business;
(xiv) Indebtedness in addition to that referred to elsewhere
in this Section 7.3(A) in an amount not to exceed $10,000,000 at any
time; and
(xv) any other Indebtedness if, at the time such Indebtedness
is incurred, (1) no Default or Unmatured Default has occurred and is
continuing or would result from such incurrence and (2) the Borrower's
Fixed Charge Coverage Ratio, calculated on a pro forma basis, including
pro forma application of the proceeds of such Indebtedness, would be
greater than or equal to 2.50 to 1.00.
(B) Sales of Assets. Neither the Borrower nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) Permitted Receivables Transfers;
(iii) the disposition in the ordinary course of business of
Equipment or other assets that are obsolete, excess or no longer useful
in the Borrower's business;
(iv) transfers of assets between the Borrower and any
Controlled Subsidiary or between Controlled Subsidiaries of the
Borrower not otherwise prohibited by this Agreement;
(v) transfers of assets pursuant to Investments permitted by
Section 7.3(D) and Restricted Payments permitted by Section 7.3(F); and
(vi) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets, provided that any such transaction
(a) is for consideration consisting at least 80% of cash, (b) is for
not less than fair market value (as determined by the board of
directors of the Borrower in good faith, whose determination shall be
conclusive evidence thereof and shall be evidenced by a resolution of
such board of directors set forth in an Authorized Officer's
certificate delivered to the Agent), and (c) when combined with all
such other transactions pursuant to this clause (vi) (and clause (vii)
of Section 7.3(B) under the Original Credit Agreement) (each such
transaction being valued at book value) (i) during the immediately
preceding twelve-month period, represents the disposition of not
greater than ten percent (10.0%) of the Borrower's Consolidated Assets
at the end of the fiscal year immediately preceding that in which such
transaction is proposed to be entered into, and (ii) during the period
from the Original Closing Date to the date of such proposed
transaction, represents the disposition of not greater than twenty
percent (20.0%) of the Borrower's Consolidated
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Assets at the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into; provided,
notwithstanding anything to the contrary, Net Cash Proceeds in excess
of $5,000,000 during any 12-month period shall be required to be paid
as mandatory prepayments under the terms of Section 2.5.
Not less than five (5) Business Days prior to the consummation of any
transaction permitted by clause (vi) above, the Borrower shall deliver to the
Agent a certificate of an Authorized Officer certifying compliance with the
requirements of clause (vi) and showing in reasonable detail the calculations on
which such certification is based.
(C) Liens. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents or otherwise securing
the Secured Obligations;
(ii) Liens arising under the Receivables Purchase Documents;
(iii) Permitted Existing Liens;
(iv) Customary Permitted Liens;
(v) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject at
the time of the Borrower's acquisition thereof) securing Permitted
Purchase Money Indebtedness; provided that (a) such Liens shall not
apply to any property of the Borrower or its Subsidiaries other than
that purchased or subject to such Capitalized Lease; and (b) such Liens
shall secured Indebtedness which does not exceed the lower of the fair
market value on the date of purchase or the cost of the property so
purchased; and
(vi) Liens securing other obligations not exceeding $5,000,000
in the aggregate at any time outstanding.
In addition, neither the Borrower nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Agent for the benefit of itself and the Holders of
Secured Obligations, as additional collateral for the Obligations; provided that
any agreement, note, indenture or other instrument in connection with Permitted
Purchase Money Indebtedness (including Leases) may prohibit the creation of a
Lien in favor of the Agent for the benefit of itself and the Holders of the
Secured Obligations on the items of property obtained with the proceeds of such
Permitted Purchase Money Indebtedness.
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(D) Investments. Other than Investments permitted pursuant to paragraph
(G) below, neither the Borrower nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater
than the amount thereof on the Closing Date;
(iii) Investments in PRF required in connection with the
Receivables Purchase Documents;
(iv) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement (including settlements of litigation) of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(v) Investments consisting of deposit accounts maintained by
the Borrower in connection with its cash management system, provided
funds deposited in such deposit accounts are regularly transferred to
the Borrower's concentration account maintained, as of the date of this
Agreement with SunTrust Bank, Atlanta, or such other concentration
account as is established with the consent of the Agent, deposit
accounts maintained by the Mexican Subsidiaries in the ordinary course
of their business and deposit accounts maintained by the Borrower and
its Subsidiaries pursuant to the Receivables Purchase Documents;
(vi) Investments consisting of non-cash consideration from a
sale, assignment, transfer, lease, conveyance or other disposition of
property permitted by Section 7.3(B) (other than clause (v) thereof);
(vii) Investments consisting of intercompany loans from any
Subsidiary to the Borrower or any other Subsidiary permitted by Section
7.3(A)(xi);
(viii) Investments which do not constitute Acquisitions, made
in cash and consisting of at least thirty-five percent (35.0%) of the
Equity Interests in any Person having similar lines of business to
those of the Borrower, provided that the total amount of all such
Investments made after the Original Closing Date (including the amount
of all cash invested, the fair market value of assets or property
contributed and the principal amount of any Indebtedness guaranteed in
connection therewith, but excluding, to the extent that any such
Investment permitted hereunder shall be sold for cash, the lesser of
(x) the cash return of capital with respect to such Investment (net of
the cost of disposition) and (y) the initial amount of such Investment)
shall not exceed $25,000,000 during the term of this Agreement, that
such
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Investments shall not include any Investment in any of the Borrower's
Affiliates located in the United Kingdom and that all such Equity
Interests are pledged to the Agent as Collateral;
(ix) Investments in any Controlled Subsidiary of the Borrower;
(x) Investments constituting Permitted Acquisitions;
(xi) Restricted Investments permitted by Section 7.3(F)(v);
and
(xii) Investments in addition to those referred to elsewhere
in this Section 7.3(D) in an amount not to exceed $5,000,000 in the
aggregate at any time outstanding;
provided, however, that the Investments described in clauses (viii), (x) and
(xi) above shall not be permitted if either a Default or an Unmatured Default
shall have occurred and be continuing on the date thereof or would result
therefrom.
(E) Contingent Obligations. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, and indemnities, not relating to Indebtedness of any Person, which
have been or are undertaken or made in the ordinary course of business and not
for the benefit of or in favor of an Affiliate of the Borrower or such
Subsidiary; (iv) Contingent Obligations arising under the Transaction Documents;
(v) guaranties of Indebtedness permitted by Section 7.3(A); (vi) additional
Contingent Obligations which do not exceed $5,000,000 in the aggregate at any
time; and (vii) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the ordinary
course of business.
(F) Restricted Payments. Neither the Borrower nor any of its
Subsidiaries shall declare or make any Restricted Payment, except:
(i) the defeasance, redemption or repurchase of any
Indebtedness with the Net Cash Proceeds of Permitted Refinancing
Indebtedness;
(ii) mandatory payments of interest, principal or premium, if
any, due on the Indebtedness in accordance with mandatory redemption or
repayment provisions in effect with respect to such Indebtedness as of
the Original Closing Date, unless in each case such payments are
prohibited by the terms of such Indebtedness or the subordination
provisions applicable thereto;
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(iii) the payment of dividends to Enterprises to pay
administrative expenses of Enterprises and/or Holdings in an aggregate
amount not to exceed $200,000 in any twelve-month period;
(iv) in connection with the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the
Borrower owned by any member of the Borrower's management, pursuant to
a management equity subscription agreement or stock option agreement in
effect on the Original Closing Date or entered into after the Original
Closing Date with members of the management of any Person acquired
after the Original Closing Date, or the repurchase of Equity Interests
of the Borrower or any Subsidiary of the Borrower held by employees,
former employees, directors or former directors pursuant to the terms
of agreements (including employment agreements) approved by the
Borrower's board of directors, provided, that the aggregate purchase
price of all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $3,000,000 during any twelve-month period or
$10,000,000 in the aggregate since the Original Closing Date; and
(v) additional Restricted Payments (including Restricted
Investments) which do not exceed, for the period commencing with the
Borrower's fiscal quarter ending September 28, 1996, and ending on the
last day of the last quarter ending prior to such Restricted Payment,
the sum of (a) fifty percent (50.0%) of Net Income for such period (or,
if Net Income for such period is a deficit, less 100% of such deficit),
(b) the aggregate Net Cash Proceeds from the sale or issuance of Equity
Interests (other than Disqualified Stock) of the Borrower for such
period, (c) to the extent that any Restricted Investment permitted
hereunder and made after the Original Closing Date shall be sold for
cash during such period, the lesser of (x) the cash return of capital
with respect to such Restricted Investment (net of the cost of
disposition) and (y) the initial amount of such Restricted Investment,
and (d) $10,000,000;
provided, however, that the Restricted Payments described in clause (v) above
shall not be permitted (1) if either a Default or an Unmatured Default shall
have occurred and be continuing at the date of declaration or payment thereof or
would result therefrom, (2) unless, after giving effect to such Restricted
Payment, the Borrower could incur $1 of additional Indebtedness pursuant to
Section 7.3(A)(xv), or (3) if such Restricted Payment constitutes an Investment
in any of the Borrower's Affiliates located in the United Kingdom.
(G) Conduct of Business; Subsidiaries; Acquisitions. (i) Neither the
Borrower nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Borrower on the date hereof and any business or
activities which are substantially similar, related or incidental thereto. IHC
shall not, either directly or indirectly, engage in any operating business
enterprise other than the operation of the Elgin, Illinois plant (effected
through the Borrower for the benefit of IHC), incur any Indebtedness or other
liabilities other than pursuant to the IHC Agreements and the Tax Allocation
Agreement, or own any real or personal property other than the IHC Assets.
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(ii) The Borrower may create, acquire and/or capitalize any
Subsidiary (a "NEW SUBSIDIARY") after the date hereof pursuant to any
transaction that is permitted by or not otherwise prohibited by this Agreement,
provided that (1) the assets of all of the Borrower's New Subsidiaries shall at
no time exceed in the aggregate ten percent (10.0%) of the Borrower's
Consolidated Assets or constitute assets that in the aggregate contribute more
than ten percent (10.0%) of the Borrower's EBITDA, (2) each New Subsidiary shall
execute a guaranty of the Obligations and grant to the Agent, for the benefit of
Holders of Secured Obligations, Liens on all of its assets, pursuant to
documentation in form and substance satisfactory to the Agent, and (3) all of
the Equity Interests in each New Subsidiary owned by the Borrower or any other
Subsidiary shall be pledged to the Agent, for the benefit of Holders of Secured
Obligations, pursuant to documentation in form and substance satisfactory to the
Agent.
(iii) The Borrower shall not make any Acquisitions, other than
Acquisitions meeting the following requirements (each such Acquisition
constituting a "PERMITTED ACQUISITION"):
(1) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(2) in the case of an Acquisition of Equity Interests of an
entity, such Acquisition shall be of at least ninety percent (90%) of
the Equity Interests of such entity and in the case of an Acquisition
of assets, such Acquisition shall be of at least a majority of the
assets of the target entity and the purchase is consummated pursuant to
a negotiated acquisition agreement on a non-hostile basis;
(3) the businesses being acquired shall be substantially
similar, related or incidental to the businesses or activities engaged
in by the Borrower on the Closing Date, but shall not, in any event,
constitute an Acquisition of any of the Borrower's Affiliates in the
United Kingdom;
(4) the aggregate purchase price of all Acquisitions made in
any 12-month period shall not exceed $10,000,000; and
(5) prior to each such Acquisition, the Borrower shall deliver
to the Agent and the Lenders a certificate from one of the Authorized
Officers, demonstrating to the reasonable satisfaction of the Agent and
the Required Lenders that after giving effect to such Acquisition and
the incurrence of any Indebtedness permitted by Section 7.3(A) in
connection therewith, on a pro forma basis using historical audited and
reviewed unaudited financial statements obtained from the seller,
broken down by fiscal quarter in the Borrower's reasonable judgment, as
if the Acquisition and such incurrence of Indebtedness had occurred on
the first day of the twelve-month period ending on the last day of the
Borrower's most recently completed fiscal quarter, the Borrower would
have had a Fixed Charge Coverage Ratio for
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such four fiscal quarters of greater than 2.75 to 1.0, and a Leverage
Ratio for such four fiscal quarters of less than 3.00 to 1.0.
(H) Transactions with Shareholders and Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly (i) except as permitted
in Section 7.3(F), pay any management fees or other similar fees or compensation
to Enterprises, Holdings, Management or any other holder or holders of the
Borrower's, Enterprises' or Holdings' equity securities, other than wages,
salaries, compensation arrangements and bonuses of employees who are also
stockholders of the Borrower in the ordinary course and consistent with past
practices or (ii) enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service, but excluding transactions described in clause (i)
above) with any holder or holders of any of the Equity Interests of Holdings,
Enterprises or the Borrower, or with any Affiliate of the Borrower which is not
its Controlled Subsidiary, on terms that are less favorable to the Borrower or
any of its Subsidiaries, as applicable, than those that might be obtained in an
arm's length transaction at the time from Persons who are not such a holder or
Affiliate, except for (a) Permitted Receivables Transfers, (b) transactions
pursuant to the Tax Allocation Agreement, and (c) Restricted Payments permitted
by Section 7.3(F).
(I) Restriction on Fundamental Changes. Neither the Borrower nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or property, whether now or hereafter acquired, except (a)
transactions permitted under Sections 7.3(B) or 7.3(G) and (b) the merger of any
Subsidiary into the Borrower or into a Controlled Subsidiary.
(J) Sales and Leasebacks. Neither the Borrower nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any property (whether real or personal or mixed) (i) which
it or one of its Subsidiaries sold or transferred or is to sell or transfer to
any other Person, or (ii) which it or one of its Subsidiaries intends to use for
substantially the same purposes as any other property which has been or is to be
sold or transferred by it or one of its Subsidiaries to any other Person in
connection with such lease, unless in either case the sale involved is not
prohibited under Section 7.3(B) and the lease involved is not prohibited under
Section 7.3(A). Transactions or payments pursuant to the Tax Incentive Program
shall not be considered sale and leaseback transactions hereunder.
(K) Margin Regulations. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
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(L) ERISA. To the extent that any of the following actions or
omissions, individually or in the aggregate, could reasonably be expected to
subject the Borrower or any member of the Controlled Group to liability in
excess of $1,000,000, the Borrower shall not:
(i) engage, or permit any of its Subsidiaries to engage, in
any prohibited transaction described in Sections 406 of ERISA or 4975
of the Code for which a statutory or class exemption is not available
or a private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code) with respect to
any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any liability of the
Borrower or any Controlled Group member under Title IV of ERISA;
(v) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any Controlled Group member
may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Code on or before the due date for such installment
or other payment; or
(vii) amend, or permit any Controlled Group member to amend, a
Plan resulting in an increase in current liability for the plan year
such that the Borrower or any Controlled Group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
(M) Issuance of Disqualified Stock. Neither the Borrower nor any of its
Subsidiaries shall issue any Disqualified Stock other than (i) the issuance of
Disqualified Stock having a liquidation preference in an aggregate amount not in
excess of the principal amount of Indebtedness that the Borrower and its
Subsidiaries could incur on the date of such issuance pursuant to Section
7.3(A)(ii) or (viii) or (ii) pursuant to an exchange or conversion of then
outstanding Indebtedness of the Borrower or any of its Subsidiaries for or into
Disqualified Stock, provided that, to the extent that the aggregate amount of
the liquidation preference of such Disqualified Stock exceeds the principal
amount of the Indebtedness so exchanged or converted, such Disqualified Stock
could be issued pursuant to clause (i) above. All such issued and outstanding
Disqualified Stock shall be treated as Indebtedness for all purposes of this
Agreement (and as funded Indebtedness for purposes of Section
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7.1(G)), and the amount of such deemed Indebtedness shall be the aggregate
amount of the liquidation preference of such Disqualified Stock. The Borrower
shall not permit any Subsidiary to issue any shares of preferred stock.
(N) Corporate Documents. Neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents or the Tax
Allocation Agreement as in effect on the date hereof in any manner materially
adverse to the ability of the Borrower or any of its Subsidiaries to perform
their respective obligations under the Loan Documents, without the prior written
consent of the Required Lenders.
(O) Fiscal Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on the last Saturday of June of
each calendar year.
(P) Subsidiary Covenants. Except as required in connection with the
Receivables Purchase Documents, the Borrower will not, and will not permit any
Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to pay
dividends or make any other distribution on its stock, or make any other
Restricted Payment, pay any Indebtedness or other Obligation owed to the
Borrower or any other Subsidiary, make loans or advances or other Investments in
the Borrower or any other Subsidiary, or sell, transfer or otherwise convey any
of its property to the Borrower or any other Subsidiary.
(Q) Hedging Obligations. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower pursuant to
which the Borrower has hedged its actual interest rate, foreign currency or
commodity exposure. Such permitted hedging agreements entered into by the
Borrower and any Lender or any affiliate of any Lender to hedge floating
interest rate risk are sometimes referred to herein as "HEDGING AGREEMENTS."
(R) Other Indebtedness. The Borrower shall not amend, modify or
supplement, or permit any Subsidiary to amend, modify or supplement (or consent
to any amendment, modification or supplement of), any document, agreement or
instrument evidencing the Senior Notes or any Subordinated Indebtedness (or any
replacements, substitutions or renewals thereof) or pursuant to which the Senior
Notes or any Subordinated Indebtedness is issued where such amendment,
modification or supplement provides for the following or which has any of the
following effects:
(i) increases the overall principal amount of any such
Indebtedness or increases the amount of any single scheduled installment of
principal or interest;
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(ii) shortens or accelerates the date upon which any
installment of principal or interest becomes due or adds any additional
mandatory redemption provisions;
(iii) shortens the final maturity date of such Indebtedness or
otherwise accelerates the amortization schedule with respect to such
Indebtedness;
(iv) increases the rate of interest accruing on such
Indebtedness;
(v) provides for the payment of additional fees or increases
existing fees;
(vi) amends or modifies any financial or negative covenant (or
covenant which prohibits or restricts the Borrower or a Subsidiary of the
Borrower from taking certain actions) in a manner which is more onerous or more
restrictive to the Borrower (or any Subsidiary of the Borrower) or which is
otherwise materially adverse to the Borrower and/or the Lenders or, in the case
of adding covenants, which places additional restrictions on the Borrower (or a
Subsidiary of the Borrower) or which requires the Borrower or any such
Subsidiary to comply with more restrictive financial ratios or which requires
the Borrower to better its financial performance from that set forth in the
existing financial covenants;
(vii) amends, modifies or adds any affirmative covenant in a
manner which, when taken as a whole, is materially adverse to the Borrower
and/or the Lenders;
(viii) in the case of any Subordinated Indebtedness, amends,
modifies or supplements the subordination provisions thereof; or
(ix) in the case of the Subordinated Notes or the Subordinated
Note Agreement, amends or modifies the limitations on transfer provided therein.
(S) Change of Deposit Accounts. The Borrower shall not, and shall not
permit any Subsidiary (other than PRF) to, establish or maintain any deposit
account with any bank or other financial institution other than those which have
entered into a Collection Account Agreement in form and substance acceptable to
the Agent, except the deposit accounts with Fleet Bank described on Schedule 4
to the Security Agreement.
(T) Amendment of Receivables Purchase Documents. The Borrower shall
not, and shall not permit any of its Subsidiaries to, agree to or enter into any
amendment, restatement or other modification of the Receivables Purchase
Documents, or substitute or replace the Receivables Purchase Documents with
another receivables securitization facility, that would (i) increase the maximum
amount of Indebtedness permitted to be incurred thereunder, unless the Borrower
concurrently reduces the Aggregate Revolving Loan Commitment pursuant to Section
2.6 by an amount equal to or greater than the amount of such increase; (ii)
accelerate any scheduled amortization date; (iii) increase the recourse
obligations of the Borrower or any of its Subsidiaries
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(other than PRF) in any material respect; (iv) provide for an "Event of
Default," "Termination Event," "Early Amortization Event," "Servicer Default" or
other similar event upon the occurrence of a Default or Unmatured Default
hereunder; (v) impose net worth covenants for PRF that are materially more
stringent than those in existence on the Original Closing Date; (vi) materially
decrease the cash consideration to be paid to PRF or the Borrower on account of
any Permitted Receivables Transfers; or (vii) materially increase the amount of
discount, yield or interest payable thereunder.
7.4 Financial Covenants. The Borrower shall comply with the
following:
(A) Fixed Charge Coverage Ratio. The Borrower shall maintain a ratio
("FIXED CHARGE COVERAGE RATIO") of EBITDA to Interest Expense of at least the
ratio set forth below at the end of each fiscal quarter ending in the periods
set forth in the table below:
<TABLE>
<CAPTION>
APPLICABLE PERIOD RATIO
<S> <C>
Closing Date through June 30, 2000 1.75 to 1.00
July 1, 2000 through June 30, 2001 2.00 to 1.00
July 1, 2001 through June 30, 2002 2.25 to 1.00
July 1, 2002 and thereafter 2.50 to 1.00
</TABLE>
In each case the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day,
calculated, with respect to Permitted Acquisitions, on a pro forma basis using
historical audited and reviewed unaudited financial statements obtained from the
seller, broken down by fiscal quarter in the Borrower's reasonable judgment.
(B) Total Debt to EBITDA Ratio. The Borrower shall not permit the ratio
(the "LEVERAGE RATIO") of Total Debt to EBITDA to be greater than the ratio set
forth in the table below under the column entitled "Default Ratio" at the end of
each fiscal quarter ending in the periods set forth in the table below:
<TABLE>
<CAPTION>
APPLICABLE PERIOD DEFAULT RATIO TRIGGER RATIO
<S> <C> <C>
Closing Date through December 31, 1999 5.50 to 1.00 5.00 to 1.00
January 1, 2000 through June 30, 2000 5.25 to 1.00 4.75 to 1.00
</TABLE>
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<TABLE>
<CAPTION>
APPLICABLE PERIOD DEFAULT RATIO TRIGGER RATIO
<S> <C> <C>
July 1, 2000 through June 30, 2001 5.00 to 1.00 4.50 to 1.00
July 1, 2001 through June 30, 2002 4.75 to 1.00 4.25 to 1.00
July 1, 2002 and thereafter 4.50 to 1.00 4.00 to 1.00
</TABLE>
In the event that the Leverage Ratio at the end of any fiscal quarter ending
after March 31, 1999 shall be greater than the ratio set forth above under the
column entitled "Trigger Ratio" for such fiscal quarter, the Required Lenders
shall have the right to require that IHC (i) execute a guaranty of the
Obligations in form and substance satisfactory to the Required Lenders, and (ii)
grant to the Agent, for the benefit of the Holders of Secured Obligations, Liens
on all of the IHC Assets, pursuant to documentation in form and substance
satisfactory to the Required Lenders. If, upon such demand by the Required
Lenders, the Borrower shall elect to merge IHC into the Borrower, such Liens
shall thereupon be granted by the Borrower. The Leverage Ratio shall be
calculated, in each case, determined as of the last day of each fiscal quarter
based upon (a) for Total Debt, Total Debt as of the last day of each such fiscal
quarter; and (b) for EBITDA, the actual amount for the four-quarter period
ending on such day, calculated, with respect to Permitted Acquisitions, on a pro
forma basis using historical audited and reviewed unaudited financial statements
obtained from the seller, broken down by fiscal quarter in the Borrower's
reasonable judgment.
(C) Capital Expenditures. The Borrower will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, for Capital Expenditures
during the periods set forth in the table below, on a non-cumulative basis
except as provided herein, in the aggregate for the Borrower and its
Subsidiaries, in excess of the corresponding amounts set forth in the table
below for such period:
<TABLE>
<CAPTION>
APPLICABLE PERIOD MAXIMUM
AMOUNT
<S> <C>
Closing Date through June 30, 1999 $47,000,000
July 1, 1999 through June 30, 2000 $48,000,000
July 1, 2000 through June 30, 2001 $49,000,000
July 1, 2001 through June 30, 2002 $50,000,000
July 1, 2002 through June 30, 2003 $50,000,000
July 1, 2003 through March 31, 2004 $50,000,000
</TABLE>
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In the event that for any of the foregoing periods the actual amount of Capital
Expenditures for the Borrower and its Subsidiaries shall be less than the
applicable limitation amount set forth above (plus any increase therein pursuant
to this sentence), an amount (the "CARRY-OVER AMOUNT") equal to fifty percent
(50.0%) of (a) permitted Capital Expenditures minus (b) actual amount of Capital
Expenditures for such period, shall be added to the permitted Capital
Expenditures for the next succeeding fiscal year; provided, that the Carry-Over
Amount shall not exceed $25,000,000 in any fiscal year.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall (i) fail to
pay when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within five (5) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) Section 7.1(C) through and including 7.1(J), 7.2(B) or
7.2(F) and such failure shall continue unremedied for fifteen (15)
days;
(ii) Sections 7.1(A), 7.1(B), 7.2(A), 7.2(C), 7.2(D), 7.2(E)
and 7.2(G) through and including 7.2(L) and such failure shall continue
unremedied for five (5) Business Days; or
(iii) Section 7.3 or 7.4.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower to the Agent or any Lender herein
or by Holdings, Enterprises, the Borrower or any of its Subsidiaries in any of
the other Loan Documents or in any statement or certificate at any time given by
any such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made (or deemed
made).
(d) Other Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (a), (b) or (c) of this Section 8.1), or the Borrower or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the earlier of (i) notice from the Agent or (ii) the
date on which any member of Management shall first have actual knowledge
thereof.
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(e) Default as to Other Indebtedness. The Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to any Indebtedness (other than the Obligations and the Indebtedness under the
Receivables Purchase Documents) the aggregate outstanding principal amount of
which Indebtedness is in excess of $5,000,000; or any breach, default or event
of default shall occur, or any other condition shall exist under any instrument,
agreement or indenture pertaining to any such Indebtedness, if the effect
thereof is to cause an acceleration, mandatory redemption, a requirement that
the Borrower offer to purchase such Indebtedness or other required repurchase of
such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against Holdings,
Enterprises, the Borrower or any of the Borrower's Subsidiaries and the
petition shall not be dismissed, stayed, bonded or discharged within
sixty (60) days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for relief
in respect of Holdings, Enterprises, the Borrower or any of the
Borrower's Subsidiaries in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over
Holdings, Enterprises, the Borrower or any of the Borrower's
Subsidiaries or over all or a substantial part of the property of
Holdings, Enterprises, the Borrower or any of the Borrower's
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of Holdings, Enterprises, the Borrower or any of the
Borrower's Subsidiaries or of all or a substantial part of the property
of Holdings, Enterprises, the Borrower or any of the Borrower's
Subsidiaries shall be appointed or a warrant of attachment, execution
or similar process against any substantial part of the property of
Holdings, Enterprises, the Borrower or any of the Borrower's
Subsidiaries shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry,
appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Holdings,
Enterprises, the Borrower or any of the Borrower's Subsidiaries shall (i)
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) consent to the
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entry of an order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, (iii) consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property, (iv) make any assignment for the
benefit of creditors or (v) take any corporate action to authorize any of the
foregoing.
(h) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $5,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(i) Dissolution. Any order, judgment or decree shall be entered against
the Borrower decreeing its involuntary dissolution or split up and such order
shall remain undischarged and unstayed for a period in excess of sixty (60)
days; or the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(j) Loan Documents; Failure of Security. At any time, for any reason,
(i) any Loan Document as a whole that materially affects the ability of the
Agent, or any of the Lenders to enforce the Obligations or enforce their rights
against the Collateral ceases to be in full force and effect or the Borrower or
any of the Borrower's Subsidiaries party thereto seeks to repudiate its
obligations thereunder and the Liens intended to be created thereby are, or the
Borrower or any such Subsidiary seeks to render such Liens, invalid or
unperfected, or (ii) any Lien on Collateral in favor of the Agent contemplated
by the Loan Documents shall, at any time, for any reason, be invalidated or
otherwise cease to be in full force and effect, or such Lien shall not have the
priority contemplated by this Agreement or the Loan Documents.
(k) Termination Event. Any Termination Event occurs which could
reasonably be expected to subject the Borrower to liability in excess of
$5,000,000.
(l) Waiver of Minimum Funding Standard. The plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the substantial business
hardship upon which the application for the waiver is based could reasonably be
expected to subject either the Borrower or any Controlled Group member to
liability in excess of $5,000,000.
(m) Change of Control. A Change of Control shall occur.
(n) Hedging Agreements or Cash Management Agreements. Nonpayment by the
Borrower of any obligation under any Hedging Agreement or Cash Management
Agreement or the breach by
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the Borrower of any term, provision or condition contained in any such Hedging
Agreement or Cash Management Agreement.
(o) Environmental Matters. The Borrower or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to (i) the
Release by the Borrower or any of its Subsidiaries of any Contaminant into the
environment, (ii) the liability of the Borrower or any of its Subsidiaries
arising from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries, which, in any
case, has subjected or is reasonably likely to subject the Borrower to liability
in excess of $5,000,000.
(p) Guarantor Default or Revocation. There shall occur a default under
any of the Parent Agreements or Enterprises or Holdings shall terminate or
revoke any of their respective obligations thereunder, or any other guarantor of
the Obligations shall terminate or revoke any of its obligations under the
applicable guarantee agreement or breach any of the terms of such guarantee
agreement.
(q) Failure of Subordination. The subordination provisions of the
documents and instruments evidencing any Subordinated Indebtedness shall, at any
time, be invalidated or otherwise cease to be in full force and effect.
(r) Receivables Purchase Documents. An "Event of Default," "Termination
Event," "Early Amortization Event," "Servicer Default" or similar event shall
occur resulting in the termination of purchases and/or funding under the
Receivables Purchase Documents, or the Borrower or a Subsidiary of the Borrower
shall cease to act as "Servicer" thereunder.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS
AND REMEDIES
9.1 Termination of Commitments; Acceleration. If any Default described
in Section 8.1(f) or 8.1(g) occurs with respect to the Borrower, the obligations
of the Lenders to make Loans hereunder and the obligation of the Agent to issue
Letters of Credit hereunder shall automatically terminate and the Obligations
shall immediately become due and payable without any election or action on the
part of the Agent or any Lender. If any other Default occurs, (a) the Required
Revolving Loan Lenders may terminate or suspend the obligations of the Lenders
with Revolving Loan Commitments to make Loans hereunder and the obligation of
the Agent to issue Letters of Credit hereunder, and/or (b) the Required Lenders
may declare the Obligations to be due and payable,
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whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
expressly waives.
9.2 Defaulting Lender. In the event that any Lender fails to fund its
Revolving Loan Pro Rata Share of any Advance requested or deemed requested by
the Borrower, which such Lender is obligated to fund under the terms of this
Agreement (the funded portion of such Advance being hereinafter referred to as a
"NON PRO RATA LOAN"), until the earlier of such Lender's cure of such failure
and the termination of the Revolving Loan Commitments, the proceeds of all
amounts thereafter repaid to the Agent by the Borrower and otherwise required to
be applied to such Lender's share of all other Obligations pursuant to the terms
of this Agreement shall be advanced to the Borrower by the Agent on behalf of
such Lender to cure, in full or in part, such failure by such Lender, but shall
nevertheless be deemed to have been paid to such Lender in satisfaction of such
other Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.10;
(ii) any such Lender shall be deemed to have cured its failure
to fund its Revolving Loan Pro Rata Share of any Advance at such time,
within five (5) Business Days after such failure, as an amount equal to
such Lender's original Revolving Loan Pro Rata Share of the requested
principal portion of such Advance is fully funded to the Borrower,
whether made by such Lender itself or by operation of the terms of this
Section 9.2, and whether or not the Non Pro Rata Loan with respect
thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Revolving Loan Pro Rata
Share of any Advance ("CURE LOANS") shall bear interest at the rate
applicable to Floating Rate Loans in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were
Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied to
the outstanding Floating Rate Loans shall be applied first, ratably to
all Floating Rate Loans constituting Non Pro Rata Loans, second,
ratably to Floating Rate Loans other than those constituting Non Pro
Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
constituting Cure Loans;
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(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Revolving Loan Pro Rata Share of any
Advance and the termination of the Revolving Loan Commitments, the term
"Required Lenders" and "Required Revolving Loan Lenders" for purposes
of this Agreement shall mean Lenders (excluding all Lenders whose
failure to fund their respective Revolving Loan Pro Rata Shares of such
Advance have not been so cured) whose Pro Rata Shares or Revolving Loan
Pro Rata Shares, as applicable, represent at least sixty-six and two
thirds percent (66-2/3%) of the aggregate Pro Rata Shares of such
Lenders or Revolving Loan Pro Rata Shares of such Lenders, as
applicable; and
(vi) for so long as and until any such Lender's failure to
fund its Revolving Loan Pro Rata Share of any Advance is cured in
accordance with Section 9.2(ii), (A) such Lender shall not be entitled
to any commitment fees with respect to its Revolving Loan Commitment
and (B) such Lender shall not be entitled to any letter of credit fees,
which commitment fees and letter of credit fees shall accrue in favor
of the Lenders which have funded their respective Revolving Loan Pro
Rata Share of such requested Advance, shall be allocated among such
performing Lenders ratably based upon their relative Revolving Loan
Commitments, and shall be calculated based upon the average amount by
which the aggregate Revolving Loan Commitments of such performing
Lenders exceeds the sum of (I) the outstanding principal amount of the
Loans owing to such performing Lenders, plus (II) the outstanding
Reimbursement Obligations owing to such performing Lenders, plus (III)
the aggregate participation interests of such performing Lenders
arising pursuant to Section 3.6 with respect to undrawn and outstanding
Letters of Credit.
9.3 Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date,
Tranche A Term Loan Termination Date or Tranche B Term Loan Termination
Date or any other date fixed for any payment of principal of, or
interest on, the Loans, the Reimbursement Obligations or any fees or
other amounts payable to such Lender (except with respect to (a) any
modifications of the provisions relating to amounts, timing or
application of prepayment of the Loans and other Obligations, which
modifications shall require the approval only of the Required Lenders;
provided, however, if such modifications would affect the order of
application of any mandatory prepayments as between the Tranche A Term
Loans and the Tranche B Term Loans, such modifications shall also
require the approval of the affected Lenders with Tranche
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A Pro Rata Shares or Tranche B Pro Rata Shares, as applicable, equal to
or greater than sixty-six and two-thirds percent (66-2/3%); and (b) a
waiver of the application of the default rate of interest pursuant to
Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations or reduce the rate or extend the time for payment of
interest thereon or any fees or other amounts payable to such Lender
(other than as a result of a change in the definition of Leverage Ratio
or any of the components thereof or the method of calculation thereof).
(iii) Reduce the percentage specified in the definition of
Required Lenders or Required Revolving Loan Lenders or any other
percentage of Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definitions of
"Tranche A Pro Rata Share," "Tranche B Pro Rata Share," "Revolving Loan
Pro Rata Share" or "Pro Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment,
Tranche A Term Loan Commitment and/or Tranche B Term Loan Commitment of
any Lender hereunder or increase any Lender's Tranche A Pro Rata Share,
Tranche B Pro Rata Share, Revolving Loan Pro Rata Share or Pro Rata
Share.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend this Section 9.3.
(vii) Release any of the Parent Agreements or all or
substantially all of the Collateral.
No amendment of any provision of this Agreement relating to (a) the Agent shall
be effective without the written consent of the Agent or (b) Swing Line Loans
shall be effective without the written consent of the Swing Line Bank. The Agent
may waive payment of the fee required under Section 13.3(B) without obtaining
the consent of any of the Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 9.3, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be
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cumulative and all shall be available to the Agent and the Lenders until the
Secured Obligations have been paid in full.
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. The Borrower agrees that the Agent
may, but shall have no obligation to (i) at any time, pay or discharge taxes,
liens, security interests or other encumbrances levied or placed on or
threatened against any Collateral and (ii) after the occurrence and during the
continuance of a Default make any other payment or perform any act required of
the Borrower under any Loan Document or take any other action which the Agent in
its discretion deems necessary or desirable to protect or preserve the
Collateral, including, without limitation, any action to (y) effect any repairs
or obtain any insurance called for by the terms of any of the Loan Documents and
to pay all or any part of the premiums therefor and the costs thereof and (z)
pay any rents payable by the Borrower which are more than 30 days past due, or
as to which the landlord has given notice of termination, under any lease. The
Agent shall use its best efforts to give the Borrower notice of any action taken
under this Section 10.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
Borrower's obligations in respect thereof. The Borrower agrees to pay the Agent,
upon demand, the principal amount of all funds advanced by the Agent under this
Section 10.3, together with interest thereon at the rate from time to time
applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the Borrower fails to
make payment in respect of any such advance under this Section 10.3 within one
(1) Business Day after the date the Borrower receives written demand therefor
from the Agent, the Agent shall promptly notify each Lender and each Lender
agrees that it shall thereupon make available to the Agent, in Dollars in
immediately available funds, the amount equal to such Lender's Pro Rata Share of
such advance. If such funds are not made available to the Agent by such Lender
within one (1) Business Day after the Agent's demand therefor, the Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Agent its Pro Rata
Share of any such unreimbursed advance under this Section 10.3 shall neither
relieve any other Lender of its obligation hereunder to make available to the
Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any
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other Lender to make such payment to the Agent. All outstanding principal of,
and interest on, advances made under this Section 10.3 shall constitute
Obligations secured by the Collateral until paid in full by the Borrower.
10.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
10.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Lead Arranger shall enjoy the benefits of the
provisions of Sections 10.7, 10.11 and 11.10 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its own
behalf and in its own name to the same extent as if it were a party to this
Agreement.
10.7 Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Agent and the Lead
Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Agent and the Lead Arranger, which attorneys and paralegals
may be employees of the Agent or the Lead Arranger) paid or incurred by the
Agent or the Lead Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Agent, the Lead Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' and paralegals' fees and time
charges of attorneys and paralegals for the Agent, the Lead Arranger and the
Lenders, which attorneys and paralegals may be employees of the Agent, the Lead
Arranger or the Lenders) paid or incurred by the Agent, the Lead Arranger or any
Lender in connection with the collection of the Obligations and enforcement
(whether by legal proceedings, negotiation or otherwise) of the Loan Documents.
Agent shall provide the Borrower with a detailed statement of all reimbursements
requested under this Section 10.7(A).
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(B) Indemnity. The Borrower further agrees to defend, protect,
indemnify, and hold harmless the Agent, the Lead Arranger and each and all of
the Lenders and each of their respective Affiliates, and each of such Agent's,
Lead Arranger's, Lender's, or Affiliate's respective officers, directors,
employees, attorneys and agents (including, without limitation, those retained
in connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any of the
Transaction Documents, or any act, event or transaction related or
attendant thereto, the making of the Loans, and the issuance of and
participation in Letters of Credit hereunder, the management of such
Loans or Letters of Credit, the use or intended use of the proceeds of
the Loans or Letters of Credit hereunder, or any of the other
transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of Holdings, Enterprises, the Borrower, its Subsidiaries or
any of their respective predecessors in interest, or, the past, present
or future environmental, health or safety condition of any respective
property of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from (y) a dispute among the Lenders or a dispute between any Lender and
the Agent or the Lead Arranger, or (z) the willful misconduct or gross
negligence of such Indemnitee or breach of contract by such Indemnitee with
respect to the Loan Documents, in each case, as determined by the final
non-appealed judgment of a court of competent jurisdiction. If the undertaking
to indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall contribute the maximum portion which it is permitted to pay and satisfy
under
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applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees. If any action, claim, investigation or other
proceeding is instituted or threatened against any Indemnitees in respect of
which indemnity may be sought hereunder, the Borrower shall be entitled to
assume the defense thereof with counsel selected by the Borrower (which counsel
shall be reasonably satisfactory to such Indemnitees) and after notice from the
Borrower to such Indemnitees of its election so to assume the defense thereof,
the Borrower will not be liable to such Indemnitees hereunder for any legal or
other expenses subsequently incurred by such Indemnitees in connection with the
defense thereof other than reasonable costs of investigation and such other
expenses as have been approved in advance; provided that (i) if counsel for such
Indemnitees determines in good faith that there is a conflict which requires
separate representation for the Borrower and such Indemnitees, or (ii) if the
Borrower fails to assume or proceed in a timely and reasonable manner with the
defense of such action or fails to employ counsel reasonably satisfactory to
such Indemnitees in any such action, then in either such event such Indemnitees
shall be entitled to select one primary counsel and, if necessary, one local
counsel, of their own choice to represent such Indemnitees and the Borrower
shall not, or no longer, be entitled to assume the defense thereof on behalf of
such Indemnitees and such Indemnitees shall be entitled to indemnification for
the reasonable expenses (including reasonable fees and expenses of such counsel)
to the extent provided above. Such counsel shall, to the fullest extent
consistent with its professional responsibilities, cooperate with the Borrower
and any counsel designated by the Borrower. Nothing contained herein shall
preclude any Indemnitees, at their own expense, from retaining additional
counsel to represent such Indemnitees in any action with respect to which
indemnity may be sought from the Borrower hereunder. The Borrower shall not be
liable under this Agreement for any settlement made by any Indemnitees without
the Borrower's prior written consent (which consent shall not be unreasonably
withheld), and the Borrower agrees to indemnify and hold harmless any
Indemnitees from and against any loss or liability by reason of the settlement
of any claim or action with the consent of the Borrower. The Borrower shall not
settle any claim or action without the prior written consent of the Indemnitees,
which consent shall not be unreasonably withheld.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower
further agrees to assert no claim against any of the Indemnitees on any theory
of liability for consequential, special, indirect, exemplary or punitive
damages. No settlement shall be entered into by Holdings, Enterprises, the
Borrower or any if its Subsidiaries with respect to any claim, litigation,
arbitration or other proceeding relating to or arising out of the transactions
evidenced by this Agreement, the other Loan Documents (whether or not the Agent
or any Lender or any Indemnitee is a party thereto) unless such settlement
releases all Indemnitees from any and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrower under this Section 10.7 shall survive the termination of this
Agreement.
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10.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders.
10.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
10.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11 Nonliability of Lenders. The relationship between the Borrower
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent, the Lead Arranger nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent, the Lead Arranger nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
10.12 GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF, THE LEAD ARRANGER AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING
AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, THE
LEAD ARRANGER, ANY LENDER, OR ANY OTHER HOLDER OF SECURED OBLIGATIONS ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT
LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY
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STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, THE LEAD
ARRANGER, ANY LENDER OR ANY HOLDER OF SECURED OBLIGATIONS SHALL HAVE THE RIGHT
TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO
ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2)
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE OBLIGATIONS, IRREVOCABLY
APPOINTS IHC, WHOSE ADDRESS IS 1400 ABBOTT DRIVE, ELGIN, ILLINOIS 60123, AS THE
BORROWER'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY
COURT. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR
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CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY
PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. THE BORROWER WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO REALIZE ON THE COLLATERAL (INCLUDING, WITHOUT LIMITATION, THE
REAL PROPERTY COLLATERAL) OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 10.13, WITH ITS COUNSEL.
10.14 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship. The First National Bank of
Chicago is appointed by the Lenders as the Agent hereunder and under each other
Loan Document, and each of the Lenders irrevocably authorizes the Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article XI. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Holder of Secured Obligations by reason of this
Agreement and that the Agent is merely acting as the representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not assume any fiduciary duties to any of the
Holders of Secured Obligations, (ii) is a "representative" of the Holders of
Secured Obligations within the meaning of Section 9-105 of the Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth
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in this Agreement and the other Loan Documents. Each of the Lenders, for itself
and on behalf of its affiliates as Holders of Secured Obligations, agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Holder of
Secured Obligations waives.
11.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties or fiduciary duties to the Lenders, or
any obligation to the Lenders to take any action hereunder or under any of the
other Loan Documents except any action specifically provided by the Loan
Documents required to be taken by the Agent.
11.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is found in a final judgment by a court of
competent jurisdiction to have arisen solely from (i) the gross negligence or
willful misconduct of such Person or (ii) breach of contract by such Person with
respect to the Loan Documents.
11.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc. Neither the Agent, the Lead Arranger nor any of their respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in Article V, except receipt of items required to be
delivered solely to the Agent; (iv) the existence or possible existence of any
Default, or (v) the validity, effectiveness or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith. Neither
the Agent nor the Lead Arranger shall be responsible to any Lender for any
recitals, statements, representations or warranties herein or in any of the
other Loan Documents, for the perfection or priority of any of the Liens on any
of the Collateral, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations,
Holdings, Enterprises, the Borrower or any of their respective Subsidiaries.
11.5 Action on Instructions of Lenders. The Agent in all cases, as
between the Agent and the Holders of Secured Obligations, shall be fully
protected in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and on all holders of Notes. As
between the Agent and the Holders of Secured Obligations, the Agent shall be
fully justified in failing or refusing to take any action
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hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
11.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as the Agent hereunder and under any other Loan Document by or through
employees, agents, and attorney-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
11.7 Reliance on Documents; Counsel. As between the Agent and the
Holders of Secured Obligations, the Agent shall be entitled to rely upon any
Note, notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may be
employees of the Agent.
11.8 The Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Pro Rata Shares (i) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from the gross negligence or willful misconduct of the Agent.
11.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
its Tranche A Term Loan Commitment, its Tranche B Term Loan Commitment, Loans
made by it and the Notes issued to it, the Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as through it were not the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which such Person is not
prohibited hereby from engaging with any other Person.
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11.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Lead Arranger or any
other Lender and based on the financial statements prepared by the Borrower and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Lead Arranger 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 and the other Loan Documents.
11.11 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, and the Agent may be
removed at any time with or without cause by written notice received by the
Agent from the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders, a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty days after the retiring Agent's giving notice of resignation, then
the retiring Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding anything herein to the contrary, so long as no
Default has occurred and is continuing, each such successor Agent shall be
subject to approval by the Borrower, which approval shall not be unreasonably
withheld. Such successor Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000. Upon the acceptance of any
appointment as the Agent hereunder by a successor Agent, such successor Agent
shall thereupon 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 and under the other Loan
Documents. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI 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
the Agent hereunder and under the other Loan Documents.
11.12 Collateral Documents. (a) Each Lender authorizes the Agent to
enter into each of the Collateral Documents to which it is a party and to take
all action contemplated by such documents. Each Lender agrees that no Holder of
Secured Obligations (other than the Agent) shall have the right individually to
seek to realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised solely by
the Agent for the benefit of the Holders of Secured Obligations upon the terms
of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by
any Person as collateral security for the Obligations, the Agent is hereby
authorized to execute and deliver on behalf of the Holders of Secured
Obligations any Loan Documents necessary or appropriate to grant and perfect a
Lien on such Collateral in favor of the Agent on behalf of the Holders of
Secured Obligations.
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(c) The Lenders hereby authorize the Agent, at its option and
in its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment and satisfaction
of all of the Obligations at any time arising under or in respect of this
Agreement or the Loan Documents or the transactions contemplated hereby or
thereby; (ii) as permitted or contemplated by, but only in accordance with, the
terms of the applicable Loan Document; or (iii) if approved, authorized or
ratified in writing by the Required Lenders, unless such release is required to
be approved by all of the Lenders hereunder. Upon request by the Agent at any
time, the Lenders will confirm in writing the Agent's authority to release
particular types or items of Collateral pursuant to this Section 11.12(c).
(d) Upon any sale or transfer of assets constituting
Collateral which is permitted pursuant to the terms of any Loan Document, or
consented to in writing by the Requisite Lenders or all of the Lenders, as
applicable, and upon at least five Business Days' prior written request by the
Borrower, the Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
Liens granted to the Agent for the benefit of the Holders of Secured Obligations
herein or pursuant hereto upon the Collateral that was sold or transferred;
provided, however, that (i) the Agent shall not be required to execute any such
document on terms which, in the Agent's opinion, would expose the Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall
not in any manner discharge, affect or impair the Secured Obligations or any
Liens upon (or obligations of the Borrower or any Subsidiary in respect of) all
interests retained by the Borrower or any Subsidiary, including (without
limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Collateral.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in
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proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 Application of Payments. Subject to the provisions of Section 9.2,
the Agent shall, unless otherwise specified at the direction of the Required
Lenders which direction shall be consistent with the last sentence of this
Section 12.3, apply all payments and prepayments in respect of any Obligations
and all proceeds of Collateral in the following order:
(A) first, to pay interest on and then principal of any
portion of the Loans which the Agent may have advanced on behalf of any
Lender for which the Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 10.3 for which the Agent has not then been
paid by the Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(D) fourth, to the ratable payment of Obligations in respect
of any fees, expenses, reimbursements or indemnities then due to the
Lenders and the issuer(s) of Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to the ratable payment of interest due in respect
of Loans (other than Swing Line Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans), Reimbursement
Obligations and Hedging Obligations under Hedging Agreements;
(I) ninth, to provide required cash collateral, if required
pursuant to Section 3.11 and
(J) tenth, to the ratable payment of all other Secured
Obligations, including, without limitation, Cash Management
Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans)
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shall be applied first, to repay outstanding Floating Rate Loans, and then to
repay outstanding Eurodollar Rate Loans with those Eurodollar Rate Loans which
have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods. The order of priority set forth in this Section
12.3 and the related provisions of this Agreement are set forth solely to
determine the rights and priorities of the Agent, the Lenders, the issuer(s) of
Letters of Credit and other Holders of Secured Obligations as among themselves.
The order of priority set forth in clauses (D) through (J) of this Section 12.3
may at any time and from time to time be changed by the Required Lenders without
necessity of notice to or consent of or approval by the Borrower, or any other
Person; provided, that the order of priority of payments in respect of Swing
Line Loans may be changed only with the prior written consent of the Swing Line
Bank. The order of priority set forth in clauses (A) through (C) of this Section
12.3 may be changed only with the prior written consent of the Agent.
12.4 Relations Among Lenders. Except with respect to the exercise of
set-off rights of any Lender in accordance with Section 12.1, the proceeds of
which are applied in accordance with this Agreement, and except as set forth in
the following sentence, each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrower or any other obligor
hereunder or with respect to any Collateral or Loan Document, without the prior
written consent of the Required Lenders or, as may be provided in this Agreement
or the other Loan Documents, at the direction of the Agent. The Lenders are not
partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in case of the Agent)
authorized to act for, any other Lender. Notwithstanding the foregoing, and
subject to Section 12.2, any Lender shall have the right to enforce on an
unsecured basis the payment of the principal of and interest on any Loan made by
it after the date such principal or interest has become due and payable pursuant
to the terms of this Agreement.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 13.3 hereof. Notwithstanding clause (ii) of this Section 13.1, any
Lender may at any time, without the consent of the Borrower or the Agent, assign
all or any portion of its rights under this Agreement and its Notes to a Federal
Reserve Bank; provided, however, that no such assignment shall release the
transferor Lender from its obligations hereunder. The Agent may treat the payee
of any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 hereof in the case of an assignment thereof or,
in the case of any other transfer, a written notice of the transfer is filed
with the Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority
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or consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
13.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 13.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Loan Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such Lender
under the Loan Documents on a pro rata or non-pro rata basis. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any such
Note for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents except that, for purposes of
Article IV hereof, the Participants shall be entitled to the same rights as if
they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment, or releases all or
substantially all of the Collateral, if any, securing any such Loan.
(C) Benefit of Setoff. The Borrower agrees that each Participant shall
be deemed to have the right of setoff provided in Section 12.1 hereof in respect
to its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 12.1 hereof with respect to the
amount of participating interests sold to each Participant except to the extent
such Participant exercises its right of setoff. The Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.1 hereof, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to be
shared in accordance with Section 12.2 as if each Participant were a Lender.
13.3 Assignments.
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(A) Permitted Assignments. Any Lender may, in accordance with
applicable law, at any time assign to one or more banks or other entities
("PURCHASERS") all or a portion of its rights and obligations under this
Agreement (including, without limitation, its Revolving Loan Commitment, all or
any part of the Loans owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit hereunder) in accordance with the provisions of this Section
13.3. Such assignment shall be substantially in the form of Exhibit E hereto and
shall not be permitted hereunder unless such assignment is either for all of
such Lender's rights and obligations under the Loan Documents, is to another
Lender or, without the prior written consent of the Agent, involves loans and
commitments in an aggregate amount of at least $5,000,000 (which minimum amount
may be waived by the Required Lenders after the occurrence of a Default or
Unmatured Event of Default). The consent of the Agent and, prior to the
occurrence of a Default or Unmatured Default, the Borrower (which consent, in
each such case, shall not be unreasonably withheld), shall be required prior to
an assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof.
(B) Effect; Effective Date. Upon (i) delivery to the Agent of a notice
of assignment, substantially in the form attached as Appendix I to Exhibit E
hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required by Section
13.3(A) hereof, and (ii) payment of a $3,500 fee by the assignee or the assignor
(as agreed) to the Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment, Loans and L/C Obligations under the applicable assignment agreement
are "plan assets" as defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser, if
not already a Lender, shall for all purposes be a Lender party to this Agreement
and any other Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Revolving Loan
Commitment, Loans and Letter of Credit participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3(B), the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Revolving Loan Commitment and their Term Loans, as adjusted pursuant to such
assignment.
(C) The Register. The Agent shall maintain at its address referred to
in Section 14.1 a copy of each assignment delivered to and accepted by it
pursuant to this Section 13.3 and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of and principal amount of the Loans owing to, each Lender from time
to time and
-111-
<PAGE> 119
whether such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 13.3. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower and each of its Subsidiaries, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
13.4 Confidentiality. Subject to Section 13.5, the Agent and the
Lenders and their respective representatives, consultants and advisors shall
hold all non-public information obtained pursuant to the requirements of this
Agreement and identified as such by the Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or representative thereof or pursuant to
legal process and shall require any such Transferee to agree (and require any of
its Transferees to agree in writing) to comply with this Section 13.4. In no
event shall the Agent or any Lender be obligated or required to return any
materials furnished by the Borrower; provided, however, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Borrower in connection with this Agreement.
13.5 Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Holdings, Enterprises, the Borrower and its Subsidiaries and the
Collateral; provided that prior to any such disclosure, such prospective
Transferee shall agree in writing to preserve in accordance with Section 13.4
the confidentiality of any confidential information described therein.
ARTICLE XIV: NOTICES
14.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties; provided, however,
that Borrowing Notices shall be delivered to the Agent at One First National
Plaza, Suite IL1-0634, Chicago, Illinois 60670-0634, Attention: Nanette Wilson,
Telephone No. 312-732-1221, Facsimile No. 312-732-4840. Any notice, if mailed
and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
-112-
<PAGE> 120
14.2 Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XV: COUNTERPARTS
15.1 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower, the Agent and the Lenders and each party has notified the Agent by
telex or telephone, that it has taken such action.
[Remainder of this page intentionally blank]
-113-
<PAGE> 121
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
PRINTPACK, INC., as the Borrower
By: /s/ R. Michael Hembree
------------------------------------
Name: R. Michael Hembree
Title: Vice President Finance and Administration
Address:
4335 Wendell Drive, S.W.
Atlanta, Georgia 30336-1622
Attention: R. Michael Hembree
Telephone No.: 404/691-2538 ext. 7287
Facsimile No.: 404/696-4868
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and as a Lender
By: /s/ Judith Cornwell
------------------------------------
Name: Judith Cornwell
Title: Vice President
Address:
One First National Plaza
Suite IL1-0324
Chicago, Illinois 60670-0324
Attention: Judith Cornwell
Telephone No.: 312/732-6274
Facsimile No.: 312/732-5296
<PAGE> 122
SUNTRUST BANK, ATLANTA, as Documentation
Agent and as a Lender
By: /s/ J. Christopher Deisley
------------------------------------
Name: J. Christopher Deisley
Title: First Vice President
By: /s/ Ashleigh R. Baucom
------------------------------------
Name: Ashleigh Baucom
Title: Associate
Address:
303 Peachtree Street
2nd Floor
Atlanta, GA 30302
Attention: J. Chris Deisley
Telephone No.: 404/588-8684
Facsimile No.: 404/5888-8833
AMSOUTH BANK, as a Lender
By: /s/ Kevin R. Rogers
------------------------------------
Name: Kevin R. Rogers
Title: Attorney-in-fact
Address:
AmSouth Capital Corp.
350 Park Avenue
New York, New York 10022
Attention: Kevin R. Rogers
Telephone No.: 212/935-2237
Facsimile No.: 212/935-7458
<PAGE> 123
COMERICA BANK, as a Lender
By: /s/ Kristine L. Andersen
------------------------------------
Name: Kristine L. Andersen
Title: Assistant Vice President
Address:
500 Woodward Avenue
9th Floor MC3280
Detroit, Michigan 48226
Attention: Kristine L. Andersen
Telephone No.: 313/222-3648
Facsimile No.: 313/222-3330
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ George L. Woolsey
------------------------------------
Name: George L. Woolsey
Title: Vice President
Address:
First Union Capital Markets
301 South College Street
NC-0737
Charlotte, North Carolina 28288-0737
Attention: George L. Woolsey
Telephone No.: 704/374-7907
Facsimile No.: 704/372-4793
<PAGE> 124
SOCIETE GENERAL, as a Lender
By: /s/Ralph Sahop
------------------------------------
Name: Ralph Sahop
Title: Director
Manager Southwest Operations
Address:
2001 Ross Avenue
Suite 4800
Dallas, Texas 75201
Attention: Ed Forsberg
Telephone No.: 404/865-7413
Facsimile No.: 404/865-7419
WACHOVIA BANK, N.A., as a Lender
By: /s/ Kevin B. Harrison
------------------------------------
Name: Kevin B. Harrison
Title: Senior Vice President
Address:
191 Peachtree Street, N.E.
30th Floor
Atlanta, GA 30303-1757
Attention: Kevin Harrison
Telephone No.: 404/332-5269
Facsimile No.: 404/332-6920
<PAGE> 125
EXHIBIT A
TO
CREDIT AGREEMENT
COMMITMENTS
REVOLVING LOAN COMMITMENTS AND TERM LOAN AMOUNTS
<TABLE>
<CAPTION>
LENDER REVOLVING LOAN TRANCHE A TERM TRANCHE B TERM
------ COMMITMENT LOAN COMMITMENT LOAN COMMITMENT
-------------- --------------- ---------------
<S> <C> <C> <C> <C>
The First National Bank of Chicago $11,250,000 $ 7,500,000 $38,500,000(1)
SunTrust Bank, Atlanta $11,250,000 $ 7,500,000 $10,000,000
AmSouth Bank $ 6,000,000 $ 4,000,000 $ 5,000,000
Comerica Bank $ 9,000,000 $ 6,000,000 $ 5,000,000
First Union National Bank $ 6,000,000 $ 4,000,000 $17,000,000(2)
Societe General $ 6,000,000 $ 4,000,000 $ 5,000,000
Wachovia Bank, N.A $10,500,000 $ 7,000,000 $ 7,500,000
----------- ----------- -----------
TOTAL $60,000,000 $40,000,000 $88,000,000
=========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
SWING LINE COMMITMENTS
LENDER AMOUNT OF SWING LINE COMMITMENT % OF SWING LINE COMMITMENT
------ ------------------------------- --------------------------
<S> <C> <C>
The First National Bank of Chicago $10,000,000.00 100%
============== ===
</TABLE>
- --------------------
(1) REFLECTS $8 MILLION OF THE ALLOCATION TO BLACK DIAMOND AND $20.5 MILLION OF
THE ALLOCATION TO BE FRONTED BY BANC ONE CAPITAL MARKETS ON BEHALF OF PENDING
INVESTORS
(2) REFLECTS $12 MILLION OF THE INITIAL ALLOCATION TO BLACK DIAMOND
<PAGE> 126
EXHIBIT B-1
TO
CREDIT AGREEMENT
Form of Revolving Note
AMENDED REVOLVING NOTE
U.S. $_________ Chicago, Illinois
Original Issue Date: August 22, 1996
Reissue Date: May 21, 1999
FOR VALUE RECEIVED, the undersigned, PRINTPACK, INC., a Georgia
corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of [INSERT NAME OF LENDER] (the "Lender") the principal sum of
[_____________] ($[____]), or, if less, the aggregate unpaid amount of all
"Revolving Loans" (as defined in the Credit Agreement referred to below) made by
the Lender to the Borrower pursuant to the "Credit Agreement" (as defined below)
on the "Revolving Loan Termination Date" (as defined in the Credit Agreement),
or on such earlier date as may be required by the terms of the Credit Agreement.
Capitalized terms used herein and not otherwise defined herein are as defined in
the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
each Revolving Loan from the date of such Revolving Loan until such principal
amount is paid in full at a rate or rates per annum determined in accordance
with the terms of the Credit Agreement. Interest hereunder is due and payable at
such times and on such dates as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Agent (as defined below), to such domestic account as
the Agent may designate, in same day funds. At the time of each Revolving Loan,
and upon each payment or prepayment of principal of each Revolving Loan, the
Lender shall make a notation either on the schedule attached hereto and made a
part hereof, or in such Lender's own books and records, in each case specifying
the amount of such Revolving Loan, the respective Interest Period thereof, in
the case of Eurodollar Rate Loans, or the amount of principal paid or prepaid
with respect to such Revolving Loan, as the case may be; provided that the
failure of the Lender to make any such recordation or notation shall not affect
the Obligations of the Borrower hereunder or under the Credit Agreement.
This Amended Revolving Note is one of the "Revolving Notes" referred to
in, and is entitled to the benefits of, the Amended and Restated Credit
Agreement dated as of May 21, 1999 (as amended, restated, supplemented or
modified from time to time, the "Credit Agreement") among the Borrower, the
financial institutions from time to time parties thereto (such financial
institutions being herein referred to collectively as the "Lenders") and The
First National Bank of Chicago, as one of the Lenders and as the contractual
representative for the
<PAGE> 127
Lenders (the "Agent"). The Credit Agreement, among other things, (i) provides
for the making of Revolving Loans by the Lender to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the U.S.
Dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Revolving Loan being evidenced by this Amended Revolving Note and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments of the principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the Borrower.
Whenever in this Amended Revolving Note reference is made to the Agent,
the Lender or Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Amended Revolving Note shall be binding upon and shall inure
to the benefit of said successors and assigns. Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor in possession
of or for Borrower.
This Amended Revolving Note re-evidences, and sets forth repayment
terms with respect to, the indebtedness heretofore evidenced by one or more
"Revolving Notes" (or a portion thereof) previously issued by the Borrower (the
"Original Notes"). It is expressly understood and acknowledged that this Amended
Revolving Note is not in payment or satisfaction of the Original Notes, nor is
this Amended Revolving Note in any way intended to constitute a novation of the
Original Notes.
This Amended Revolving Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the internal
laws (including, without limitation, 735 ILCS Section 105/5-1 et. seq., but
otherwise without regard to the conflicts of law provisions) of the State of
Illinois.
PRINTPACK, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
<PAGE> 128
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
<TABLE>
<CAPTION>
Amount of
Principal Unpaid
Amount of Type of Interest Paid or Principal Notation
Date Loan Loan Period/Rate Prepaid Balance Made By
- ---- ------------ -------- ----------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
3
<PAGE> 129
EXHIBIT B-2
TO
CREDIT AGREEMENT
Form of Swing Line Note
SWING LINE NOTE
U.S. $10,000,000 Chicago, Illinois
August 22, 1996
FOR VALUE RECEIVED, the undersigned, PRINTPACK, INC., a Georgia
corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of THE FIRST NATIONAL BANK OF CHICAGO (the "Lender") the principal sum of
TEN MILLION AND NO/100 DOLLARS ($10,000,000), or, if less, the aggregate unpaid
amount of all "Swing Line Loans" (as defined in the Credit Agreement referred to
below) made by the Lender to the Borrower pursuant to the "Credit Agreement" (as
defined below) on the "Termination Date" (as defined in the Credit Agreement),
or on such earlier date as may be required by the terms of the Credit Agreement.
Capitalized terms used herein and not otherwise defined herein are as defined in
the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full at a rate or rates per annum determined in accordance
with the terms of the Credit Agreement. Interest hereunder is due and payable at
such times and on such dates as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Agent (as defined below), to such domestic account as
the Agent may designate, in same day funds. At the time of each Swing Line Loan,
and upon each payment or prepayment of principal of each Swing Line Loan, the
Lender shall make a notation either on the schedule attached hereto and made a
part hereof, or in such Lender's own books and records, in each case specifying
the amount of such Swing Line Loan, or the amount of principal paid or prepaid
with respect to such Swing Line Loan, as the case may be; provided that the
failure of the Lender to make any such recordation or notation shall not affect
the Obligations of the Borrower hereunder or under the Credit Agreement.
This Swing Line Note is the "Swing Line Note" referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of August 22, 1996
(as amended, restated, supplemented or modified from time to time, the "Credit
Agreement") among the Borrower, the financial institutions from time to time
parties thereto (such financial institutions being herein referred to
collectively as the "Lenders") and The First National Bank of Chicago, as one of
the Lenders and as the contractual representative (the "Agent") for the Lenders.
The Credit
<PAGE> 130
Agreement, among other things, (i) provides for the making of Swing Line Loans
by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. Dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Swing Line Loan being
evidenced by this Swing Line Note and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events and also for
prepayments of the principal hereof prior to the maturity hereof upon the terms
and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the Borrower.
Whenever in this Swing Line Note reference is made to the Agent, the
Lender or Borrower, such reference shall be deemed to include, as applicable, a
reference to their respective successors and assigns. The provisions of this
Swing Line Note shall be binding upon and shall inure to the benefit of said
successors and assigns. Borrower's successors and assigns shall include, without
limitation, a receiver, trustee or debtor in possession of or for Borrower.
This Swing Line Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the internal
laws (including, without limitation, 735 ILCS Section 105/5-1 et. seq., but
otherwise without regard to the conflicts of law provisions) of the State of
Illinois.
PRINTPACK, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
<PAGE> 131
SCHEDULE OF SWING LINE LOANS AND PAYMENTS OR PREPAYMENTS
<TABLE>
<CAPTION>
Amount of
Principal Unpaid
Amount of Paid or Principal Notation
Date Loan Prepaid Balance Made By
- ---- ---- ------- ------- -------
<S> <C> <C> <C> <C>
</TABLE>
3
<PAGE> 132
EXHIBIT B-3
TO
CREDIT AGREEMENT
Form of Tranche A Term Note
AMENDED TRANCHE A TERM NOTE
U.S. $[___________] Chicago, Illinois
Original Issue Date: August 22, 1996
Reissue Date: May 21, 1999
FOR VALUE RECEIVED, the undersigned, PRINTPACK, INC., a Georgia
corporation ("Borrower"), hereby unconditionally promises to pay to the order of
[INSERT NAME OF LENDER] (the "Lender"), the principal sum of [___________]
($[_______]), such amount representing the original aggregate principal amount
of the Lender's portion of the "Tranche A Term Loan" (as defined in the Credit
Agreement referred to below) made by the Lender to the Borrower pursuant to the
"Credit Agreement" (as defined below). Capitalized terms used herein and not
otherwise defined herein are as defined in the Credit Agreement.
Unless otherwise required to be paid sooner pursuant to the provisions
of the Credit Agreement, the principal indebtedness evidenced hereby shall be
payable in eighteen (18) installments in the amounts and at the times specified
in Section 2.1(D) of the Credit Agreement commencing on September 25, 1999 and
continuing thereafter until the Tranche A Term Loan Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
the Lender's Tranche A Term Loan from the date of such Tranche A Term Loan until
such principal amount is paid in full at a rate or rates per annum determined in
accordance with the terms of the Credit Agreement. Interest hereunder is due and
payable at such times and on such dates as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Agent (as defined below), to such domestic account as
the Agent may designate, in same day funds. At the time of each payment or
prepayment of principal of the Lender's Tranche A Term Loan, the Lender shall
make a notation either on the schedule attached hereto and made a part hereof,
or in such Lender's own books and records, in each case specifying the amount of
principal paid or prepaid with respect to such Tranche A Term Loan; provided
that the failure of the Lender to make any such recordation or notation shall
not affect the Obligations of the Borrower hereunder or under the Credit
Agreement.
This Amended Tranche A Term Note is one of the "Tranche A Term Notes"
referred to in, and is entitled to the benefits of, the Amended and Restated
Credit Agreement dated as of May
<PAGE> 133
21, 1999 (as amended, restated, supplemented or modified from time to time, the
"Credit Agreement") among the Borrower, the financial institutions from time to
time parties thereto (such financial institutions being herein referred to
collectively as the "Lenders") and The First National Bank of Chicago, as one of
the Lenders and as the contractual representative for the Lenders (the "Agent").
The Credit Agreement, among other things, (i) amends and restates the terms of
Lender's Tranche A Term Loan, the indebtedness of the Borrower resulting
therefrom being evidenced by this Amended Tranche A Term Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments of the principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the Borrower.
Whenever in this Amended Tranche A Term Note reference is made to the
Agent, the Lender or Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Amended Tranche A Term Note shall be binding upon and shall
inure to the benefit of said successors and assigns. Borrower's successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for Borrower.
This Amended Tranche A Term Note re-evidences, and sets forth repayment
terms with respect to, the indebtedness heretofore evidenced by one or more
"Term Notes" (as defined in the Credit Agreement prior to its restatement) (or a
portion thereof) previously issued by the Borrower (the "Original Notes"). It is
expressly understood and acknowledged that this Amended Tranche A Term Note is
not in payment or satisfaction of the Original Notes, nor is this Amended
Tranche A Term Note in any way intended to constitute a novation of the Original
Notes.
This Amended Tranche A Term Note shall be interpreted, and the rights
and liabilities of the parties hereto determined, in accordance with the
internal laws (including, without limitation, 735 ILCS Section 105/5-1 et. seq.,
but otherwise without regard to the conflicts of law provisions) of the State of
Illinois.
PRINTPACK, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
<PAGE> 134
SCHEDULE OF TRANCHE A TERM LOAN
AND PAYMENTS OR PREPAYMENTS
<TABLE>
<CAPTION>
Amount of
Principal Unpaid
Amount of Type of Interest Paid or Principal Notation
Date Loan Loan Period/Rate Prepaid Balance Made By
- ---- ------------ -------- ----------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
3
<PAGE> 135
EXHIBIT B-4
TO
CREDIT AGREEMENT
Form of Tranche B Term Note
AMENDED TRANCHE B TERM NOTE
U.S. $[___________] Chicago, Illinois
Original Issue Date: August 22, 1996
Reissue Date: May 21, 1999
FOR VALUE RECEIVED, the undersigned, PRINTPACK, INC., a Georgia
corporation ("Borrower"), hereby unconditionally promises to pay to the order of
[INSERT NAME OF LENDER] (the "Lender"), the principal sum of [___________]
($[_______]), such amount representing the original aggregate principal amount
of the Lender's portion of the "Tranche B Term Loan" (as defined in the Credit
Agreement referred to below) made by the Lender to the Borrower pursuant to the
"Credit Agreement" (as defined below). Capitalized terms used herein and not
otherwise defined herein are as defined in the Credit Agreement.
Unless otherwise required to be paid sooner pursuant to the provisions
of the Credit Agreement, the principal indebtedness evidenced hereby shall be
payable in nineteen (19) installments in the amounts and at the times specified
in Section 2.1(E) of the Credit Agreement commencing on September 25, 1999 and
continuing thereafter until the Tranche B Term Loan Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
the Lender's Tranche B Term Loan from the date of such Tranche B Term Loan until
such principal amount is paid in full at a rate or rates per annum determined in
accordance with the terms of the Credit Agreement. Interest hereunder is due and
payable at such times and on such dates as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Agent (as defined below), to such domestic account as
the Agent may designate, in same day funds. At the time of each payment or
prepayment of principal of the Lender's Tranche B Term Loan, the Lender shall
make a notation either on the schedule attached hereto and made a part hereof,
or in such Lender's own books and records, in each case specifying the amount of
principal paid or prepaid with respect to such Tranche B Term Loan; provided
that the failure of the Lender to make any such recordation or notation shall
not affect the Obligations of the Borrower hereunder or under the Credit
Agreement.
This Amended Tranche B Term Note is one of the "Tranche B Term Notes"
referred to in, and is entitled to the benefits of, the Amended and Restated
Credit Agreement dated as of May
<PAGE> 136
21, 1999 (as amended, restated, supplemented or modified from time to time, the
"Credit Agreement") among the Borrower, the financial institutions from time to
time parties thereto (such financial institutions being herein referred to
collectively as the "Lenders") and The First National Bank of Chicago, as one of
the Lenders and as the contractual representative for the Lenders (the "Agent").
The Credit Agreement, among other things, (i) amends and restates the terms of
the Lender's Tranche B Term Loan, the indebtedness of the Borrower resulting
therefrom being evidenced by this Amended Tranche B Term Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments of the principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the Borrower.
Whenever in this Amended Tranche B Term Note reference is made to the
Agent, the Lender or Borrower, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns. The
provisions of this Amended Tranche B Term Note shall be binding upon and shall
inure to the benefit of said successors and assigns. Borrower's successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for Borrower.
This Amended Tranche B Term Note re-evidences, and sets forth repayment
terms with respect to, the indebtedness heretofore evidenced by one or more
"Term Notes" (as defined in the Credit Agreement prior to its restatement) (or a
portion thereof) previously issued by the Borrower (the "Original Notes"). It is
expressly understood and acknowledged that this Amended Tranche B Term Note is
not in payment or satisfaction of the Original Notes, nor is this Amended
Tranche B Term Note in any way intended to constitute a novation of the Original
Notes.
This Amended Tranche B Term Note shall be interpreted, and the rights
and liabilities of the parties hereto determined, in accordance with the
internal laws (including, without limitation, 735 ILCS Section 105/5-1 et. seq.,
but otherwise without regard to the conflicts of law provisions) of the State of
Illinois.
PRINTPACK, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
<PAGE> 137
SCHEDULE OF TRANCHE B TERM LOAN
AND PAYMENTS OR PREPAYMENTS
<TABLE>
<CAPTION>
Amount of
Principal Unpaid
Amount of Type of Interest Paid or Principal Notation
Date Loan Loan Period/Rate Prepaid Balance Made By
- ---- ------------ -------- ----------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
3
<PAGE> 138
EXHIBIT C
TO
CREDIT AGREEMENT
Form of Borrowing Notice
TO: The First National Bank of Chicago, as contractual representative (the
"AGENT") under that certain Amended and Restated Credit Agreement dated
as of May 21, 1999 (the "CREDIT AGREEMENT") by and among Printpack,
Inc. (the "BORROWER"), the financial institutions from time to time
parties thereto and the Agent (such Credit Agreement, as the same may
be amended, restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT")
The Borrower hereby gives to the Agent a Borrowing Notice
pursuant to Section 2.8 of the Credit Agreement, and Borrower hereby requests to
borrow on , ____ (the "BORROWING DATE"):
(a) from the Lenders with Revolving Loan Commitments on a pro
rata basis an aggregate principal amount of $ in ____________
Revolving Loans as a
[ ] Floating Rate Advance
[ ] Eurodollar Advance
o Applicable Interest Period of _________ month(s).
(b) from the Swing Line Bank a Swing Line Loan in the
principal amount of $____________ as a Floating Rate Advance.
The undersigned hereby certifies that (i) the representations
and warranties of the undersigned contained in Article VI of the Credit
Agreement are and shall be true and correct in all material respects on and as
of the date hereof and on and as of the Borrowing Date; (ii) no Default or
Unmatured Default has occurred and is continuing on the date hereof or on the
Borrowing Date or will result from the making of the proposed Loans; and (iii)
the conditions set forth in Section 5.2 of the Credit Agreement have been
satisfied.
Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meanings in this Borrowing Notice.
Dated: PRINTPACK, INC.
--------------------------
By:
------------------------------------
Its:
----------------------------------
<PAGE> 139
EXHIBIT D
TO
CREDIT AGREEMENT
Form of Request for Letter of Credit
TO: ____________________(3), an Issuing Bank under that certain Amended and
Restated Credit Agreement dated as of May 21, 1999 (the "CREDIT
AGREEMENT") by and among Printpack, Inc. (the "BORROWER"), the
financial institutions from time to time parties thereto and The First
National Bank of Chicago, as contractual representative (the "AGENT")
(such Credit Agreement, as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") and
THE FIRST NATIONAL BANK OF CHICAGO, as Agent
One First National Plaza, Suite IL1-0374
Chicago, IL 60670-0374
Attn: Nanette Wilson
Telecopier: 312-732-1221
Confirmation: 312-732-4840
Pursuant to Section 3.4 of the Credit Agreement, the Borrower
hereby gives to the Issuing Bank a request for issuance of a Letter of Credit on
behalf of Borrower for the benefit of __________________________ (4) in the
amount of $______________________, with an effective date of ____________ ____
,__ (the "Effective Date") and an expiry date of ________________ ____,__.
The undersigned hereby certifies that (i) the representations
and warranties of the undersigned contained in Article VI of the Credit
Agreement are and shall be true and correct in all material respects on and as
of the date hereof and on and as of the Effective Date; (ii) no Default or
Unmatured Default has occurred and is continuing on the date hereof or on the
Effective Date or will result from the issuance of the proposed Letter of
Credit; and (iii) the conditions set forth in Sections 3.4 and 5.2 of the Credit
Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meanings in this Request for Letter of Credit.
Dated: ,
---------------------- ---- ---
PRINTPACK, INC.
By:
-----------------------------------
Its:
---------------------------------
- ---------------------------------
(3) Insert name of Issuing Bank
(4) Insert name of beneficiary
<PAGE> 140
EXHIBIT E
TO
CREDIT AGREEMENT
Form of Assignment Agreement
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between
_______________________________(the "ASSIGNOR") and _________________ (the
"ASSIGNEE") is dated as of _____________, __. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, supplemented, restated, renewed or
extended from time to time is herein called (the "CREDIT AGREEMENT") described
in Item 1 of Schedule 1 attached hereto ("SCHEDULE 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"EFFECTIVE DATE") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after a
Notice of Assignment substantially in the form of Exhibit I attached hereto has
been delivered to the Agent. Such Notice of Assignment must include any consents
required to be delivered to the Agent by Section 13.3(A) of the Credit
Agreement. In no event will the Effective Date occur if the payments required to
be made by the Assignee to the Assignor on the Effective Date under Sections 4
and 5 hereof are not made on the proposed Effective Date. The Assignor will
notify the Assignee of the proposed Effective Date no later than the Business
Day prior to the proposed Effective Date. As of the Effective Date, (i) the
Assignee shall have the rights and obligations of a Lender under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder and (ii) the Assignor shall relinquish its rights and be released from
its corresponding obligations under the Loan Documents with respect to the
rights and obligations assigned to the Assignee hereunder.
<PAGE> 141
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect to each Eurodollar Rate
Loan made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such Eurodollar Rate Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the "PAYMENT DATE"),
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such Eurodollar Rate Loan assigned to the Assignee which is
outstanding on the Payment Date. If the Assignor and the Assignee agree that the
Payment Date for such Eurodollar Rate Loan shall be the Effective Date, they
shall agree to the interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the existing
Interest Period applicable to such Eurodollar Rate Loan (the "AGREED INTEREST
RATE") and any interest received by the Assignee in excess of the Agreed
Interest Rate shall be remitted to the Assignor. In the event interest for the
period from the Effective Date to but not including the Payment Date is not paid
by the Borrower with respect to any Eurodollar Rate Loan sold by the Assignor to
the Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Eurodollar Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement. In
the event a prepayment of any Eurodollar Rate Loan which is existing on the
Payment Date and assigned by the Assignor to the Assignee hereunder occurs after
the Payment Date but before the end of the Interest Period applicable to such
Eurodollar Rate Loan, the Assignee shall remit to the Assignor the excess of the
prepayment penalty paid with respect to the portion of such Eurodollar Rate Loan
assigned to the Assignee hereunder over the amount which would have been paid if
such prepayment penalty was calculated based on the Agreed Interest Rate. The
Assignee will also promptly remit to the Assignor (i) any principal payments
received from the Agent with respect to Eurodollar Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Agent which relate to the portion of the Loans assigned to the Assignee
hereunder for periods prior to the Effective Date, in the case of Floating Rate
Loans, or the Payment Date, in the case of Eurodollar Rate Loans, and not
previously paid by the Assignee to the Assignor.]5 In the event that either
party hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount shall
promptly remit it to the other party hereto.
- --------
(5)Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
2
<PAGE> 142
5. FEES PAYABLE BY THE ASSIGNEE. [The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or commitment fees is
made under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or commitment fees for the
period prior to the Effective Date or, in the case of Eurodollar Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was of 1% less than the interest rate paid by
the Borrower or if the commitment fee was of 1% less than the commitment fee
paid by the Borrower, as applicable. In addition,](6) [t]he Assignee agrees to
pay % of the recordation fee required to be paid to the Agent pursuant to
Section 13.3(B) of the Credit Agreement in connection with this Assignment
Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
- -----------------------------
(6) The Assignor and Assignee may delete the bracketed language if not
applicable.
3
<PAGE> 143
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as its contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the purchase and assumption hereunder are "plan assets" as defined under ERISA
and that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [and (viii) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying that the Assignee
is entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes].(7)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Revolving Loan Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 3 of
Schedule 1 shall remain the same, but the dollar amount purchased shall be
recalculated based on the reduced Aggregate Revolving Loan Commitment.
- ---------------
(7) To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
4
<PAGE> 144
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal laws (including, without limitation, 735 ILCS Section 105/5-1 et seq,
but otherwise without regard to the conflict of laws provisions) of the State of
Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
-----------------------------------
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
-----------------------------------
5
<PAGE> 145
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
Amended and Restated Credit Agreement dated as of May 21, 1999 among
Printpack, Inc., as borrower, the financial institutions from time to
time parties thereto, as lenders and The First National Bank of Chicago
as contractual representative for the Lenders.(8)
2. Date of Assignment Agreement: _______________, __
3. Amounts (As of Date of Item 2 above):
<TABLE>
<CAPTION>
===============================================================================================================
REVOLVING OUTSTANDING OUTSTANDING SWING
LOAN TRANCHE A TRANCHE B LINE
FACILITY TERM LOANS TERM LOANS FACILITY
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
TOTAL OF THE
ASSIGNOR'S $___________ N/A N/A $_________
OUTSTANDING
COMMITMENTS UNDER
THE CREDIT AGREEMENT
- ---------------------------------------------------------------------------------------------------------------
ASSIGNEE'S
PERCENTAGE(9) OF EACH
FACILITY PURCHASED __________% ___________% _________% _________%
UNDER THE
ASSIGNMENT
AGREEMENT
- ---------------------------------------------------------------------------------------------------------------
AMOUNT OF ASSIGNED
SHARE OF EACH $___________ $____________ $__________ $_________
FACILITY UNDER THE
ASSIGNMENT
AGREEMENT
===============================================================================================================
</TABLE>
4. Assignee's Aggregate
Revolving Loan Commitment(10) and
Term Loans Purchased Hereunder: $
----------------
- --------
(8) Insert description of any subsequent amendments.
(9) Percentage taken to 10 decimal places.
(10) If Commitment has been terminated, add outstanding Revolving Loans and L/C
Obligations in place of Commitment.
<PAGE> 146
5. Proposed Effective Date:
---------------------------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------- --------------------------
Title: Title:
-------------------------- --------------------------
2
<PAGE> 147
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignee's Administrative Information Sheet, which must
include notice address for the Assignee
<PAGE> 148
EXHIBIT I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
,
------------ ---
To: PRINTPACK, INC.(11)
4355 Wendell Drive, S.W.
Atlanta, GA 30336-1622
Telecopy: 404-696-4868
Confirmation: 404-691-2538
THE FIRST NATIONAL BANK OF CHICAGO,
AS AGENT
One First National Plaza
Suite IL1-0374
Chicago, IL 60670-0374
Attn: Judith Cornwell
Telecopier: 312-732-5296
Confirmation: 312-732-6274
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Amended and Restated Credit Agreement (the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule
1"). Capitalized terms used herein and not otherwise defined herein shall have
the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to [the Borrower and] the Agent pursuant to Section 13.3(B) of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , (the "Assignment"), pursuant to which, among other
things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement relating to the facilities
- -------------
(11) To be included only if consent must be obtained from the Borrower pursuant
to Section 13.3(A) of the Credit Agreement.
<PAGE> 149
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in Item 5 of Schedule 1 or two Business Days (or
such shorter period as agreed to by the Agent) after this Notice of Assignment
and any consents and fees required by Section 13.3 (A) and (B) of the Credit
Agreement have been delivered to the Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower and
the Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Agent before the date specified in Item 5 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Agent if the Assignment Agreement does
not become effective on any proposed Effective Date as a result of the failure
to satisfy the conditions precedent agreed to by the Assignor and the Assignee.
At the request of the Agent, the Assignor will give the Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,500 required by Section 13.3
(B) of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
3
<PAGE> 150
9. The Assignee authorizes the Agent to act as its contractual
representative under the Loan Documents in accordance with the terms thereof.
The Assignee acknowledges that the Agent has no duty to supply information with
respect to the Borrower or the Loan Documents to the Assignee until the Assignee
becomes a party to the Credit Agreement.(12)
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
-------------------------- ---------------------------
Title: Title:
---------------------- ------------------------
ACKNOWLEDGED [AND CONSENTED ACKNOWLEDGED [AND CONSENTED
TO] BY THE FIRST NATIONAL BANK TO] BY PRINTPACK, INC.
OF CHICAGO, AS AGENT
By: By:
-------------------------- ---------------------------
Title: Title:
---------------------- ------------------------
[Attach photocopy of Schedule 1 to Assignment]
- ----------------
(12) May be eliminated if Assignee is a party to the Credit Agreement prior to
the Effective Date.
4
<PAGE> 151
EXHIBIT F
TO
CREDIT AGREEMENT
Form of Borrower's Counsel's Opinion
Attached
<PAGE> 152
EXHIBIT G
TO
CREDIT AGREEMENT
List of Closing Documents
Attached
<PAGE> 153
EXHIBIT H
TO
CREDIT AGREEMENT
Form of Officer's Certificate
OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am the
_________________ of Printpack, Inc., a corporation duly organized and existing
under the laws of the State of Georgia (the "Borrower"). Capitalized terms used
herein and not otherwise defined herein are as defined in that certain Amended
and Restated Credit Agreement dated as of May 21, 1999, among the Borrower, the
financial institutions from time to time parties thereto and The First National
Bank of Chicago, as contractual representative (as amended, restated,
supplemented or modified from time to time, the "Credit Agreement").
I further certify that, pursuant to [Section 5.2] [Section
7.1(A)] of the Credit Agreement, as of the date hereof:
1. No Default or Unmatured Default exists [other than the
following (describe the nature of the Default or Unmatured Default and the
status thereof)].
2. The representations and warranties of the Borrower contained
in Article VI of the Credit Agreement are true and correct in all material
respects.
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the
Corporation on this ____ day of ___________, ____.
----------------------------
[Insert Name of Officer]
<PAGE> 154
EXHIBIT I
TO
CREDIT AGREEMENT
Form Of Compliance Certificate
Pursuant to [Section 5.2] [Section 7.1(A)(iv)] of that certain
Amended and Restated Credit Agreement dated as of May 21, 1999 (the "Credit
Agreement") among Printpack, Inc. (the "Borrower"), the institutions from time
to time parties thereto as Lenders (the "Lenders"), and The First National Bank
of Chicago, in its capacity as contractual representative for itself and the
Lenders (in such capacity, the "Agent"), the Borrower, through its [Vice
President-Finance and Administration][Treasurer], hereby delivers to the Agent[,
together with the financial statements being delivered to the Agent pursuant to
Section 7.1(A)[(ii)][(iii)] of the Credit Agreement,] this Compliance
Certificate for the fiscal quarter ended ___________, ____ (the "Accounting
Period") [and, for purposes of parts I.C and III.C below, the fiscal year then
ended](1). Capitalized terms used herein shall have the meanings set forth in
the Credit Agreement, and Section references herein relate to Sections of the
Credit Agreement. This Compliance Certificate is subject in all respects to the
provisions of the Credit Agreement and is calculated strictly in accordance
therewith.
I. MANDATORY PREPAYMENTS (Section 2.5(B))
A. ASSET SALES (Section 2.5(B)(i)(a))
(1) State whether during the Accounting Period (a) any Net Cash
Proceeds have been received, or non-cash proceeds received
have been converted to cash or Cash Equivalents, in either
case upon the consummation of any Asset Sale by the Borrower
or any Subsidiary of the Borrower, or (b) the period permitted
for the replacement of assets following an Asset Sale in an
earlier period expired without the Net Cash Proceeds received
therefrom having been applied to such replacement.
Yes/No
(2) If the answer to question (1) is yes, state whether any of
such Asset Sales are Asset Sales other than sales of Inventory
in the ordinary course of business, Permitted Receivables
Transfers, dispositions of obsolete, excess or unused assets
in the ordinary course of business, intercompany transfers
among the Borrower and its Controlled Subsidiaries and
transfers of assets pursuant to Investments and Restricted
Payments (in each case, as permitted pursuant to Section
7.3(B)(i), (ii), (iii), (iv) and (v)).
- --------
(1) To be included for the Compliance Certificate accompanying the annual
audited financial statements.
<PAGE> 155
Yes/No
(3) If the answer to question (2) is yes, describe in reasonable
detail on Schedule A hereto the date and nature of each
applicable Asset Sale and the aggregate amount of applicable
Net Cash Proceeds received or non- cash proceeds converted to
cash or Cash Equivalents, deducting therefrom up to
$5,000,000, to the extent such exempt amount has not been
deducted during the twelve months prior to the applicable
Asset Sale from the Net Cash Proceeds of Asset Sales not
otherwise exempt from the mandatory prepayment requirements,
and state below in (a) the resulting aggregate amount from all
applicable Asset Sales and in (b) the actual aggregate amount
of mandatory prepayments made during the Accounting Period
from the Net Cash Proceeds of Asset Sales. (if (a) and (b) are
different, reconcile timing and other differences in
reasonable detail on Schedule A hereto).
<TABLE>
<S> <C> <C>
(a) Non-exempt proceeds of Asset Sales
during Accounting Period $_________
(b) Actual mandatory prepayments from proceeds
of Asset Sales during Accounting Period $_________
</TABLE>
B. FINANCINGS (Section 2.5(B)(i)(b))
(1) State whether during the Accounting Period any Net Cash
Proceeds have been received upon the consummation of any
Financing (defined as an issuance of Equity Interests or of
debt securities pursuant to a registered offering or private
placement) by the Borrower or any Subsidiary of the Borrower.
Yes/No
(2) If the answer to question (1) is yes, state whether any such
Financing did not consist of Permitted Refinancing
Indebtedness and the Net Cash Proceeds therefrom were not
applied in their entirety to either a Permitted Acquisition or
a permitted Restricted Payment.
Yes/No
(3) If the answer to question (2) is yes, describe in reasonable
detail on Schedule A hereto the date and nature of each
applicable Financing and the aggregate amount of applicable
Net Cash Proceeds, and state below in (a) such aggregate
amount and in (b) the actual aggregate amount of
-2-
<PAGE> 156
mandatory prepayments made during the Accounting Period from
the Net Cash Proceeds of Financings.
<TABLE>
<S> <C> <C>
(a) Non-exempt proceeds of Financings
during Accounting Period $_________
(b) Actual mandatory prepayments from proceeds
of Financings during Accounting Period $_________
</TABLE>
C. EXCESS CASH FLOW (Section 2.5(B)(i)(c))(2)
Calculate Excess Cash Flow (including the EBITDA component
thereof) for the Cash Flow Period ended June ___, ____ as
follows, such calculations to be made for the Borrower and its
Subsidiaries on a consolidated basis and in accordance with
Agreement Accounting Principles as provided in the Credit
Agreement (describe in reasonable detail on Schedule A hereto
pro forma adjustments for Permitted Acquisitions, if any,
during such Cash Flow Period):
Net Income
<TABLE>
<S> <C> <C>
+/- Net earnings (loss) after taxes $_________
- excluded earnings of non-consolidated
Subsidiaries -_________
- excluded earnings of Subsidiaries with
dividend restrictions -_________
+/- cumulative effect of changes in accounting
principles +/-_______
+/- nonrecurring items +/-_______
+/- Restructuring Items +/-_________
</TABLE>
- --------
(2) To be included for the Compliance Certificate accompanying the annual
audited financial statements.
-3-
<PAGE> 157
<TABLE>
<S> <C> <C>
+/- Net Income (loss) (as calculated above) of
Person (or division of Person) acquired during
Cash Flow Period not otherwise reflected
above (attach applicable financial statements
to Schedule A hereto) +/-_______
Net Income (deficit) =$________
EBITDA
+/- Net Income (deficit) $_________
+ Interest Expense +_________
+ charges against income for taxes +_________
+ depreciation expense +_________
+ amortization expense, including amortization of
goodwill and other intangible assets, Original
Transaction Costs and other fees, costs and expenses
in connection with the Credit Agreement and other
Loan Documents and in connection with Permitted
Acquisitions +_________
+ other non-cash charges classified as long-term
deferrals +_________
EBITDA =$_________
Excess Cash Flow
EBITDA $_________
- income taxes paid in cash -_________
- Capital Expenditures paid in cash -_________
- cash charges related to plant closings
and early retirement programs, including
severance, equipment relocation, and
termination/modification of benefit programs -_________
</TABLE>
-4-
<PAGE> 158
<TABLE>
<S> <C> <C>
- Interest Expense -_________
- scheduled Term Loan and other
Indebtedness principal amortization -_________
- cash payments in respect of extraordinary
and nonrecurring items -_________
-/+ increase/decrease in Working Capital (the excess, if
any, of current assets other than cash and Cash
Equivalents over current liabilities other than
current maturities of long-term debt, Revolving
Credit Obligations
and accrued interest) -/+________
Excess Cash Flow =$________
75% of Excess Cash Flow x0.75= $________
</TABLE>
A mandatory prepayment of the Obligations in the amount of
seventy-five percent (75.0%) of the amount of Excess Cash Flow
stated above shall be required to be made pursuant to Section
2.5(B)(i)(c) not later than the earlier of ten (10) days after
delivery of the applicable annual audited financial statements
and the above calculation, or one hundred (100) days after the
end of the applicable Cash Flow Period.
II. NEGATIVE COVENANTS
A. INDEBTEDNESS (Section 7.3(A))
(1) State whether during the Accounting Period the Borrower or any
of its Subsidiaries has, directly or indirectly, created,
incurred, assumed or otherwise become directly or indirectly
liable with respect to any Indebtedness not permitted pursuant
to the Indebtedness covenant (Section 7.3(A)) other than
pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 7.3(A)(xv).
Yes/No
(2) If the answer to question (1) is yes, describe in reasonable
detail on Schedule A hereto the date, nature and amount of the
applicable Indebtedness (which Indebtedness would not be
permitted if a Default or Unmatured Default has occurred and
is continuing or would result therefrom), and state below in
(a) the Fixed Charge
-5-
<PAGE> 159
Coverage Ratio, calculated on a pro forma basis for the four-
quarter period ended immediately prior to the Accounting
Period, including pro forma application of the proceeds of
such Indebtedness as if such Indebtedness had been incurred at
the beginning of such four-quarter period (describe in
reasonable detail on Schedule A hereto such pro forma
adjustments to the Fixed Charge Coverage Ratio calculated in
the Compliance Certificate delivered with respect to the
immediately preceding fiscal quarter):
<TABLE>
<S> <C> <C>
(a) Pro forma Fixed Charge Coverage
Ratio at time of incurrence ____ to 1.00
(b) Minimum permitted Fixed Charge Coverage
Ratio at time of incurrence 2.50 to 1.00
</TABLE>
B. RESTRICTED PAYMENTS (Section 7.3(F))
(1) State whether during the Accounting Period the Borrower or any
of its Subsidiaries has declared or made any Restricted
Payment not permitted pursuant to the Restricted Payments
covenant (Section 7.3(F)) other than pursuant to the
cumulative test set forth in Section 7.3(F)(v).
Yes/No
(2) If the answer to question (1) is yes, describe in reasonable
detail on Schedule A hereto the date, nature and amount of the
applicable Restricted Payments, and state below the
calculation of the sum of the items described in clauses (a),
(b), (c) and (d) of Section 7.3(F)(v) for the period (the
"Cumulative Period") commencing with the Borrower's fiscal
quarter ended September 28, 1996 and ending on the last day of
the last fiscal quarter ending prior to such Restricted
Payments (describe in reasonable detail on Schedule A hereto
pro forma adjustments for Permitted Acquisitions, if any,
during such period):
Net Income for the Cumulative Period
<TABLE>
<S> <C> <C>
+/- Net earnings (loss) after taxes $_________
- excluded earnings of non-consolidated
Subsidiaries -_________
- excluded earnings of Subsidiaries with
dividend restrictions -_________
</TABLE>
-6-
<PAGE> 160
<TABLE>
<S> <C> <C>
+/- cumulative effect of changes in accounting
principles +/-_______
+/- nonrecurring items +/-_______
+/- Restructuring Items +/-_________
+/- Net Income (loss) (as calculated above) of Person (or
division of Person) acquired during applicable period
not otherwise reflected above (attach applicable
financial statements to Schedule A hereto) +/-_______
Cumulative Net Income (deficit) =$________
Amount Available for Restricted Payments
+/- 50.0% of Net Income for such period (or, if
Net Income for such period is a deficit, less
100.0% of such deficit) $__________
+ Net Cash Proceeds from the sale or issuance
of Equity Interests (other than Disqualified
Stock) of the Borrower for such period +__________
+ If permitted Restricted Investments made after
the Original Closing Date are sold for cash during such
period, the lesser of
(x) the cash return of capital with
respect to such Restricted Investment
(net of disposition costs)
and
(y) the initial amount of such Restricted
Investment
+----------
+ $10,000,000 + 10,000,000
Maximum permitted amount of Restricted
Payments during Cumulative Period =$_________
</TABLE>
-7-
<PAGE> 161
<TABLE>
<S> <C> <C>
- Aggregate amount of Restricted Payments
made during Cumulative Period -__________
(a) Maximum amount available for Restricted
Payments during Accounting Period =$_________
(b) Amount of Restricted Payments declared
or made during Accounting Period =$_________
</TABLE>
(3) If the answer to question (1) is yes, also complete part II.A
above for $1 of additional Indebtedness after giving effect to
each such Restricted Payment.
III. FINANCIAL COVENANTS
A. MINIMUM FIXED CHARGE COVERAGE RATIO (Section 7.4(A))
Calculate the Fixed Charge Coverage Ratio (the ratio of (1)
EBITDA to (2) Interest Expense) for the Accounting Period
calculated for the four-quarter period ending on the last day
thereof, and calculated, with respect to Permitted
Acquisitions, on a pro forma basis using historical audited
and reviewed unaudited financial statements obtained from the
seller, broken down by fiscal quarter in the Borrower's
reasonable judgment, as follows (describe in reasonable detail
on Schedule A hereto pro forma adjustments for Permitted
Acquisitions, if any, during such four-quarter period):
Net Income
<TABLE>
<S> <C> <C>
+/- Net earnings (loss) after taxes $_________
- excluded earnings of non-consolidated
Subsidiaries -_________
- excluded earnings of Subsidiaries with
dividend restrictions -_________
+/- cumulative effect of changes in accounting
principles +/-_______
+/- nonrecurring items +/-_______
+/- Restructuring Items +/-_________
</TABLE>
-8-
<PAGE> 162
<TABLE>
<S> <C> <C>
+/- Net Income (loss) (as calculated above) of Person (or
division of Person) acquired during the period not
otherwise reflected above (attach applicable
financial statements to Schedule A hereto) +/-_______
Net Income (deficit) =$________
EBITDA
EBITDA
+/- Net Income (deficit) $_________
+ Interest Expense +_________
+ charges against income for taxes +_________
+ depreciation expense +_________
+ amortization expense, including amortization of
goodwill and other intangible assets, Original
Transaction Costs and other fees, costs and expenses
in connection with the Credit Agreement and other
Loan Documents and in connection with Permitted
Acquisitions +_________
+ other non-cash charges classified as long-term
deferrals +_________
EBITDA =$_________
Interest Expense
Interest Expense $_________
(a) Actual Fixed Charge Coverage
Ratio for applicable period ____ to 1.00
(b) Minimum permitted Charge Coverage
Ratio for applicable period ____ to 1.00
</TABLE>
-9-
<PAGE> 163
B. MAXIMUM LEVERAGE RATIO (Section 7.4(B))
Calculate the Leverage Ratio (the ratio of (1) Total Debt to
(2) EBITDA) for the Accounting Period determined based upon
(i) Total Debt as of the last day thereof, and (ii) EBITDA for
the four-quarter period ending on the last day thereof, and
calculated, with respect to Permitted Acquisitions, on a pro
forma basis using historical audited and reviewed unaudited
financial statements obtained from the seller, broken down by
fiscal quarter in the Borrower's reasonable judgment,
(describe in reasonable detail on Schedule A hereto pro forma
adjustments for Permitted Acquisitions, if any, during such
four-quarter period):
<TABLE>
<S> <C> <C>
(1) Total Debt $_________
(2) EBITDA (from III.A above) $_________
(a) Actual Leverage Ratio for applicable period ____ to 1.00
(b) Trigger Ratio for applicable period ____ to 1.00
(c) Default Ratio for applicable period ____ to 1.00
</TABLE>
C. CAPITAL EXPENDITURES (Section 7.4(C))(3)
State in (d) below the aggregate amount of all expenditures
and commitments for Capital Expenditures incurred during the
applicable period, and calculate compliance with Capital
Expenditure requirements as follows:
<TABLE>
<S> <C> <C>
(a) Base amount of permitted Capital Expenditures
pursuant to Section 7.4(C) for applicable period $__________
(b) Carry-Over Amount from most recent
Compliance Certificate +__________
(c) Total permitted Capital Expenditures for
applicable period =$__________
</TABLE>
- --------
(3) To be included for the Compliance Certificate accompanying
the annual audited financial statements.
-10-
<PAGE> 164
<TABLE>
<S> <C> <C>
(d) Actual Capital Expenditures incurred during
applicable period -__________
(e) Excess of permitted over actual Capital
Expenditures =$_________
(f) 50.0% of line (e) =$_________
(g) Carry-Over Amount for succeeding fiscal
year (lesser of line (f) or $25,000,000) $_________
</TABLE>
IV. COMPLIANCE WITH SECURITY DOCUMENTS
1. Since the date of the last compliance certificate, state
whether the Borrower has placed any Collateral in any collateral
locations not reflected on Schedule 2 or 2-A to the Security Agreement
Yes/No
2. If the answer to item 1 is Yes, provide the details in the
chart below and state whether or not UCCs have been filed for such
locations and whether the third party agreements as required under the
Security Agreement have been obtained for such locations:
<TABLE>
<CAPTION>
Third party
Location Address Type of Location UCC filed agreement obtained
- ---------------- ---------------- --------- ------------------
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
-11-
<PAGE> 165
3. Since the date of the last compliance certificate, state
whether the Borrower has opened any new deposit accounts not reflected
on Schedule 4 to the Security Agreement Yes/No
4. If the answer to item 3 is Yes, provide the details in the
chart below and state whether a collection account agreement as
required under the Security Agreement has been obtained for such
deposit accounts:
<TABLE>
<CAPTION>
Name of Financial Account Numbers Collection Account
Institution Agreement obtained
- ----------------- --------------- ------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
5. Since the date of the last compliance certificate, state
whether or not any of the following have occurred:
(a) Receipt by the Borrower of any notes or other
instruments not delivered to the Agent as Pledged Debt under
the Security Agreement Yes/No
(b) Application for or obtaining by the Borrower of
any Patents or Patent Licenses not reflected on the Schedules
to the Patent Security Agreement Yes/No
(c) Application for or obtaining by the Borrower of
any Trademarks or Trademark Licenses not reflected on the
Schedules to the Trademark Security Agreement Yes/No
6. If the answer to any of the items in item 5 above is yes,
please provide the necessary details to the Agent on an attached sheet.
-12-
<PAGE> 166
The Borrower hereby certifies, through its [Vice
President-Finance and Administration][Treasurer], that the information set forth
above is accurate as of _______________, ____, to the best of such officer's
knowledge, after diligent inquiry[, and that the financial statements delivered
herewith present fairly the consolidated financial position of the Borrower and
its Subsidiaries at the dates indicated and the results of their operations and
cash flows for the periods indicated in conformity with Agreement Accounting
Principles [, subject to normal year end adjustments]].
Dated: ______________, ____
PRINTPACK, INC.
By:
-----------------------------------
Name:
------------------------------
Title: [Vice President-Finance and
Administration][Treasurer]
-13-
<PAGE> 1
EXHIBIT 99.2
WAIVER AND AMENDMENT
THIS WAIVER AND AMENDMENT (this "AMENDMENT") is entered into as of the 21st
day of September, 1998, by and among Flexible Funding Corp. (the "SELLER"),
Falcon Asset Securitization Corporation ("FALCON") and The First National Bank
of Chicago, individually ("FIRST CHICAGO") and as agent (the "AGENT") with
respect to that certain Receivables Purchase Agreement dated as of August 22,
1996 by and among the parties hereto (the "RPA"). Capitalized terms used and not
otherwise defined herein are used with the meanings attributed thereto in the
RPA.
W I T N E S S E T H:
WHEREAS, the parties wish to waive certain Servicer Defaults that have
occurred under the RPA; and
WHEREAS, in addition to such waivers, the parties wish to amend the
RPA in certain respects;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Waivers. Each of the Agent and the Purchasers hereby waives any
Servicer Default that may have resulted under Section 7.1(a), 7.1(c) and/or
7.1(g) of the RPA from the aggregate Receivable Interests exceeding 100% at any
time during the months of October 1997, November 1997, December 1997, January
1998, April 1998, May 1998, June 1998 and July 1998.
2. Amendments.
2.1. Clause (4) of the definition of "ELIGIBLE RECEIVABLE" set forth
in Exhibit I to the RPA is hereby amended to delete "30" where it appears and to
substitute "60" in lieu thereof.
2.2. Clauses (c) and (e) of the definition of "EXCESS CONCENTRATION
BALANCES" set forth in Exhibit I to the RPA are hereby amended and restated in
their entirety to read as follows:
(c) (i) with respect to Receivables owing from natural persons
resident in -- or corporations or other business entities with their chief
executive offices in -- a province of Canada other than Quebec, 5% of the
aggregate Outstanding Balance of all Eligible Receivables, and (ii) with
respect to Receivables owing from all other Foreign Obligors, 5% of the
aggregate Outstanding Balance of all Eligible Receivables;
<PAGE> 2
(e) (i) with respect to Receivables arising under Contracts that
require payment within 31-60 days after the original invoice date therefor,
10% of the aggregate Outstanding Balance of all Eligible Receivables and
(ii) with respect to all Receivables arising under Bill and Hold
arrangements, 5% of the aggregate Outstanding Balance of all Eligible
Receivables.
2.3. The following new definitions are hereby inserted in their
appropriate alphabetical order into Exhibit I to the RPA:
"REPORTING DATE" means the sixth (6th) Business Day after Friday of
each week.
"SETTLEMENT DATE" means a Business Day not later than one (1) Business
Day after each Reporting Date.
2.4. The second sentence of Section 1.10 of the RPA is hereby amended
and restated in its entirety to read as follows:
If, on any Friday, the aggregate Receivable Interests of the
Purchasers exceed 100%, the Seller shall pay to the Agent not later than
the immediately succeeding Settlement Date an amount to be applied to
reduce the Capital of the Receivable Interests, such that after giving
effect to such payment, the aggregate of the Receivable Interest equals or
is less than 100%.
2.5. Section 6.5(a) of the RPA is hereby amended and restated in its
entirety to read as follows:
(a) Not later than each Reporting Date, the Servicer shall prepare
and forward to the Agent a Weekly Report.
2.6. Sections 7.1(a), (b), (c) and (g) are hereby amended and restated
in their entirety to read, respectively, as follows:
(a) The Servicer or the Seller shall fail to make any payment or
deposit when required hereunder and, EXCEPT FOR A PAYMENT DUE UNDER SECTION
1.10, such failure shall remain unremedied for one (1) Business Day
following the occurrence thereof.
(b) The Servicer or the Seller shall fail to deliver any Weekly
Report ON OR BEFORE EACH REPORTING DATE, or THE SERVICER OR THE SELLER
SHALL FAIL TO DELIVER any Monthly Report within two (2) Business Days after
the same is due.
(c) The Servicer or the Seller shall fail to perform or observe
2
<PAGE> 3
any other term, covenant or agreement hereunder (other than as referred to
in ANY OTHER SUBSECTION OF THIS SECTION 7.1) and such failure shall remain
unremedied for five (5) Business Days following written notice thereof to
the Servicer or the Seller, as applicable.
(g) The aggregate Receivable Interests hereunder shall at any time
exceed 100% AND SUCH EXCESS SHALL CONTINUE UNREMEDIED BEYOND THE SETTLEMENT
DATE IMMEDIATELY FOLLOWING THE REPORTING DATE WHEN SUCH EXCESS IS FIRST
REQUIRED TO BE REPORTED.
3. Representations and Warranties. In order to induce the Agent and
the Purchasers to enter into this Amendment, the Seller hereby represents and
warrants to the Agent and the Purchasers that (a) this Amendment has been duly
authorized, executed and delivered by the Seller and is enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally, and (b) after giving
prospective effect to the waivers and amendments set forth herein, each of the
representations and warranties set forth in Section 3.1 of the RPA will be true
and correct as of the date hereof, and no Servicer Default or Potential Servicer
Default will exist and be continuing.
4. Effectiveness. This Amendment will become effective when each of
the parties hereto has duly executed a counterpart hereof and delivered such
executed counterpart to the Agent.
5. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS.
(b) Reaffirmation. Except as expressly modified hereby, the RPA
remains unaltered and in full force and effect, and is hereby ratified and
confirmed.
(c) Counterparts; Severability. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same Agreement. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date
hereof.
FLEXIBLE FUNDING CORP.
By: /s/ R. Michael Hembree
-----------------------------------------
Name: R. Michael Hembree
Title: Vice President, Finance & Admn.
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Brooks P. Crankshaw
-----------------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO,
as an Investor and as Agent
By: /s/ Brooks P. Crankshaw
------------------------------------------
Authorized Agent
4
<PAGE> 1
Exhibit 99.3
AMENDMENT
THIS AMENDMENT, dated as of May 21, 1999 (this "AMENDMENT"), is
entered into by and among Flexible Funding Corp. (the "SELLER"), Falcon Asset
Securitization Corporation ("FALCON") and The First National Bank of Chicago,
individually ("FIRST CHICAGO") and as agent (the "AGENT") with respect to that
certain Receivables Purchase Agreement dated as of August 22, 1996 by and among
the parties hereto (as previously amended and as amended hereby, the "RPA").
Capitalized terms used and not otherwise defined herein are used with the
meanings attributed thereto in the RPA.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments.
1.1. The definition of "LIQUIDITY TERMINATION DATE" set forth in
Exhibit I to the RPA is hereby amended to delete "August 20, 2001" where it
appears and to substitute "December 31, 2003" in lieu thereof.
1.2. The definition of "ADJUSTED LIBOR RATE" set forth in Exhibit I to
the RPA is hereby amended and restated in its entirety to read as follows:
"ADJUSTED LIBOR RATE" means, on any date of determination with respect
to any Receivable Interest: the sum of (a) the applicable LIBOR Rate, plus
(b) 0.50% per annum with respect to any Receivable Interest of Falcon, and
2.75% per annum with respect to any Receivable Interest of the Investors.
1.3. The following new definitions are hereby inserted in their
appropriate alphabetical order into Exhibit I to the RPA:
"AGREEMENT ACCOUNTING PRINCIPLES" has the meaning provided in the
Credit Agreement.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the
Originator and its Subsidiaries during that period that, in conformity with
Agreement Accounting Principles, are required to be included in or
reflected by the property, plant, equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Originator and its
Subsidiaries, other than Permitted Acquisitions.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership,
partnership interests (whether general or limited) and (iv) any other
interest or participation that confers on a Person the right to
<PAGE> 2
receive a share of the profits and losses of, or distributions of assets
of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"CREDIT AGREEMENT" means that certain Amended and Restated Credit
Agreement dated as of May 21, 1999 among Printpack, Inc., a Georgia
corporation, the lenders from time to time party thereto, and The First
National Bank of Chicago, in its capacity as agent thereunder, as the same
may be amended, restated or otherwise modified from time to time in
accordance with the terms thereof.
"EBITDA" means, for any period, on a consolidated basis for the
Originator and its Subsidiaries, the sum of the amounts for such period of
(i) Net Income, plus (ii) Interest Expense, plus (iii) charges against
income for foreign, federal, state and local taxes, plus (iv) depreciation
expense, plus (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets, and fees, costs,
Original Transaction Costs (as defined in the Credit Agreement) and
expenses in connection with Permitted Acquisitions, plus (vi) other
non-cash charges classified as long-term deferrals in accordance with
Agreement Accounting Principles.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and
all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, exchange rates
or forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
"INDEBTEDNESS" has the meaning provided in the Credit Agreement.
"INTEREST EXPENSE" means, for any period, the sum of (i) the total
interest expense of the Originator and its consolidated Subsidiaries,
whether paid or
2
<PAGE> 3
accrued (including the interest component of Capitalized Leases, commitment
and letter of credit fees, and discount and other fees and charges incurred
under the Transaction Documents), but excluding interest expense not
payable in cash (including amortization of discount), and (ii) the product
of (a) all cash dividend payments on any series of preferred stock issued
by the Originator or any of its Subsidiaries, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of the
Originator, expressed as a decimal, in each case on a consolidated basis,
all as determined in conformity with Agreement Accounting Principles.
"LETTER OF CREDIT" has the meaning provided in the Credit Agreement.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of the Originator and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity
with Agreement Accounting Principles; provided, that when calculating Net
Income the following items shall be excluded from such calculation: (i) the
earnings (but not loss) of any Person that is not a Subsidiary or that is
accounted for by the equity method of accounting, except to the extent of
the amount of dividends or distributions paid in cash to the Originator or
a consolidated Subsidiary; (ii) the earnings of a Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by
such Subsidiary to the Originator with respect to such earnings is not, at
the date of determination, permitted without the prior approval of a
Governmental Authority (and such approval has not been obtained), or is
prohibited, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary or the
holders of its Capital Stock, (iii) the cumulative effect of a change in
accounting principles and (iv) nonrecurring items, such as gains or losses
on the sale of assets or any Restructuring Items; but when calculating Net
Income such calculation shall include historical audited Net Income (as
calculated above) for such period of any Person (or division of such
Person) that became a Subsidiary of the Originator during such period or
was merged into or was consolidated with the Originator or any of its
Subsidiaries during such period, or where the assets of such Person (or
division of such Person) were acquired by the Originator or any of its
Subsidiaries during such period, whether accrued prior or subsequent to the
date of such acquisition, merger or consolidation.
"PERMITTED ACQUISITION" has the meaning provided in the Credit
Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" has the meaning provided in
the Credit Agreement.
3
<PAGE> 4
"RESTRUCTURING ITEMS" shall mean the charges or reserves taken on the
financial statements of the Originator or any of its Subsidiaries in
accordance with Agreement Accounting Principles in connection with
severance, plant closings, equipment relocations or other charges related
to the consolidation or rationalization of operations.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Originator and its Subsidiaries, the sum of Indebtedness of the Originator
and its Subsidiaries, other than (i) Hedging Obligations and (ii) the sum
of the amounts then available for drawing under Letters of Credit.
1.4. Section 7.1 of the RPA is hereby amended to add the following new
subsections (m), (n) and (o) thereto:
(m) The Originator fails to maintain a ratio ("FIXED CHARGE COVERAGE
RATIO") of EBITDA to Interest Expense of at least the ratio set forth below
at the end of each fiscal quarter ending in the periods set forth in the
table below:
<TABLE>
<CAPTION>
--------------------------------------------------- ---------------------
APPLICABLE PERIOD RATIO
--------------------------------------------------- ---------------------
<S> <C>
May 21, 1999 through June 30, 2000 1.75 to 1.00
July 1, 2000 through June 30, 2001 2.00 to 1.00
July 1, 2001 through June 30, 2002 2.25 to 1.00
July 1, 2002 and thereafter 2.50 to 1.00
</TABLE>
In each case the Fixed Charge Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the four-quarter period ending on such
day.
(n) The Originator permits the ratio (the "LEVERAGE RATIO") of Total
Debt to EBITDA to be greater than the ratio set forth in the table below
under the column entitled "Default Ratio" at the end of each fiscal quarter
ending in the periods set forth in the table below:
<TABLE>
<CAPTION>
------------------------------------------------------ --------------------
APPLICABLE PERIOD DEFAULT RATIO
------------------------------------------------------ --------------------
<S> <C>
May 21, 1999 through December 31, 1999 5.50 to 1.00
January 1, 2000 through June 30, 2000 5.25 to 1.00
July 1, 2000 through June 30, 2001 5.00 to 1.00
July 1, 2001 through June 30, 2002 4.75 to 1.00
July 1, 2002 and thereafter 4.50 to 1.00
</TABLE>
The Leverage Ratio shall be calculated, in each case, determined as of the
last day of each fiscal quarter based upon (a) for Total Debt, Total Debt
as of the last day
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<PAGE> 5
of each such fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical audited and
reviewed unaudited financial statements obtained from the seller, broken
down by fiscal quarter in the Originator's reasonable judgment.
(o) The Originator and its Subsidiaries expend, or commit to expend,
for Capital Expenditures during the periods set forth in the table below,
on a non-cumulative basis except as provided herein, in the aggregate for
the Originator and its Subsidiaries, in excess of the corresponding amounts
set forth in the table below for such period:
<TABLE>
<CAPTION>
-------------------------------------------------- -------------------------------
APPLICABLE PERIOD MAXIMUM AMOUNT
-------------------------------------------------- -------------------------------
<S> <C>
May 21, 1999 through June 30, 1999 $47,000,000
July 1, 1999 through June 30, 2000 $48,000,000
July 1, 2000 through June 30, 2001 $49,000,000
July 1, 2001 through June 30, 2002 $50,000,000
July 1, 2002 through June 30, 2003 $50,000,000
July 1, 2003 through March 31, 2004 $50,000,000
</TABLE>
In the event that for any of the foregoing periods the actual amount of
Capital Expenditures for the Originator and its Subsidiaries shall be less
than the applicable limitation amount set forth above (plus any increase
therein pursuant to this sentence), an amount (the "CARRY-OVER AMOUNT")
equal to fifty percent (50.0%) of (i) permitted Capital Expenditures minus
(ii) actual amount of Capital Expenditures for such period, shall be added
to the permitted Capital Expenditures for the next succeeding fiscal year;
provided, that the Carry-Over Amount shall not exceed $25,000,000 in any
fiscal year.
2. Representations and Warranties. In order to induce the Agent and
the Purchasers to enter into this Amendment, the Seller hereby represents and
warrants to the Agent and the Purchasers that (a) this Amendment has been duly
authorized, executed and delivered by the Seller and is enforceable against the
Seller in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally, and (b) after giving
prospective effect to the amendments set forth herein, each of the
representations and warranties set forth in Section 3.1 of the RPA will be true
and correct as of the date hereof, and no Servicer Default or Potential Servicer
Default will exist and be continuing.
3. Conditions Precedent to Effectiveness. This Amendment will become
effective when (a) each of the parties hereto has duly executed a counterpart
hereof and delivered such executed counterpart to the Agent, and (b) the Seller
has executed and delivered to the
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<PAGE> 6
Agent an amendment fee letter dated the date hereof and paid the fee required to
be paid thereunder in immediately available funds.
4. Miscellaneous.
(a) CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(b) Reaffirmation. Except as expressly modified hereby, the RPA
remains unaltered and in full force and effect, and is hereby ratified and
confirmed.
(c) Counterparts; Severability. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Agreement. Any
provisions of this Amendment which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date
hereof.
FLEXIBLE FUNDING CORP.
By:/s/ Dellmer B. Seitter III
----------------------------------------
Name: Dellmer B. Seitter III
Title: Treasurer
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Karen E. Staib
---------------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO, as an
Investor and as Agent
By: /s/ Karen E. Staib
----------------------------------------
Authorized Agent
6
