<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: April 19, 1999
Hercules Incorporated
(Exact name of registrant as specified in its charter)
Delaware 001-00496 51-0023450
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (302) 594-5000
Not Applicable
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On October 15, 1998, Hercules Incorporated, a Delaware corporation,
merged with BetzDearborn, Inc. In order to pay the merger consideration,
Hercules borrowed $3.65 billion under a credit facility which was syndicated by
NationsBank, N.A. This Credit Agreement, dated October 15, 1998, was previously
filed as an exhibit to Hercules Current Report on Form 8-K dated October 15,
1998.
On April 19, 1999, upon Hercules' receipt of approval by all lenders
thereunder, the Credit Agreement was amended and restated to effect changes,
including the following:
(1) Hercules can now borrow in Euros, as well as United States of
America dollars, and certain outstanding borrowings were
converted to indebtedness denominated in Euros.
(2) Hercules' Canadian subsidiary, BetzDearborn Canada, Inc., can
borrow up to U.S. $100 million from select lenders in Canada in
Canadian dollars.
(3) Hercules has greater flexibility to make corporate changes
within the Hercules family of entities without the need to
obtain consent from the lenders under the Credit Agreement.
The Amended and Restated Credit Agreement, dated April 19, 1999, is
attached as an exhibit to this Current Report on Form 8-K and is incorporated by
reference herein.
2
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Item 7. Financial Statements and Exhibits
<TABLE>
<CAPTION>
Number Exhibit
- ------ -------
<S> <C>
10.2 Amended and Restated Credit Agreement, dated April 19, 1999,
among Hercules Incorporated, NationsBank, N.A., as Administrative
Agent, and the lenders party thereto.
</TABLE>
3
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
HERCULES INCORPORATED
Date April 30, 1999 By: /s/ Israel J. Floyd
--------------- -------------------------------
Israel J. Floyd
Corporate Secretary
4
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Exhibit Index
<TABLE>
<CAPTION>
Number Exhibit
- ------ -------
<S> <C>
10.2 Amended and Restated Credit Agreement, dated April 19, 1999,
among Hercules Incorporated, NationsBank, N.A., as
Administrative Agent, and the lenders party thereto.
</TABLE>
5
<PAGE> 1
[Execution Copy]
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
HERCULES INCORPORATED
THE SUBSIDIARIES OF HERCULES INCORPORATED
FROM TIME TO TIME PARTIES HERETO
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
NATIONSBANK, N.A.
AS ADMINISTRATIVE AGENT
BANK OF AMERICA CANADA
AS CANADIAN ADMINISTRATIVE AGENT
AND
THE CHASE MANHATTAN BANK,
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
AND
CITIBANK, N.A.,
AS CO-SYNDICATION AGENTS
DATED AS OF APRIL 19, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C> <C>
SECTION 1. Representations and Warranties of the Company .........................................................1
1.1. Corporate Authority................................................................................1
1.2. Financial Statements...............................................................................2
1.3. Validity of Documents..............................................................................3
1.4. No Events of Default...............................................................................3
1.5. Litigation.........................................................................................3
1.6. Use of Proceeds....................................................................................4
1.7. No Change..........................................................................................4
1.8. Federal Regulations................................................................................4
1.9. ERISA..............................................................................................4
1.10. Investment Company Act; Other Regulations..........................................................5
1.11. Compliance with Law................................................................................5
1.12. Taxes..............................................................................................5
1.13. Material Subsidiaries..............................................................................5
1.14. Environmental Matters..............................................................................6
1.15. Solvency...........................................................................................7
1.16. Disclosure.........................................................................................7
1.17. No Burdensome Restrictions.........................................................................7
1.18. Representations and Warranties from Merger Agreement...............................................8
1.19. Year 2000 Compliance...............................................................................8
SECTION 2. Amount and Terms of Commitments........................................................................8
2.1. Revolving Credit Commitments.......................................................................8
2.2. Notes Evidencing Revolving Credit Loans...........................................................10
2.3. Procedure for Revolving Credit Borrowing..........................................................10
2.4. Fees..............................................................................................12
2.5. Termination or Reduction of a Revolving Committed Amount..........................................13
2.6. Prepayments; Payments on Restatement Effective Date...............................................13
2.7. Conversion and Continuation Options...............................................................16
2.8. Minimum Amounts of Tranches and Maximum Number of Eurodollar Loans................................17
2.9. Interest Rates and Payment Dates..................................................................18
2.10. Computation of Interest and Fees..................................................................19
2.11. Pro Rata Treatment and Payments...................................................................19
2.12. Taxes.............................................................................................20
2.13. Designated Borrowers..............................................................................22
2.14. Several Liability of Borrowers....................................................................23
2.15. Swingline Loan Subfacility........................................................................23
2.16. Letter of Credit Subfacility......................................................................25
2.17. Term Loan Tranches................................................................................30
2.18. Bankers'Acceptances...............................................................................34
</TABLE>
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<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
SECTION 3. Change in Circumstances Affecting Loans or Bankers'Acceptances........................................38
3.1. Basis for Determining Interest Rate Inadequate or Unfair; Inability to Create Bankers'Acceptances..38
3.2. Illegality.........................................................................................39
3.3. Increased Cost.....................................................................................39
3.4. Effect on Obligation to Convert....................................................................40
3.5. Funding Losses.....................................................................................40
SECTION 3A. Guaranty............................................................................................41
3A.1 Guaranty of Payment................................................................................41
3A.2 Obligations Unconditional..........................................................................41
3A.3 Modifications......................................................................................42
3A.4 Waiver of Rights...................................................................................42
3A.5 Reinstatement......................................................................................43
3A.6 Remedies...........................................................................................43
3A.7 Limitation of Guaranty.............................................................................43
3A.8 Rights of Contribution.............................................................................44
3A.9 Releases of Certain Guarantors.....................................................................44
SECTION 4. Conditions Precedent..................................................................................44
4.1. Effectiveness of this Agreement....................................................................44
4.2. Conditions to all Borrowings.......................................................................45
SECTION 5. Covenants.............................................................................................46
5.1. Affirmative Covenants..............................................................................46
5.2. Negative Covenants.................................................................................50
SECTION 6. Defaults..............................................................................................56
6.1. Defaults; Events of Default; Certain Remedies......................................................56
6.2. Conversion and Redenomination Certain Loans; Purchase of Risk Participations.......................59
SECTION 7. Definitions...........................................................................................60
SECTION 8. The Agents............................................................................................82
8.1. Appointment........................................................................................82
8.2. Delegation of Duties...............................................................................83
8.3. Exculpatory Provisions.............................................................................83
8.4. Reliance by Agents.................................................................................83
8.5. Notice of Default..................................................................................84
8.6. Non-Reliance on Agents and Other Lenders...........................................................84
8.7. Indemnification....................................................................................84
8.8. Agent in Its Individual Capacity...................................................................85
8.9. Successor Agent....................................................................................85
SECTION 9. Miscellaneous.........................................................................................86
9.1. Amendments and Waivers.............................................................................86
9.2. Notices............................................................................................86
9.3. No Waiver; Cumulative Remedies.....................................................................88
9.4. Survival of Representations and Warranties.........................................................88
9.5. Payment of Expenses and Taxes......................................................................88
9.6. Successors and Assigns; Participations and Assignments.............................................89
9.7. Adjustments; Set-off...............................................................................91
9.8. Counterparts.......................................................................................92
</TABLE>
ii
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<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
9.9. Adjustments for Changes in GAAP...................................................................92
9.10. Severability; Section Headings....................................................................92
9.11. Integration.......................................................................................92
9.12. Governing Law.....................................................................................93
9.13. Submission To Jurisdiction; Waivers...............................................................93
9.14. Acknowledgments...................................................................................93
9.15. Waiver of Jury Trial..............................................................................94
9.16. Termination of Collateral Period..................................................................94
9.17. Confidentiality...................................................................................94
9.18. Prudential Intercreditor Agreement................................................................95
9.19. Binding Effect; Amendment and Restatement of Existing Credit Agreement; Further Assurances........95
9.20. Judgment Currency.................................................................................96
</TABLE>
iii
<PAGE> 5
EXHIBITS
Exhibit A - Form of Regular Note Exhibit B - Form of Canadian Borrower Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Borrower Joinder Agreement
Exhibit E - Form of Guarantor Joinder Agreement
Exhibit F - Form of Advance Request
Exhibit G - Form of Notice of Borrowing for Term Loans
Exhibit H - Form of Notice of Continuation/Conversion
Exhibit I - Form of Pledge Agreement
Exhibit J - Form of Prudential Intercreditor Agreement
SCHEDULES
SCHEDULE I - Commitments and Commitment Percentages
SCHEDULE II - Material Subsidiaries
SCHEDULE III - Required Consents, Authorizations, Notices and Filings
SCHEDULE IV - Existing Indebtedness of the Material Subsidiaries
SCHEDULE V - Representation Regarding Collateral Documents
SCHEDULE VI - Existing Letters of Credit
SCHEDULE VII - Names and Addresses of Lenders
iv
<PAGE> 6
AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 19, 1999 (as
amended, supplemented or otherwise modified from time to time pursuant to the
applicable provisions hereof, the "Agreement"), among HERCULES INCORPORATED, a
Delaware corporation (the "Company"), such subsidiaries of the Company as may
from time to time be Borrowers and/or Guarantors hereunder in accordance with
the provisions hereof (collectively with the Company, the "Credit Parties"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), NATIONSBANK, N.A., as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders, BANK OF AMERICA CANADA,
as Canadian administrative agent (in such capacity, the "Canadian Administrative
Agent") for the Lenders, and THE CHASE MANHATTAN BANK, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK and CITIBANK, N.A., as Co-Syndication Agents (in such
capacity, the "Co-Agents").
RECITALS
A. The Credit Parties party thereto, the Administrative Agent,
the Co-Agents, and the Lenders party thereto entered into that
certain Credit Agreement dated as of October 15, 1998 (as
amended by Amendment No. 1 to Credit Agreement dated as of
December 31, 1998, the "Existing Credit Agreement").
B. The Credit Parties, the Lenders, the Administrative Agent, the
Canadian Administrative Agent and the Co-Agents wish to amend
and restate the terms and conditions of the Existing Credit
Agreement as set forth below.
Therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Credit Parties, the Lenders,
the Administrative Agent, the Canadian Administrative Agent and the Co-Agents
agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In order to induce the Lenders and the Agents (as that term and other
capitalized terms not otherwise defined herein are hereinafter defined in
Section 7) to enter into this Agreement and to make the Loans and other
extensions of credit hereunder, the Credit Parties make the following
representations, covenants and warranties which shall survive the execution and
delivery of the Credit Documents:
1.1. CORPORATE AUTHORITY.
(a) Each Credit Party is a duly and validly existing corporation, and
is in good standing under the laws of the jurisdiction of its incorporation. The
execution, delivery and
<PAGE> 7
performance of the Credit Documents are within each Credit Party's corporate
authority and have been duly authorized by proper corporate proceedings. This
Agreement has been, and each of the other Credit Documents required to be
executed and delivered by a Credit Party will be, duly executed and delivered by
each Credit Party that is a party thereto.
(b) Each Credit Party (i) has the corporate or other necessary power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged and (ii) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing could not reasonably be expected to have a
Material Adverse Effect.
1.2. FINANCIAL STATEMENTS.
(a) The consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of December 31, 1997, and the related consolidated statements of
income, stockholders' equity and cash flow (including the notes thereto) for the
fiscal year ended on such date, reported upon by Coopers & Lybrand, present
fairly in all material respects the consolidated financial position of the
Company and its Consolidated Subsidiaries as of said date and the consolidated
results of their operations for such fiscal year, in conformity with GAAP.
(b) The consolidated balance sheets of the Company and its Consolidated
Subsidiaries as of June 30, 1998, and the related consolidated statements of
income and cash flows for the quarterly period ended on such date, present
fairly in all material respects the consolidated financial position of the
Company and its Consolidated Subsidiaries as of said date and the consolidated
results of their operations for such quarterly period, in conformity with GAAP;
provided, however, that such financial statements are subject to year-end
adjustments and are presented without footnotes.
(c) The pro forma consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the Closing Date giving effect to the
Acquisition in accordance with the terms of the Merger Agreement and reflecting
estimated purchase price accounting adjustments, has heretofore been furnished
to each Lender. Such pro forma balance sheet is based upon reasonable
assumptions made known to the Lenders and upon information not known to be
incorrect or misleading in any material respect.
(d) The financial statements delivered to the Lenders pursuant to
subsection 5.1(a)(i)(A) and (B), (i) have been prepared in accordance with GAAP
(except as may otherwise be permitted hereunder) and (ii) present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Company and its
Consolidated Subsidiaries as of such date and for such periods.
2
<PAGE> 8
1.3. VALIDITY OF DOCUMENTS.
(a) This Agreement constitutes, and the other Credit Documents when
duly executed and delivered by each Credit Party that is a party thereto in
accordance with this Agreement will constitute, legal, valid and binding
obligations of each Credit Party, each enforceable in accordance with its terms
except as the enforceability of such Credit Document may be limited (x) by
general principles of equity and conflicts of laws or (y) by bankruptcy,
reorganization, insolvency, moratorium or other laws of general application
relating to or affecting the enforcement, of creditors' rights. Neither the
execution, delivery or performance of this Agreement or the other Credit
Documents, nor compliance with the terms and provisions hereof and thereof, will
(i) conflict with, or result in a breach of any provisions of, any Requirement
of Law applicable to the Credit Parties, specifically including the certificate
of incorporation or the by-laws of a Credit Party, or any agreement or
instrument to which a Credit Party is a party, or by which it or its properties
is bound, or constitute a default thereunder, except where such conflict, breach
or default would not reasonably be expected to have a Material Adverse Effect or
(ii) result in or require the creation of any Lien (other than those
contemplated in or created in connection with the Credit Documents) upon a
Credit Party or with respect to its properties.
(b) No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other Person
is required to be obtained or made by or on behalf of any Credit Party in
connection with the borrowings or other extensions of credit hereunder or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents to which such Credit Party is a party, except for (i) consents,
authorizations, notices and filings described in Schedule III, all of which have
been obtained or made or have the status described in such Schedule III and (ii)
filings to perfect the Liens created by the Collateral Documents.
1.4. NO EVENTS OF DEFAULT.
No Event of Default specified in subsection 6.1 of this Agreement and
no event of default specified in any other agreement evidencing indebtedness of
the Company or any of its Material Subsidiaries for borrowed money in excess of
$25,000,000, and no event which, with the giving of notice or lapse of time, or
both, could become such an Event of Default or event of default, has occurred
and is continuing.
1.5. LITIGATION.
Except as set forth on the Company's Form 10-Q filed with the
Securities and Exchange Commission for the quarterly period ended June 30, 1998,
there are no actions, suits or proceedings pending or, to the knowledge of a
Credit Party, threatened against or affecting the Company or any Consolidated
Subsidiary before any court or before any governmental or administrative body or
agency, which could reasonably be expected to have a Material Adverse Effect.
3
<PAGE> 9
1.6. USE OF PROCEEDS.
The proceeds of the Loans shall be used (a) to fund the Acquisition
(including, without limitation, through loans, advances or equity contributions
made to Subsidiaries of the Company) and (b) for working capital, capital
expenditures, repayment of Indebtedness of the Company, BetzDearborn and their
Subsidiaries and other general corporate purposes. The Letters of Credit shall
be used only for or in connection with appeal bonds, reimbursement obligations
arising in connection with surety and reclamation bonds, reinsurance, domestic
or international trade transactions and obligations not otherwise aforementioned
relating to transactions entered into by the applicable account party in the
ordinary course of business.
1.7. NO CHANGE.
Since June 30, 1998, there has been no development or event which has
had or could reasonably be expected to have a Material Adverse Effect.
1.8. FEDERAL REGULATIONS.
No part of the Letters of Credit or the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock", within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors. If requested by any Lender or the Administrative Agent,
each Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in said Regulation U.
1.9. ERISA.
Each of the following statements is true, except to the extent that the
events or conditions causing such statements to be untrue, either individually
or in the aggregate, would not be reasonably likely to result in any liability
having a Material Adverse Effect: Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither a Credit Party nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither a Credit Party nor any Commonly Controlled Entity would become subject
to any liability under ERISA if such Credit Party or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date
4
<PAGE> 10
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent.
1.10. INVESTMENT COMPANY ACT; OTHER REGULATIONS.
No Credit Party is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Credit Party is subject to regulation under any Federal or
State statute or regulation which limits its ability to incur Indebtedness. No
director, executive officer or principal shareholder of a Credit Party or any of
its Subsidiaries is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director", "executive officer"
and "principal shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O issued by the Board of
Governors of the Federal Reserve System. None of the transactions contemplated
by this Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, or regulations issued pursuant thereto.
1.11. COMPLIANCE WITH LAW.
Each of the Company and its Consolidated Subsidiaries is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
1.12. TAXES.
Each of the Company and its Consolidated Subsidiaries has filed, or
caused to be filed, all tax returns (federal, state, provincial, local and
foreign) required to be filed and paid (a) all amounts of taxes shown thereon to
be due (including interest and penalties) and (b) all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP (if such reserves are required pursuant to
GAAP). No Credit Party is aware as of the Closing Date of any proposed tax
assessments against any of the Company and its Consolidated Subsidiaries, which
could reasonably be expected to have a Material Adverse Effect and against which
adequate reserves are not being maintained in accordance with GAAP (if such
reserves are required pursuant to GAAP).
1.13. MATERIAL SUBSIDIARIES.
Set forth on Schedule II is a complete and accurate list of all
Material Subsidiaries of the Company. Information on Schedule II includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each class
owned (directly or indirectly) by a Credit Party; and the number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of all such Material Subsidiaries is validly issued, fully paid
and
5
<PAGE> 11
non-assessable and is owned by each such Credit Party, directly or indirectly,
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). Other than as set forth in Schedule II,
no Material Subsidiary has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its Capital Stock.
Schedule II may be updated from time to time by the Company by giving written
notice thereof to the Administrative Agent.
1.14. ENVIRONMENTAL MATTERS.
(a) Except as would not have or be reasonably expected to have a
Material Adverse Effect:
(i) Each of the real properties owned by the Credit Parties
(the "Real Properties") and all operations at the Real Properties are
in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Real Properties
or the businesses operated by the Company or any of its Material
Subsidiaries (the "Businesses"), and there are no conditions relating
to the Businesses or Real Properties that would be reasonably expected
to give rise to liability under any applicable Environmental Laws.
(ii) No Credit Party has received any written notice of, or
inquiry from any Governmental Authority regarding, any violation,
alleged violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with Environmental Laws
with regard to any of the Real Properties or the Businesses, nor does
any Credit Party have knowledge or reason to believe that any such
notice is being threatened.
(iii) Hazardous Materials have not been transported or
disposed of from the Real Properties, or generated, treated, stored or
disposed of at, on or under any of the Real Properties or any other
location, in each case by, or on behalf or with the permission of, the
Company or any of its Material Subsidiaries.
(iv) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any Credit Party, threatened,
under any Environmental Law to which any Credit Party is or, to the
best knowledge of such Credit Party, will be named as a party, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Company or any of its Material Subsidiaries, the Real
Properties or the Businesses.
(v) There has been no release or, to the best knowledge of any
Credit Party, threat of release of Hazardous Materials at or from the
Real Properties, or arising from or related to the operations
(including, without limitation, disposal) of the Company or any of its
Material Subsidiaries in connection with the Real Properties or
otherwise in connection with the
6
<PAGE> 12
Businesses, in violation of, or in amounts or in a manner that could
give rise to liability under, Environmental Laws.
(vi) None of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties
in amounts or concentrations that, if released, constitute or
constituted a violation of, or would give rise to liability under,
Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries, has
assumed any liability of any Person (other than another Credit Party,
or one of its Subsidiaries) under any Environmental Law.
(b) The Company has adopted procedures that are designed to (i) ensure
that each Credit Party, each of its operations and each of the properties owned
or leased by each Credit Party remains in compliance with applicable
Environmental Laws, to the extent that the failure to comply with such
Environmental Laws would have or would be reasonably expected to have a Material
Adverse Effect, and (ii) manage, to the same extent as and in accordance with
the practices of companies engaged in the same or a similar business, any
liabilities or potential liabilities that each Credit Party, any of its
operations and each of the properties owned or leased by each Credit Party may
have under applicable Environmental Laws.
1.15. SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Agreement (including without limitation the Acquisition),
will be Solvent.
1.16. DISCLOSURE.
Neither this Agreement nor any financial statements delivered to the
Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of the Company or any of its Consolidated Subsidiaries
in connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein or herein not misleading.
1.17. NO BURDENSOME RESTRICTIONS.
Neither the Company nor any of its Material Subsidiaries is a party to
any agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could have a Material Adverse Effect.
1.18. REPRESENTATIONS AND WARRANTIES FROM MERGER AGREEMENT.
As of the Closing Date, each of the representations and warranties made
in the Merger Agreement by each of the parties thereto is true and correct in
all material respects.
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<PAGE> 13
1.19. YEAR 2000 COMPLIANCE.
Each of the Credit Parties has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' businesses and operations
(including those affected by suppliers, vendors and customers) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications may not be able to recognize and properly perform date-sensitive
functions after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. Based on the foregoing,
each Credit Party believes that all computer applications that are material to
its or any of its Subsidiaries' business and operations are reasonably expected
on a timely basis to be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000 (that is, be "Year 2000 Compliant"),
except to the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1. REVOLVING CREDIT COMMITMENTS.
(a) U.S. Revolving Loans. Subject to the terms and conditions hereof,
each U.S. Lender severally agrees, on the terms and conditions hereinafter set
forth, to make revolving credit loans ("U.S. Revolving Loans") to a Borrower, in
U.S. Dollars, from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of such
Lender's Commitment Percentage of ONE HUNDRED TWENTY MILLION DOLLARS
($120,000,000) (as such amount may be reduced pursuant to subsection 2.5 or
subsection 2.6(b)(v)(I), the "U.S. Revolving Committed Amount"); provided that
with regard to each individual U.S. Lender, the principal amount of such U.S.
Lender's pro rata share of outstanding U.S. Revolving Loans plus LOC Obligations
outstanding (plus, if applicable, such U.S. Lender's pro rata share of the
Swingline Loans) shall not exceed such U.S. Lender's Commitment Percentage of
the U.S. Revolving Committed Amount. During the Commitment Period each Borrower
may use the U.S. Revolving Committed Amount by borrowing, prepaying the U.S.
Revolving Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof; provided that in no event shall the aggregate
principal amount of all U.S. Revolving Loans plus the U.S. Lenders' pro rata
share of all Swingline Loans plus the U.S. Lenders' pro rata share of all LOC
Obligations at any one time outstanding exceed the U.S. Revolving Committed
Amount.
(b) Multicurrency Revolving Loans. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees, on the terms and conditions
hereinafter set forth, to make revolving credit loans ("Multicurrency Revolving
Loans") to a Borrower, in U.S. Dollars or in Euros, from time to time during the
Commitment Period in an aggregate principal Dollar Amount at any one time
outstanding not to exceed the amount of such Lender's Commitment Percentage of
SIX HUNDRED EIGHTY MILLION DOLLARS ($680,000,000) (as such amount may be reduced
pursuant to subsection 2.5 or subsection 2.6(b)(v)(I), the "Multicurrency
Revolving Committed Amount"); provided that with regard to each individual
Multicurrency Lender (other than
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NationsBank, N.A. with respect to Swingline Loans), the Dollar Amount of such
Multicurrency Lender's pro rata share of outstanding Multicurrency Revolving
Loans plus LOC Obligations outstanding (plus, if applicable, such Multicurrency
Lender's pro rata share of the Swingline Loans) shall not exceed such
Multicurrency Lender's Commitment Percentage of the Multicurrency Revolving
Committed Amount. During the Commitment Period each Borrower may use the
Multicurrency Revolving Committed Amount by borrowing, prepaying the
Multicurrency Revolving Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof; provided that in no event shall
the aggregate Dollar Amount with respect to principal of all Multicurrency
Revolving Loans plus the Multicurrency Lenders' pro rata share of all Swingline
Loans plus the Multicurrency Lenders' pro rata share of all LOC Obligations at
any one time outstanding exceed the Multicurrency Revolving Committed Amount.
(c) Canadian Revolving Loans. Subject to the terms and conditions
hereof, each Canadian Lender severally agrees, on the terms and conditions
hereinafter set forth, to make revolving credit loans ("Canadian Revolving
Loans") to the Canadian Borrower, in Canadian Dollars or in U.S. Dollars, from
time to time during the Commitment Period in an aggregate principal Dollar
Amount at any one time outstanding not to exceed the amount of such Lender's
Commitment Percentage of ONE HUNDRED MILLION DOLLARS ($100,000,000) (as such
amount may be reduced pursuant to subsection 2.5 or subsection 2.6(b)(v)(I), the
"Canadian Revolving Committed Amount"); provided that with regard to each
individual Canadian Lender the Dollar Amount of such Canadian Lender's pro rata
share of Canadian Revolving Loans outstanding plus the Face Amount of Bankers'
Acceptances outstanding shall not exceed such Canadian Lender's Commitment
Percentage of the Canadian Revolving Committed Amount. During the Commitment
Period the Canadian Borrower may use the Canadian Revolving Committed Amount by
borrowing, prepaying the Canadian Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof; provided
that in no event shall the aggregate Dollar Amount with respect to principal of
all Canadian Revolving Loans plus the Face Amount of all Bankers' Acceptances at
any one time outstanding exceed the Canadian Revolving Committed Amount.
(d) Loan Types. The U.S. Revolving Loans and the Multicurrency
Revolving Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or
(iii) a combination thereof, as determined by the Company and notified to the
Administrative Agent on behalf of the respective Borrower in accordance with
subsections 2.3 and 2.7, provided that (A) no U.S. Revolving Loan or
Multicurrency Revolving Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Termination Date and (B) Multicurrency Revolving
Loans that are denominated in Euros shall consist solely of Eurodollar Loans.
The Canadian Revolving Loans may from time to time be (A) if denominated in
Canadian Dollars, Canadian Base Rate Revolving Loans bearing interest based upon
the Canadian Prime Rate and (B) if denominated in U.S. Dollars, (i) Canadian
Base Rate Revolving Loans bearing interest based upon the BACAN U.S. Base Rate,
(ii) Eurodollar Loans or (iii) a combination thereof, in each case as determined
by the Canadian Borrower and notified to the Canadian Administrative Agent in
accordance with subsections 2.3 and 2.7; provided that no Canadian Revolving
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Termination Date.
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2.2. NOTES EVIDENCING REVOLVING CREDIT LOANS.
The Revolving Credit Loans made by each Lender shall be evidenced by
promissory notes of the applicable Borrowers, each substantially in the form of
Exhibit A with respect to a Borrower that is the Company or a Designated
Borrower (each, as amended, modified, restated, supplemented, extended, renewed
or replaced from time to time, a "Regular Note") and substantially in the form
of Exhibit B with respect to the Canadian Borrower (each, as amended, modified,
restated, supplemented, extended, renewed or replaced from time to time a
"Canadian Borrower Note"), with appropriate insertions as to payee , payable to
the order of such Lender and each in a principal amount that includes the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Lender to such Borrower. Each Lender is hereby authorized to record the date,
Type, currency and amount of each Revolving Credit Loan made by such Lender,
each continuation thereof, each conversion of all or a portion thereof to
another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans, the length of each Interest Period
with respect thereto, on a schedule annexed to and constituting a part of its
Note and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided, however, that the failure to
make any such recordation or an error in any such recordation shall not affect
the liability of a Borrower hereunder or under any Note. Each Note shall (a) be
dated the Closing Date and (b) provide for the payment of principal and interest
in accordance with the terms of this Agreement.
2.3. PROCEDURE FOR REVOLVING CREDIT BORROWING.
(a) U.S. Revolving Loans and Multicurrency Revolving Loans. A Borrower
may borrow under the U.S. Revolving Committed Amount or the Multicurrency
Revolving Committed Amount during the Commitment Period on any Business Day,
provided that the Company (on behalf of such Borrower) shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., Charlotte, North Carolina time, (a)
three Business Days prior to the requested Borrowing Date, if all or any part of
the requested Revolving Credit Loans are to be initially Eurodollar Loans or (b)
one Business Day prior to the requested Borrowing Date, otherwise),
substantially in the form of Exhibit F, on behalf of the respective Borrower,
specifying (i) the Revolving Committed Amount to be borrowed under (i.e., the
U.S. Revolving Committed Amount or the Multicurrency Revolving Committed
Amount), (ii) the amount to be borrowed and the requested currency, (iii) the
requested Borrowing Date, (iv) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof, and the respective amounts of each
such Type of Loan, (v) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective lengths of the initial Interest Periods
therefor and (vi) the applicable Borrower. Each borrowing under the U.S.
Revolving Committed Amount or the Multicurrency Revolving Committed Amount shall
be in an amount equal to (x) in the case of Base Rate Loans or Eurodollar Loans
denominated in U.S. Dollars, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof (or, with respect to Base Rate Loans only, if the then available
amount under the applicable Revolving Committed Amount is less than $5,000,000,
such lesser amount) and (y) in the case of Eurodollar Loans denominated in
Euros, a multiple of 1,000,000 Euros in excess of an amount of Euros having a
Dollar Amount of $5,000,000. Upon receipt of any such notice from the Company,
the Administrative Agent
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shall promptly notify each U.S. Lender or each Multicurrency Lender, as
applicable, thereof. Each U.S. Lender or each Multicurrency Lender, as
applicable, will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the applicable Borrower
at the office of the Administrative Agent specified in subsection 9.2 prior to
11:00 A.M., Charlotte, North Carolina time (or, if the borrowing is to be made
in Euros, prior to the time designated by the Administrative Agent), on the
Borrowing Date and in the currency requested by the Company in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the applicable Borrower by the Administrative Agent crediting the
account of the applicable Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the U.S.
Lenders or the Multicurrency Lenders, as applicable, and in like funds as
received by the Administrative Agent.
(b) Canadian Revolving Loans. The Canadian Borrower may borrow under
the Canadian Revolving Committed Amount during the Commitment Period on any
Business Day, provided that the Canadian Borrower shall give the Canadian
Administrative Agent irrevocable notice (which notice must be received by the
Canadian Administrative Agent prior to 11:00 A.M., Toronto, Ontario time, (a)
three Business Days prior to the requested Borrowing Date, if all or any part of
the requested Canadian Revolving Loans are to be initially Eurodollar Loans or
(b) one Business Day prior to the requested Borrowing Date, otherwise),
substantially in the form of Exhibit F, specifying (i) the amount to be borrowed
and the requested currency, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination
thereof, and the respective amounts of each such Type of Loan, and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
lengths of the initial Interest Periods therefor. Each borrowing under the
Canadian Revolving Committed Amount shall be in an amount equal to (x) in the
case of Loans denominated in U.S. Dollars, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, with respect to Base Rate Loans only, if the
then available amount under the Canadian Revolving Committed Amount is less than
$5,000,000, such lesser amount) and (y) in the case of Loans denominated in
Canadian Dollars, a multiple of C$1,000,000 in excess of an amount of Canadian
Dollars having a Dollar Amount of $5,000,000. Upon receipt of any such notice
from the Canadian Borrower, the Canadian Administrative Agent shall promptly
notify each Canadian Lender thereof. Each Canadian Lender will make the amount
of its pro rata share of each borrowing available to the Canadian Administrative
Agent for the account of the Canadian Borrower at the office of the Canadian
Administrative Agent specified in subsection 9.2 prior to 11:00 A.M., Toronto,
Ontario time, on the Borrowing Date and in the currency requested by the
Canadian Borrower in funds immediately available to the Canadian Administrative
Agent. Such borrowing will then be made available to the Canadian Borrower by
the Canadian Administrative Agent crediting the account of the Canadian Borrower
on the books of such office with the aggregate of the amounts made available to
the Canadian Administrative Agent by the Canadian Lenders and in like funds as
received by the Canadian Administrative Agent.
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2.4. FEES.
(a) Facility Fees.
(i) The Company agrees to pay to the Administrative Agent for
the account of each U.S. Lender a facility fee (the "U.S. Facility
Fee") for the period from and including the first day of the Commitment
Period to the Termination Date, computed at the Applicable Margin for
Facility Fees on the average daily amount of the U.S. Revolving
Committed Amount (whether used or unused) during the period for which
payment is made, payable quarterly in arrears on the last Business Day
of each March, June, September and December and on the Termination Date
or such earlier date as the U.S. Revolving Committed Amount shall
terminate as provided herein, commencing on the first of such dates to
occur after the date hereof.
(ii) The Company agrees to pay to the Administrative Agent for
the account of each Multicurrency Lender a facility fee (the
"Multicurrency Facility Fee") for the period from and including the
first day of the Commitment Period to the Termination Date, computed at
the Applicable Margin for Facility Fees on the average daily amount of
the Multicurrency Revolving Committed Amount (whether used or unused)
during the period for which payment is made, payable quarterly in
arrears on the last Business Day of each March, June, September and
December and on the Termination Date or such earlier date as the
Multicurrency Revolving Committed Amount shall terminate as provided
herein, commencing on the first of such dates to occur after the date
hereof.
(iii) The Company agrees to pay to the Canadian Administrative
Agent for the account of each Canadian Lender a facility fee (the
"Canadian Facility Fee") for the period from and including the first
day of the Commitment Period to the Termination Date, computed at the
Applicable Margin for Facility Fees on the average daily amount of the
Canadian Revolving Committed Amount (whether used or unused) during the
period for which payment is made, payable quarterly in arrears on the
last Business Day of each March, June, September and December and on
the Termination Date or such earlier date as the Canadian Revolving
Committed Amount shall terminate as provided herein, commencing on the
first of such dates to occur after the date hereof.
(b) Administrative Fees. The Company agrees to pay to each Agent, for
its own account, an annual administrative fee and such other fees, if any,
referred to in one or more letter agreements executed by such Agent and the
Company in connection with this Agreement.
(c) Letter of Credit Fees. In consideration of the issuance of Letters
of Credit hereunder, the Company promises to pay to the Administrative Agent for
the account of each U.S. Lender and each Multicurrency Lender a fee (the "Letter
of Credit Fee") on such Lender's Commitment Percentage (relative to the sum of
the U.S. Revolving Committed Amount and the Multicurrency Revolving Committed
Amount) of the average daily maximum amount available to be drawn under each
such standby or trade Letter of Credit computed at a per annum rate for each day
from the date of issuance to the date of expiration equal to the Applicable
Margin for Revolving Eurodollar Loans and
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Bankers' Acceptances. The Letter of Credit Fee will be payable quarterly in
arrears on the last Business Day of each March, June, September and December and
on the Termination Date or such earlier date as the U.S. Revolving Committed
Amount and the Multicurrency Revolving Committed Amount shall terminate as
provided herein for the immediately preceding quarter (or a portion thereof). In
addition to the Letter of Credit Fee, the Company promises to pay to the Issuing
Lender for its own account without sharing by the other Lenders (i) a fronting
fee of .125% per annum on the aggregate stated amount of each Letter of Credit
for the stated duration thereof, payable quarterly in arrears on the last
Business Day of each March, June, September and December and on the Termination
Date or such earlier date as the U.S. Revolving Committed Amount and the
Multicurrency Revolving Committed Amount shall terminate as provided herein for
the immediately preceding quarter (or a portion thereof) and (ii) the customary
charges from time to time of the Issuing Lender with respect to the amendment,
transfer, administration, cancellation and conversion of, and drawings under,
such Letters of Credit.
2.5. TERMINATION OR REDUCTION OF A REVOLVING COMMITTED AMOUNT.
The Company shall have the right, upon not less than five Business
Days' notice to the Agents, to terminate a Revolving Committed Amount or, from
time to time, to reduce the amount of a Revolving Committed Amount, provided,
that the Borrowers comply with any applicable provisions of subsection
2.6(b)(i). Any such reduction of a Revolving Committed Amount shall be in an
amount equal to $5,000,000 (or, if the then available amount of such Revolving
Committed Amount is less than $5,000,000, such lesser amount) or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently such
Revolving Committed Amount then in effect. Notwithstanding anything above to the
contrary, any termination or permanent reduction of a Revolving Committed Amount
must be done on a basis such that the U.S. Revolving Committed Amount, the
Multicurrency Revolving Committed Amount and the Canadian Revolving Committed
Amount reduce simultaneously on a pro rata basis.
2.6. PREPAYMENTS; PAYMENTS ON RESTATEMENT EFFECTIVE DATE.
(a) Optional Prepayments. A Borrower may on the last day of any
Interest Period with respect thereto, in the case of Eurodollar Loans, or at any
time and from time to time, in the case of Base Rate Loans, prepay the Revolving
Credit Loans or Term Loans, in whole or in part, without premium or penalty, in
the respective currencies in which such Loans were made, upon irrevocable notice
to the Administrative Agent or the Canadian Administrative Agent, as applicable
(which notice must be received by the applicable Agent prior to 11:00 A.M.,
Charlotte, North Carolina time or Toronto, Ontario time, as applicable, (i) four
Business Days prior to the prepayment date if all or any part of the Loans to be
prepaid consists of Eurodollar Loans and (ii) one Business Day prior to the
prepayment date, otherwise), specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, Base Rate Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the applicable Agent shall promptly notify each
applicable Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with any amounts payable pursuant to subsection 3.5 and interest on the
principal amount prepaid through the date of prepayment. Partial prepayments of
Loans
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under a given Revolving Committed Amount or Term Loan Tranche shall be in an
aggregate principal amount of (x) with respect to Loans denominated in U.S.
Dollars, $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (y)
with respect to Loans denominated in a Foreign Currency, a multiple of 1,000,000
Euros or Canadian Dollars, as applicable, in excess of an amount of such Foreign
Currency having a Dollar Amount of $5,000,000. Subject to the foregoing terms,
amount prepaid under this subsection 2.6(a) shall be applied as the applicable
Borrower may elect; provided that if a Borrower fails to specify the application
of a voluntary prepayment then such prepayment shall be applied first to
Revolving Loans and then ratably to the Term Loan Tranches (in each case pro
rata across amortization payment maturities) in each case first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
(b) Mandatory Prepayments.
(i) Commitment Limitations. If at any time, (A) the aggregate
principal Dollar Amount of U.S. Revolving Loans plus Multicurrency
Revolving Loans plus Swingline Loans plus LOC Obligations shall exceed
the sum of the U.S. Revolving Committed Amount plus the Multicurrency
Revolving Committed Amount at such time, (B) the aggregate principal
amount of U.S. Revolving Loans plus the U.S. Lenders' pro rata share of
Swingline Loans plus the U.S. Lenders' pro rata share of LOC
Obligations shall exceed the U.S. Revolving Committed Amount, (C) the
aggregate principal Dollar Amount of Multicurrency Revolving Loans plus
the Multicurrency Lenders' pro rata share of Swingline Loans plus the
Multicurrency Lenders' pro rata share of LOC Obligations shall exceed
the Multicurrency Revolving Committed Amount, (D) the aggregate amount
of Swingline Loans shall exceed the Swingline Committed Amount, (E) the
aggregate amount of LOC Obligations shall exceed the LOC Committed
Amount, (F) the aggregate Dollar Amount with respect to principal of
Canadian Revolving Loans plus the Face Amount of Bankers' Acceptances
shall exceed the Canadian Revolving Committed Amount at such time or
(G) the aggregate principal Dollar Amount of Loans outstanding under a
Term Loan Tranche shall exceed the original principal amount of such
Term Loan Tranche, the Borrowers shall immediately make payment on the
Revolving Credit Loans, Swingline Loans, Term Loans and/or to a cash
collateral account in respect of the LOC Obligations or BA Revolving
Obligations, in an amount sufficient to eliminate the excess.
(ii) Asset Dispositions. For so long as any Term Loan is
outstanding, within 180 days of any Asset Disposition that is a Covered
Transaction (whether in a single transaction or in a series of related
transactions), the Borrowers shall prepay the Term Loans in an
aggregate amount equal to the Net Cash Proceeds of the related Asset
Disposition not applied (or caused to be applied) by the Company and
its Consolidated Subsidiaries during such 180 day period to make
Eligible Reinvestments (such prepayment to be applied as set forth in
clause (v) below).
(iii) Receivables Financings/Debt Issuances.
(A) Immediately upon receipt by the Company or any
Consolidated Subsidiary of proceeds from any Permitted
Receivables Financing, the Borrowers shall prepay the Loans in
an aggregate amount equal to 100% of the Net Cash Proceeds of
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such Permitted Receivables Financing (such prepayment to be
applied as set forth in clause (v) below).
(B) For so long as any Term Loan is outstanding,
immediately upon receipt by the Company or any Consolidated
Subsidiary of proceeds from any Debt Issuance in excess of
$25,000,000 (whether in a single transaction or in a series of
related transactions), the Borrowers shall prepay the Term
Loans in an aggregate amount equal to 100% of the Net Cash
Proceeds of such Debt Issuance (such prepayment to be applied
as set forth in clause (v) below).
(iv) Issuances of Equity. For so long as any Term Loan is
outstanding, immediately upon receipt by the Company or any
Consolidated Subsidiary of proceeds from any Equity Issuance other than
the Initial Hybrid Equity Transaction, the Borrowers shall prepay the
Term Loans in an aggregate amount equal to 100% of the Net Cash
Proceeds of such Equity Issuance (such prepayment to be applied as set
forth in clause (v) below).
(v) Application of Mandatory Prepayments. All amounts required
to be paid pursuant to this subsection 2.6(b) shall be applied as
follows: (A) with respect to all amounts prepaid pursuant to subsection
2.6(b)(i)(A), to U.S. Revolving Loans, Multicurrency Revolving Loans
and/or Swingline Loans and (after all such Loans have been repaid) to a
cash collateral account in respect of LOC Obligations, (B) with respect
to all amounts prepaid pursuant to subsection 2.6(b)(i)(B), to U.S.
Revolving Loans and/or Swingline Loans and (after all such Loans have
been repaid) to a cash collateral account in respect of LOC
Obligations, (C) with respect to all amounts prepaid pursuant to
subsection 2.6(b)(i)(C), to Multicurrency Revolving Loans and/or
Swingline Loans and (after all such Loans have been repaid) to a cash
collateral account in respect of LOC Obligations, (D) with respect to
all amounts prepaid pursuant to subsection 2.6(b)(i)(D), to Swingline
Loans, (E) with respect to all amounts prepaid pursuant to subsection
2.6(b)(i)(E), to a cash collateral account in respect of LOC
Obligations, (F) with respect to all amounts prepaid pursuant to
subsection 2.6(b)(i)(F), to Canadian Revolving Loans and (after all
such Loans have been repaid) to a cash collateral account in respect of
BA Obligations in accordance with subsection 2.18(g), (G) with respect
to all amounts prepaid pursuant to subsection 2.6(b)(i)(G), to Term
Loans under the applicable Term Loan Tranche (and if the Term Loan
being prepaid is the Tranche A Term Loan, then such payments shall be
applied pro rata across amortization payment maturities), (H) with
respect to all amounts prepaid pursuant to subsections 2.6(b)(ii),
2.6(b)(iii)(B) and 2.6(b)(iv), first to reduce the Tranche B Term Loan,
second to reduce the Tranche C Term Loan and third to reduce the
Tranche A Term Loan (such reduction of the Tranche A Term Loan to be
pro rata across amortization payment maturities), and (I) with respect
to all amounts prepaid pursuant to subsection 2.6(b)(iii)(A), first to
Revolving Credit Loans (pro rata among U.S. Revolving Loans,
Multicurrency Revolving Loans and Canadian Revolving Loans) and to
permanently reduce the Revolving Committed Amounts (on a pro rata
basis), second to reduce the Tranche B Term Loan, third to reduce the
Tranche C Term Loan and fourth to reduce the Tranche A Term Loan (such
reduction of the Tranche A Term Loan to be pro rata across amortization
payment maturities). Within the parameters of the applications set
forth above, prepayments shall be applied first to Base Rate Loans and
then to
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Eurodollar Loans in direct order of Interest Period maturities.
All prepayments under this subsection 2.6(b) shall be subject to
subsection 3.5 and be accompanied by interest on the principal amount
prepaid through the date of prepayment.
(c) Mandatory Payments on Restatement Effective Date. On the
Restatement Effective Date, the Borrowers shall repay (i) all Revolving Credit
Loans outstanding under the Existing Credit Agreement and (ii) all obligations
outstanding under that certain C$220,000,000 Promissory Note dated January 19,
1999 executed by the Canadian Borrower in favor of Bank of America Canada. It is
understood that such repayments may be made with the proceeds of borrowings
funded under this Agreement on the Restatement Effective Date in accordance with
the borrowing procedures set forth in subsection 2.3 hereof.
2.7. CONVERSION AND CONTINUATION OPTIONS.
(a) A Borrower may elect from time to time to convert Eurodollar Loans
denominated in U.S. Dollars to Base Rate Loans denominated in U.S. Dollars by
the Company (on behalf of a Borrower other than the Canadian Borrower) or the
Canadian Borrower, as applicable, giving the applicable Agent at least three
Business Days' prior irrevocable notice of such election on behalf of the
respective Borrower, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto. A
Borrower may elect from time to time to convert Revolving Credit Loans or Term
Loans that are Base Rate Loans denominated in U.S. Dollars to Eurodollar Loans
denominated in U.S. Dollars by the Company (on behalf of a Borrower other than
the Canadian Borrower) or the Canadian Borrower, as applicable, giving the
applicable Agent at least three Business Days' prior irrevocable notice of such
election on behalf of the respective Borrower. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the applicable Agent
shall promptly notify each applicable Lender thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be converted as provided
herein, provided that (i) no Base Rate Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing, (ii) no Base Rate
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date and (iii) no Loan may be converted to a Loan in a
different currency.
(b) Any Eurodollar Loan may be continued as a Eurodollar Loan in the
same currency upon the expiration of the then current Interest Period with
respect thereto by the Company (on behalf of a Borrower other than the Canadian
Borrower) or the Canadian Borrower, as applicable, giving notice to the
applicable Agent on behalf of the respective Borrower, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 7, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing or (ii) after the date that is one month prior to
the Termination Date and provided, further, that if the Company (on behalf of a
Borrower other than the Canadian Borrower) or the Canadian Borrower, as
applicable, shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso, (A) such Loans denominated in U.S. Dollars shall be automatically
converted to Base Rate Loans bearing interest based upon the
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ABR or the BACAN U.S. Base Rate, as applicable, and (B) such Loans denominated
in Euros shall be automatically continued for a like Interest Period, in each
case on the last day of such then expiring Interest Period, except that if such
last day of such then expiring Interest Period is within one month of the
Termination Date, then any such Loans denominated in Euros shall be
automatically redenominated in U.S. Dollars and converted to ABR Loans.
(c) The Canadian Borrower shall have the option, on any Business Day,
to convert a Canadian Base Rate Revolving Loan denominated in Canadian Dollars
into a Bankers' Acceptance, to continue a maturing Bankers' Acceptance in
accordance with subsection 2.18 or to convert a maturing Bankers' Acceptance
into a Canadian Base Rate Revolving Loan denominated in Canadian Dollars;
provided, however, (i) each such continuation or conversion must be requested by
the Canadian Borrower pursuant to an irrevocable notice to the Canadian
Administrative Agent, substantially in the form of Exhibit F, in compliance with
the terms set forth below, (ii) the Canadian Borrower must comply with all the
requirements of subsection 2.18, and (iii) failure by the Canadian Borrower to
properly continue a Bankers' Acceptance shall be deemed a conversion to a Base
Rate Loan. Each continuation or conversion must be requested by the Canadian
Borrower no later than 11:00 A.M., Toronto, Ontario time, (A) two Business Days
prior to the date of a requested conversion of a Bankers' Acceptance to a Base
Rate Loan or (B) two Business Days prior to the date of a requested continuation
of a Bankers' Acceptance or conversion of a Base Rate Loan to a Bankers'
Acceptance, in each case pursuant to an irrevocable notice submitted to the
Canadian Administrative Agent which shall set forth (x) that the Loans to be
continued or converted are Canadian Revolving Loans, (y) whether the Canadian
Borrower wishes to continue or convert such Loans and (z) if the request is to
continue a Bankers' Acceptance or convert a Base Rate Loan to a Bankers'
Acceptance, the maturity date applicable thereto. The Canadian Administrative
Agent shall give each Canadian Lender notice as promptly as practicable of any
such proposed continuation or conversion pursuant to this section.
2.8. MINIMUM AMOUNTS OF TRANCHES AND MAXIMUM NUMBER OF
EURODOLLAR LOANS.
All borrowings, conversions and continuations of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to a multiple of $1,000,000 or 1,000,000
Euros, as applicable, in excess of an amount of the applicable currency having a
Dollar Amount of $5,000,000. Notwithstanding anything in this Agreement to the
contrary, (a) no more than five (5) Eurodollar Loans shall be outstanding under
the Canadian Revolving Committed Amount at any time and (b) no more than ten
(10) Eurodollar Loans shall be outstanding under the other Revolving Committed
Amounts and the Term Loan Tranches, collectively, at any time (it being
understood that, for purposes hereof, Eurodollar Loans with different Interest
Periods shall be considered as separate Eurodollar Loans, even if they begin on
the same date, although borrowings, continuations and conversions may, in
accordance with the provisions hereof, be combined at the end of existing
Interest Periods to constitute a new Eurodollar Loan with a single Interest
Period).
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2.9. INTEREST RATES AND PAYMENT DATES.
(a) Each Revolving Eurodollar Loan shall bear interest for each
Interest Period with respect thereto at a rate per annum equal to the Eurodollar
Rate determined for such Interest Period plus the Applicable Margin for
Revolving Eurodollar Loans and Bankers' Acceptances, payable in the same
currency in which the principal amount of such Loan was denominated during the
relevant Interest Period.
(b) Each Term Eurodollar Loan shall bear interest for each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin for Term
Eurodollar Loans, payable in the same currency in which the principal amount of
such Loan was denominated during the relevant Interest Period.
(c) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin for Base Rate Loans.
(d) Each Canadian Base Rate Revolving Loan made in Canadian Dollars
shall accrue interest at the Canadian Prime Rate plus the Applicable Margin for
Base Rate Loans, payable in Canadian Dollars. Each Canadian Base Rate Revolving
Loan made in U.S. Dollars shall accrue interest at the BACAN U.S. Base Rate plus
the Applicable Margin for Base Rate Loans, payable in U.S. Dollars.
(e) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any Facility Fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any overdue interest, Facility Fee or
other amount, the rate described in paragraph (c) of this subsection 2.9 plus
2%, in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(f) Interest on the Revolving Credit Loans and the Term Loans shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (e) of this subsection 2.9 shall be payable from
time to time on demand.
(g) The principal amount of, and any unpaid interest on, all Loans
shall be due and payable in full (i) in the case of Revolving Credit Loans, on
the Termination Date and (ii) in the case of Term Loans, on the respective final
maturity dates specified in subsection 2.17(d), in each case unless accelerated
sooner pursuant to subsection 6.1 or unless subject to a mandatory prepayment
required by subsection 2.6(b).
(h) The Swingline Loans shall bear interest, and such interest shall be
payable, as specified in subsection 2.15(c).
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2.10. COMPUTATION OF INTEREST AND FEES.
(a) Unless otherwise specifically provided herein, Facility Fees and
interest shall be calculated on the basis of a 360-day year for the actual days
elapsed, except with respect to computation of interest on Base Rate Loans
determined by reference to the Prime Rate (as defined in the definition of
"ABR"), the BACAN U.S. Prime Rate or the Canadian Prime Rate, which shall be
calculated based on a year of 365 or 366 days, as appropriate. The Agents shall
as soon as practicable notify the Company and the applicable Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR, BACAN U.S. Base Rate, Canadian Prime Rate or
the Eurocurrency Reserve Requirements shall become effective as of the opening
of business on the day on which such change becomes effective. The applicable
Agent shall as soon as practicable notify the Company and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by an Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Credit
Parties and the Lenders in the absence of manifest error. Each Agent shall, at
the request of the Company, deliver to the Company a statement showing the
quotations used by such Agent in determining any interest rate pursuant to
subsection 2.9(a).
(c) For purposes of the Interest Act (Canada), if interest computed on
the basis of a 360-day year is payable for any part of a calendar year, the
equivalent yearly rate of interest may be determined by multiplying the
specified rate of interest by the number of days (365 or 366) in such calendar
year and dividing such product by 360.
2.11. PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing of Revolving Credit Loans or Term Loans by a
Borrower from the Lenders hereunder, each payment by the Company on account of
the Facility Fees and the Letter of Credit Fee hereunder and any reduction of
the Commitments of the Lenders shall be made pro rata according to the
respective Commitment Percentages of the applicable Lenders. Each payment
(including each prepayment) by a Borrower or another Credit Party on account of
principal of and interest on the Revolving Credit Loans, Term Loans or other
extensions of credit shall be made pro rata according to the respective amounts
of principal and interest then due and owing to the applicable Lenders. All
payments of principal, interest and fees in connection with the Canadian
Revolving Loans shall be made by the Credit Parties to the Canadian
Administrative Agent on the date due by 11:00 A.M., Toronto, Ontario time (in
Canadian Dollars or U.S. Dollars, as applicable) in immediately available funds,
without setoff or counterclaim. All other payments (including prepayments) to be
made by a Borrower or another Credit Party hereunder and under the Notes,
whether on account of principal, interest, fees or otherwise, shall be made
without set off or counterclaim and shall be made prior to 11:00 A.M.,
Charlotte, North Carolina time, on the due date thereof to the Administrative
Agent, for the account of the applicable Lenders (unless such payment is for the
Administrative Agent's own account) at the Administrative Agent's office
specified in subsection 9.2, in U.S. Dollars or in Euros, as applicable, and in
immediately available funds. If applicable, each Agent shall distribute such
payments to the applicable Lenders promptly
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upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Unless the Administrative Agent or the Canadian Administrative
Agent, as applicable, shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its
portion of such borrowing available to such Agent, such Agent may assume that
such Lender is making such amount available to such Agent, and such Agent may,
in reliance upon such assumption, make available to the respective Borrower a
corresponding amount. If the Administrative Agent or the Canadian Administrative
Agent, as applicable, in such circumstances, makes available to such Borrower
such corresponding amount and such Lender does not make available such ratable
portion of such borrowing to such Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to such Agent, on demand, its portion of
such borrowing with interest thereon at a rate equal to the Federal Funds
Effective Rate (as defined in the definition of "ABR") for the period until such
Lender makes such amount immediately available to such Agent. A certificate of
the applicable Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's portion of such borrowing is not made available to the applicable
Agent by such Lender within three Business Days of such Borrowing Date, such
Agent, having made available to the respective Borrower a corresponding amount,
shall also be entitled to recover such corresponding amount with interest
thereon at the rate per annum applicable to ABR Loans, on demand, from such
Borrower. Nothing contained in this subsection 2.11(b) shall relieve any Lender
which has failed to make available its portion of any borrowing hereunder from
its obligation to do so in accordance with the terms hereof.
2.12. TAXES.
(a) All payments made by a Credit Party under this Agreement and
the Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on an Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than to the extent any such connection arose
from such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or the
Notes). If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to an Agent or any Lender hereunder or under the Notes,
the amounts so payable to such Agent or such Lender
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shall be increased to the extent necessary to yield to such Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes; provided, however, that no Credit Party shall be required to increase
any such amounts payable to any Lender that is not organized under the laws of
the United States of America or a state thereof if such Lender fails to comply
with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by a Credit Party, as promptly as possible
thereafter such Credit Party shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Credit Party showing payment
thereof. If a Credit Party fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Credit Party
shall indemnify the Agents and the Lenders for any incremental taxes, interest
or penalties that may become payable by an Agent or any Lender as a result of
any such failure. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Foreign Lender") shall:
(i) deliver to the Company and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be;
(ii) deliver to the Company and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company;
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Company or the Administrative Agent; and
(iv) otherwise cooperate, to the extent not detrimental to its
own interests, with the Company in reducing or eliminating withholding
or deducting with respect to any Non-Excluded Taxes;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Company and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 4224,
that the payments it receives from the Company under this Agreement are
effectively connected with a trade or business in the United States and, in the
case of a Form 1001, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States
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federal income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each Person
that shall become a Lender or a Participant pursuant to subsection 9.6 shall,
upon the effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this subsection, provided that in
the case of a Participant such Participant shall furnish all such required forms
and statements to the Lender from which the related participation shall have
been purchased.
(c) No Credit Party shall be required to indemnify any Foreign
Lender or to pay any additional amounts to any Foreign Lender in respect of
United States Federal withholding tax pursuant to paragraph (a) or (b) above to
the extent that the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Foreign Lender became a party
to this Agreement and such Credit Party was on such date a party to whom the
applicable Foreign Lender was obligated to extend credit under this Agreement.
2.13. DESIGNATED BORROWERS.
(a) Addition of Designated Borrowers. The Company may request
designation of any of its wholly-owned Material Subsidiaries (an "Applicant
Borrower") as a Designated Borrower hereunder by delivery of such a request to
the Administrative Agent together with an executed copy of a Borrower Joinder
Agreement in substantially the form attached as Exhibit D. The Administrative
Agent will promptly notify the U.S. Lenders and the Multicurrency Lenders of any
such request together with a copy of the Borrower Joinder Agreement executed by
the Applicant Borrower. The joinder of each Applicant Borrower as a Designated
Borrower will be subject to delivery of executed promissory notes, if any,
required in connection therewith, and supporting resolutions, articles of
incorporation, incumbency certificates, opinions of counsel of the type required
pursuant to subsection 4.1 and such other items as the Administrative Agent
and/or the Required Lenders may reasonably request. Any such addition of a
Designated Borrower shall be effective five Business Days after receipt by the
Administrative Agent of the items required by the Administrative Agent and the
Required Lenders in connection therewith. Such Designated Borrower shall
thereupon become a party thereto and a Designated Borrower hereunder and shall
be (i) entitled to all rights and benefits of a Borrower hereunder and under
each instrument executed pursuant hereto and (ii) subject to all obligations of
a Borrower hereunder and thereunder.
(b) Removal of a Borrower. The Company may request that any of its
Subsidiaries which is a Borrower hereunder (other than the Canadian Borrower)
cease to be a Borrower by delivering to the Administrative Agent (which shall
promptly deliver copies thereof to each U.S. Lender and each Multicurrency
Lender) a written notice to such effect. Such Borrower shall cease to be a
Borrower hereunder on the later to occur of (i) the date the Administrative
Agent receives such request and (ii) the date such Borrower has paid all of its
Loans and all accrued and unpaid interest, fees and other obligations hereunder
or in connection herewith.
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2.14. SEVERAL LIABILITY OF BORROWERS.
The obligations of the Borrowers, as Borrowers, are several and not
joint obligations of each of the Borrowers.
2.15. SWINGLINE LOAN SUBFACILITY.
(a) Swingline Commitment. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein, the
Swingline Lender, in its individual capacity, agrees to make certain revolving
credit loans requested by the Company in U.S. Dollars to the Company (each a
"Swingline Loan" and, collectively, the "Swingline Loans") from time to time
during the Commitment Period for the purposes hereinafter set forth; provided,
however, (i) the aggregate principal amount of Swingline Loans outstanding at
any time shall not exceed FIFTY MILLION DOLLARS ($50,000,000) (the "Swingline
Committed Amount"), and (ii) the aggregate Dollar Amount with respect to
principal of outstanding U.S. Revolving Loans plus outstanding Multicurrency
Revolving Loans plus outstanding Swingline Loans plus all LOC Obligations shall
not exceed the sum of the U.S. Revolving Committed Amount plus the Multicurrency
Revolving Committed Amount. Swingline Loans hereunder shall be made as ABR Loans
in accordance with the provisions of this subsection 2.15, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Company desires a
Swingline Loan advance hereunder it shall give written notice (or
telephonic notice promptly confirmed in writing) to the Swingline
Lender not later than 1:00 P.M. (Charlotte, North Carolina time) on the
Business Day of the requested Swingline Loan advance. Each such notice
shall be irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline Loan
advance (which shall be a Business Day) and (C) the principal amount of
the Swingline Loan advance requested. Each Swingline Loan shall be made
as an ABR Loan and shall have such maturity date as the Swingline
Lender and the Company shall agree upon receipt by the Swingline Lender
of any such notice from the Company. The Swingline Lender shall
initiate the transfer of funds representing the Swingline Loan advance
to the Company by 3:00 P.M. (Charlotte, North Carolina time) on the
Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in
a minimum principal amount of $1,000,000 and in integral multiples of
$500,000 in excess thereof (or the remaining amount of the Swingline
Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of
all Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the Swingline Lender and the Company with
respect to such Loan (which maturity date shall not be a date more than
twenty-eight (28) Business Days from the date of advance thereof) or
(B) the Termination Date. The Swingline Lender may, at any time, in its
sole discretion, by written
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notice to the Company, the U.S. Lenders and the Multicurrency Lenders,
demand repayment of its Swingline Loans advanced in accordance with the
terms hereof by way of a U.S. Revolving Loan advance and a
Multicurrency Revolving Loan advance on the Business Day following the
date of such notice, in which case the Company shall be deemed to have
requested a U.S. Revolving Loan advance and a Multicurrency Revolving
Loan advance (such advances to be made under the U.S. Revolving
Committed Amount and the Multicurrency Revolving Committed Amount on a
pro rata basis based on the amount of each such Revolving Committed
Amount) comprised solely of ABR Loans in the amount of such Swingline
Loans; provided, however, that any such demand shall be deemed to have
been given one Business Day prior to the Termination Date and on the
date of the occurrence of any Event of Default described in subsection
6.1(f) or subsection 6.1(g) and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the
provisions of subsection 6.1. Each U.S. Lender and each Multicurrency
Lender hereby irrevocably agrees to make its pro rata share of each
such Revolving Credit Loan in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (I) the amount of
such borrowing may not comply with the minimum amount for advances of
Revolving Credit Loans otherwise required hereunder, (II) whether any
conditions specified in subsection 4.2 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure of
any such request or deemed request for Revolving Credit Loan to be made
by the time otherwise required hereunder, (V) whether the date of such
borrowing is a date on which Revolving Credit Loans are otherwise
permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or contemporaneously
with such borrowing. In the event that any U.S. Revolving Loan or any
Multicurrency Revolving Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Federal Bankruptcy Code (as
now or hereafter in effect) with respect to the Company or any other
Borrower), then each U.S. Lender and each Multicurrency Lender hereby
agrees that it shall forthwith purchase (as of the date such borrowing
would otherwise have occurred, but adjusted for any payments received
from the Company on or after such date and prior to such purchase) from
the Swingline Lender such Participation Interest in the outstanding
Swingline Loans as shall be necessary to cause each such U.S. Lender
and Multicurrency Lender to share in such Swingline Loans ratably based
upon its respective Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to subsection
2.5), provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the date as of
which the respective Participation Interest is purchased and (B) at the
time any purchase of Participation Interests pursuant to this sentence
is actually made, the purchasing Lender shall be required to pay to the
Swingline Lender, to the extent not paid to the Swingline Lender by the
Company in accordance with the terms of subsection (c)(ii) below,
interest on the principal amount of Participation Interests purchased
for each day from and including the day upon which such purchase of
Participation Interests would otherwise have occurred to but excluding
the date of actual payment for the purchase of such Participation
Interests, at the rate equal to the Federal Funds Effective Rate (as
defined in the definition of "ABR").
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(c) Interest on Swingline Loans.
(i) Subject to the provisions of subsection 2.9(e)(ii), each
Swingline Loan shall bear interest at a per annum rate (computed on the
basis of the actual number of days elapsed over a year of 360 or
365/366 days, as appropriate in accordance with the provisions of
subsection 2.10(a)) equal to the ABR plus the Applicable Margin for
Base Rate Loans.
(ii) Payment of Interest. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein), unless accelerated sooner
pursuant to subsection 6.1.
(d) Note Evidencing Swingline Loans. The Swingline Loans shall be
evidenced by a duly executed Regular Note of the Company to the Swingline Lender
in an original principal amount that includes the aggregate unpaid principal
amount of all Swingline Loans.
2.16. LETTER OF CREDIT SUBFACILITY.
(a) Issuance. The Issuing Lender has heretofore issued the Existing
Letters of Credit. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender
may reasonably require and in reliance upon the representations and warranties
set forth herein, the Issuing Lender agrees to issue, and each U.S. Lender and
each Multicurrency Lender severally agrees to participate in the issuance by the
Issuing Lender of, standby and trade Letters of Credit in U.S. Dollars from time
to time during the Commitment Period as the Company may request, in a form
acceptable to the Issuing Lender; provided, however, that (i) the LOC
Obligations outstanding shall not at any time exceed ONE HUNDRED MILLION DOLLARS
($100,000,000) (the "LOC Committed Amount") and (ii) the aggregate Dollar Amount
with respect to principal of outstanding U.S. Revolving Loans plus outstanding
Multicurrency Revolving Loans plus outstanding Swingline Loans plus all LOC
Obligations shall not exceed the sum of the U.S. Revolving Committed Amount plus
the Multicurrency Revolving Committed Amount. No Letter of Credit shall (x) have
an original expiry date more than one year from the date of issuance (other than
an Existing Letter of Credit) or (y) as originally issued or as extended, have
an expiry date extending beyond the Termination Date. Each Letter of Credit
shall comply with the related LOC Documents. The issuance and expiry dates of
each Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Company to the Issuing Lender at least three
(3) Business Days prior to the requested date of issuance. The Issuing Lender
will, at least quarterly and more frequently upon request, disseminate to each
of the U.S. Lenders and each of the Multicurrency Lenders a detailed report
specifying the Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of the
prior report, and including therein, among other things, the beneficiary, the
face amount and the expiry date, as well as any payment or expirations which may
have occurred.
(c) Participation. Each U.S. Lender and each Multicurrency Lender, upon
issuance of a Letter of Credit, shall be deemed to have purchased without
recourse a Participation Interest from the
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Issuing Lender in such Letter of Credit and the obligations arising thereunder
and any collateral relating thereto, in each case in an amount equal to its pro
rata share of the obligations under such Letter of Credit (based on the
respective Commitment Percentages of the U.S. Lenders and the Multicurrency
Lenders) and shall absolutely, unconditionally and irrevocably assume and be
obligated to pay to the Issuing Lender and discharge when due, its pro rata
share of the obligations arising under such Letter of Credit in accordance with
subsection 2.16(d) below. Without limiting the scope and nature of each U.S.
Lender's and each Multicurrency Lender's Participation Interest in any Letter of
Credit, to the extent that the Issuing Lender has not been reimbursed as
required hereunder or under any such Letter of Credit, each such Lender shall
pay to the Issuing Lender its pro rata share of such unreimbursed drawing in
same day funds on the day of notification by the Issuing Lender of an
unreimbursed drawing pursuant to the provisions of subsection (d) below. The
obligation of each U.S. Lender and each Multicurrency Lender to so reimburse the
Issuing Lender shall be absolute and unconditional and shall not be affected by
the occurrence of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Company to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Company. Unless the Company
shall immediately notify the Issuing Lender that the Company intends to
otherwise reimburse the Issuing Lender for such drawing, the Company shall be
deemed to have requested that the U.S. Lenders and the Multicurrency Lenders
make Revolving Credit Loans totaling the amount of the drawing as provided in
subsection (e) below on the related Letter of Credit, the proceeds of which will
be used to satisfy the related reimbursement obligations. The Company promises
to reimburse the Issuing Lender on the day of drawing under any Letter of Credit
(either with the proceeds of Revolving Credit Loans obtained hereunder or
otherwise) in same day funds. If the Company shall fail to reimburse the Issuing
Lender as provided hereinabove, the unreimbursed amount of such drawing shall
bear interest at a per annum rate equal to the ABR plus the Applicable Margin
for Base Rate Loans plus 2%. The Company's reimbursement obligations hereunder
shall be absolute and unconditional under all circumstances irrespective of any
rights of setoff, counterclaim or defense to payment the Company may claim or
have against the Issuing Lender, the Administrative Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of the Company or any of its
Consolidated Subsidiaries to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing Lender will
promptly notify the U.S. Lenders and the Multicurrency Lenders of the amount of
any unreimbursed drawing and each U.S. Lender and each Multicurrency Lender
shall promptly pay to the Administrative Agent for the account of the Issuing
Lender in U.S. Dollars and in immediately available funds, the amount of such
Lender's pro rata share of such unreimbursed drawing. Such payment shall be made
on the day such notice is received by such Lender from the Issuing Lender if
such notice is received at or before 2:00 P.M. (Charlotte, North Carolina time)
otherwise such payment shall be made at or before 12:00 Noon (Charlotte, North
Carolina time) on the Business Day next succeeding the day such notice is
received. If such Lender does not pay such amount to the Issuing Lender in full
upon such request, such Lender shall, on demand, pay to the Administrative Agent
for the account of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Lender pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within two (2)
Business Days of the date that such Lender is required to make payments of such
amount pursuant to the preceding sentence, the
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<PAGE> 32
Federal Funds Effective Rate (as defined in the definition of "ABR") and
thereafter at a rate equal to the ABR. Each U.S. Lender's and each Multicurrency
Lender's obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and unconditional,
shall not be affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations of the
Company hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such payment by
a Lender to the Issuing Lender, such Lender shall, automatically and without any
further action on the part of the Issuing Lender or such Lender, acquire a
Participation Interest in an amount equal to such payment (excluding the portion
of such payment constituting interest owing to the Issuing Lender) in the
related unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim against the
Company with respect thereto.
(e) Repayment with Revolving Credit Loans. On any day on which the
Company shall have requested, or been deemed to have requested, a U.S. Revolving
Loan advance and a Multicurrency Revolving Loan Advance to reimburse a drawing
under a Letter of Credit, the Administrative Agent shall give notice to the U.S.
Lenders and the Multicurrency Lenders that a U.S. Revolving Loan and a
Multicurrency Revolving Loan (such loans to be made under the U.S. Revolving
Committed Amount and the Multicurrency Revolving Committed Amount on a pro rata
basis based on the amount of each such Revolving Committed Amount) have been
requested or deemed requested by the Company to be made in connection with a
drawing under a Letter of Credit, in which case a U.S. Revolving Loan advance
and a Multicurrency Revolving Loan advance, each comprised of ABR Loans (or
Eurodollar Loans denominated in U.S. Dollars to the extent the Company has
complied with the procedures of subsection 2.3(a) with respect thereto), shall
be immediately made to the Company by all U.S. Lenders and all Multicurrency
Lenders, as applicable (notwithstanding any termination of the Commitments
pursuant to subsection 6.1), pro rata based on their respective Commitment
Percentages (determined before giving effect to any termination of the
Commitments pursuant to subsection 6.1) and the proceeds thereof shall be paid
directly to the Issuing Lender for application to the respective LOC
Obligations. Each such Lender hereby irrevocably agrees to make its pro rata
share of each such Revolving Credit Loan immediately upon any such request or
deemed request in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (i) the amount of such borrowing may not
comply with the minimum amount for advances of Revolving Credit Loans otherwise
required hereunder, (ii) whether any conditions specified in subsection 4.2 are
then satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
failure for any such request or deemed request for Revolving Credit Loan to be
made by the time otherwise required hereunder, (v) whether the date of such
borrowing is a date on which Revolving Credit Loans are otherwise permitted to
be made hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the event that
any U.S. Revolving Loan or any Multicurrency Revolving Loan cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Company or any of its Consolidated Subsidiaries), then
each such Lender hereby agrees that it shall forthwith purchase (as of the date
such borrowing would otherwise have occurred, but adjusted for any payments
received from the Company on or after such date and prior to such purchase) from
the Issuing Lender such Participation Interests in the outstanding LOC
27
<PAGE> 33
Obligations as shall be necessary to cause each such U.S. Lender and
Multicurrency Lender to share in such LOC Obligations ratably (based upon the
respective Commitment Percentages of such Lenders (determined before giving
effect to any termination of the Commitments pursuant to subsection 6.1)),
provided that at the time any purchase of Participation Interests pursuant to
this sentence is actually made, the purchasing Lender shall be required to pay
to the Issuing Lender, to the extent not paid to the Issuer by the Company in
accordance with the terms of subsection (d) above, interest on the principal
amount of Participation Interests purchased for each day from and including the
day upon which such borrowing would otherwise have occurred to but excluding the
date of payment for such Participation Interests, at the rate equal to, if paid
within two (2) Business Days of the date of the Revolving Credit Loan advance,
the Federal Funds Effective Rate (as defined in the definition of "ABR"), and
thereafter at a rate equal to the ABR.
(f) Designation of Consolidated Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation subsection 2.16(a), a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit is issued for the
account of a Consolidated Subsidiary of the Company, provided that
notwithstanding such statement, the Company shall be the actual account party
for all purposes of this Agreement for such Letter of Credit and such statement
shall not affect the Company's reimbursement obligations hereunder with respect
to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (Publication No. 500 or the most recent publication, the "UCP"), in
which case the UCP may be incorporated therein and deemed in all respects to be
a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this subsection
2.16, the Company hereby agrees to pay, and protect, indemnify and save
each U.S. Lender and each Multicurrency Lender (including the Issuing
Lender) harmless from and against, any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and expenses) that such Lender may incur or
be subject to as a consequence, direct or indirect, of (A) the issuance
of any Letter of Credit or (B) the failure of such Lender or the
Issuing Lender 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 government or Governmental Authority (all
such acts or omissions, herein called "Government Acts").
(ii) As between (x) the Company and (y) the U.S. Lenders and
the Multicurrency Lenders (including the Issuing Lender), the Company
shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. No Lender (including the Issuing
Lender) shall be responsible: (A) for the form, validity, sufficiency,
accuracy,
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<PAGE> 34
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of such Lender,
including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by any U.S. Lender or any Multicurrency Lender (including the
Issuing Lender), under or in connection with any Letter of Credit or
the related certificates, if taken or omitted in good faith, shall not
put such Lender under any resulting liability to the Company. It is the
intention of the parties that this Agreement shall be construed and
applied to protect and indemnify each U.S. Lender and each
Multicurrency Lender (including the Issuing Lender) against any and all
risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Company (on behalf of itself and each
of its Consolidated Subsidiaries), including, without limitation, any
and all Government Acts. No U.S. Lender or Multicurrency Lender
(including the Issuing Lender) shall, in any way, be liable for any
failure by such Lender or anyone else to pay any drawing under any
Letter of Credit as a result of any Government Acts or any other cause
beyond the control of such Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Company contained in subsection (d)
above. The obligations of the Company under this subsection (i) shall
survive the termination of this Agreement. No act or omission of any
current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the U.S. Lenders and the Multicurrency
Lenders (including the Issuing Lender) to enforce any right, power or
benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Company shall have no obligation to indemnify any
U.S. Lender or Multicurrency Lender (including the Issuing Lender) in
respect of any liability incurred by such Lender (A) to the extent such
liability arose out of the gross negligence or willful misconduct of
such Lender, as determined by a court of competent jurisdiction, or (B)
caused by such Lender's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of
competent jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree.
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<PAGE> 35
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the U.S. Lenders
and the Multicurrency Lenders are only those expressly set forth in this
Agreement and that the Issuing Lender shall be entitled to assume that the
conditions precedent set forth in subsection 4.2 have been satisfied unless it
shall have acquired actual knowledge that any such condition precedent has not
been satisfied; provided, however, that nothing set forth in this subsection
2.16 shall be deemed to prejudice the right of any U.S. Lender or Multicurrency
Lender to recover from the Issuing Lender any amounts made available by such
Lender to the Issuing Lender pursuant to this subsection 2.16 in the event that
it is determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful misconduct
on the part of the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Agreement and any LOC Document (including any letter of credit
application), this Agreement shall control.
2.17. TERM LOAN TRANCHES.
(a) Term Loan Commitments. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein,
certain of the Lenders severally made available to the Company in U.S. Dollars
on the Closing Date such Lenders' Commitment Percentages of each of the
following term loan tranches (each a "Term Loan Tranche"):
(i) a term loan in the aggregate principal amount of ONE
BILLION TWO HUNDRED FIFTY MILLION DOLLARS ($1,250,000,000) (the
"Tranche A Term Loan");
(ii) a term loan in the aggregate principal amount of FIVE
HUNDRED MILLION DOLLARS ($500,000,000) (the "Tranche B Term Loan"); and
(iii) a term loan in the aggregate principal amount of ONE
BILLION DOLLARS ($1,000,000,000) (the "Tranche C Term Loan").
Each Term Loan Tranche may consist of ABR Loans or Eurodollar Loans, or a
combination thereof, as the Company may request; provided that any portion of
the Tranche A Term Loan funded in Euros in accordance with the terms set forth
below shall consist solely of Eurodollar Loans. Except as set forth below with
respect to the Tranche A Term Loan, amounts repaid under a Term Loan Tranche may
not be reborrowed.
On the Restatement Effective Date and in accordance with the borrowing
procedures set forth in subsection (b) below, the Company may convert up to $950
million of the Tranche A Term Loan to Term Loans denominated in Euros by
requesting a readvance in Euros of up to $950 million of the Tranche A Term Loan
and, upon receipt of such readvance, immediately repaying to the Administrative
Agent the Dollar Amount of such readvance in U.S. Dollars. The Term Loans
converted on the Restatement Effective Date pursuant to the preceding sentence
shall continue to constitute a portion of the Tranche A Term Loan.
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<PAGE> 36
(b) Borrowing Procedures. The funding of the Term Loan Tranches on the
Closing Date was subject to the following procedures: The Company shall submit
an appropriate notice of borrowing, substantially in the form of Exhibit G, to
the Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Closing Date, with respect to the portion of each Term Loan Tranche
initially consisting of an ABR Loan, or on the third Business Day prior to the
Closing Date, with respect to the portion of each Term Loan Tranche initially
consisting of one or more Eurodollar Loans, which notice of borrowing shall be
irrevocable and shall specify (i) that the funding of a Term Loan Tranche is
requested and (ii) whether the funding of such Term Loan Tranche shall be
comprised of ABR Loans, Eurodollar Loans or a combination thereof, and if
Eurodollar Loans are requested, the Interest Period(s) therefor. If the Company
shall fail to deliver such notice of borrowing to the Administrative Agent by
11:00 A.M. (Charlotte, North Carolina time) on the third Business Day prior to
the Closing Date, then the full amount of each Term Loan Tranche shall be
disbursed on the Closing Date as an ABR Loan. Each Lender shall make its
Commitment Percentage of each Term Loan Tranche available to the Administrative
Agent for the account of the Company at the office of the Administrative Agent
specified in subsection 9.2, or at such other office as the Administrative Agent
may designate in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the
Closing Date in U.S. Dollars and in funds immediately available to the
Administrative Agent. Each Term Loan Tranche will then be made available to the
Company by the Administrative Agent crediting the account of the Company on the
books of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
The conversion of a portion of the Tranche A Term Loan on the
Restatement Effective Date is subject to the following procedures: The Company
shall submit an appropriate notice of borrowing, substantially in the form of
Exhibit G, to the Administrative Agent not later than 11:00 A.M. (Charlotte,
North Carolina time) on the third Business Day prior to the Restatement
Effective Date with respect to the portion of the Tranche A Term Loan to be
redenominated in Euros, which notice of borrowing shall be irrevocable and shall
specify (i) that a readvance in Euros of a portion of the Tranche A Term Loan is
requested on the Restatement Effective Date, (ii) the Dollar Amount of such
requested readvance (which may not exceed $950 million) (the "Readvance Amount")
and (iii) the requested Interest Period(s) for the Eurodollar Loans comprising
such readvance. The Administrative Agent will notify the Tranche A Euro Lenders
of such readvance request and will, by no later than the second Business Day
prior to the Restatement Effective Date, notify each Tranche A Euro Lender of
the amount of Euros to be funded by such Tranche A Euro Lender on the
Restatement Effective Date in order to effectuate such readvance (each such
amount a "Tranche A Euro Amount"). The amount of Euros to be funded by each
Tranche A Euro Lender shall not exceed that portion of such Lender's Commitment
under the Tranche A Term Loan available to be readvanced in Euros, as indicated
on Schedule I and as expressed in Euros based on the Administrative Agent's spot
rate of exchange two Business Days prior to the Restatement Effective Date. Each
Tranche A Euro Lender shall make its Tranche A Euro Amount available to the
Administrative Agent for the account of the Company at the U.K. Lending Office
of the Administrative Agent specified below, or at such other address as the
Administrative Agent may specify to the Tranche A Euro Lenders and the Company,
by 11:00 A.M. (London time) on the Restatement Effective Date, in Euros, and in
funds immediately available to the Administrative Agent. Upon confirmation by
the Administrative Agent of its receipt of a Tranche A Euro Lender's Tranche A
Euro Amount in Euros, the Administrative Agent will, on the Restatement
Effective Date, distribute to the Company such Lender's Tranche A Euro Amount in
Euros. On the
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<PAGE> 37
Restatement Effective Date and immediately upon its receipt of the respective
Tranche A Euro Amounts referred to above, the Company shall pay to the
Administrative Agent, for the pro rata benefit of the Tranche A Euro Lenders and
in U.S. Dollars, the Readvance Amount; provided, however, that if the
Administrative Agent has not made available to the Company any Lender's Tranche
A Euro Amount in Euros on the Restatement Effective Date, then the Company may
withhold from the amount otherwise payable to the Administrative Agent pursuant
to this sentence such Lender's pro rata portion of the Readvance Amount until
such time as such Lender's Tranche A Euro Amount has been made available to the
Company.
U.K. Lending Office
Bank of America
1 Alie Street
London
Swift Address: BOSAGB22
For account of NationsBank, N.A. Charlotte
Account No.: 11046027
Reference: Hercules Incorporated
(c) Minimum Amounts. Each Eurodollar Loan or ABR Loan that is part of a
Term Loan Tranche shall be in an aggregate principal Dollar Amount that is not
less than $5,000,000 and in an integral multiple of $1,000,000 or 1,000,000
Euros, as applicable (or the then remaining principal balance of that portion of
such Term Loan Tranche available in such currency, if less).
(d) Repayment of Term Loan Tranches. The principal amount of each Term
Loan Tranche shall be repaid on the date(s) set forth below, unless accelerated
sooner pursuant to subsection 6.1:
(i) The principal amount of the Tranche A Term Loan shall be
repaid on each of the Principal Amortization Payment Dates set forth
below with a quarterly payment on each such date equal to (A) an amount
in U.S. Dollars equal to that portion of the Tranche A Term Loan
denominated in U.S. Dollars as of the Restatement Effective Date (as
expressed in U.S. Dollars) multiplied by the percentage set forth below
corresponding to the relevant Principal Amortization Payment Date and
(B) an amount in Euros equal to that portion of the Tranche A Term Loan
redenominated in Euros on the Restatement Effective Date (as expressed
in Euros) multiplied by the percentage set forth below corresponding to
the relevant Principal Amortization Payment Date:
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<TABLE>
<CAPTION>
------------------------------ ------------------------------
Principle Amortization Tranche A Term Loan
Payment Dates Amortization Payment
Percentage
------------------------------ ------------------------------
<S> <C>
March 31, 2000 4%
------------------------------ ------------------------------
June 30, 2000 4%
------------------------------ ------------------------------
September 30, 2000 4%
------------------------------ ------------------------------
December 31, 2000 4%
------------------------------ ------------------------------
March 31, 2001 6%
------------------------------ ------------------------------
June 30, 2001 6%
------------------------------ ------------------------------
September 30, 2001 6%
------------------------------ ------------------------------
December 31, 2001 6%
------------------------------ ------------------------------
March 31, 2002 7%
------------------------------ ------------------------------
June 30, 2002 7%
------------------------------ ------------------------------
September 30, 2002 7%
------------------------------ ------------------------------
December 31, 2002 7%
------------------------------ ------------------------------
March 31, 2003 8%
------------------------------ ------------------------------
June 30, 2003 8%
------------------------------ ------------------------------
September 30, 2003 8%
------------------------------ ------------------------------
October 15, 2003 8%
------------------------------ ------------------------------
</TABLE>
(ii) The principal amount of the Tranche B Term Loan shall be
repaid in full on December 31, 1999.
(iii) The principal amount of the Tranche C Term Loan shall be
repaid in full on December 31, 2000.
(e) Interest. Each Term Loan Tranche shall bear interest, and such
interest shall be payable, as specified in subsection 2.9.
(f) Notes Evidencing Term Loans. The Term Loans made by each Lender
shall be evidenced by a duly executed Regular Note of the Company to such Lender
in an original principal amount that includes the aggregate unpaid principal
amount of all Term Loans made by such Lender to the Borrower.
2.18 BANKERS' ACCEPTANCES.
(a) Form.
(i) To facilitate the acceptance of Bankers'
Acceptances hereunder, the Canadian Borrower hereby appoints
each Canadian Lender as its attorney to sign and endorse on
its behalf, as and when considered necessary by such Canadian
Lender, an appropriate number of orders in the form prescribed
by that Canadian Lender.
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<PAGE> 39
(ii) Each Canadian Lender may, at its option, execute
any order in handwriting or by the facsimile or mechanical
signature of any of its authorized officers, and the Canadian
Lenders are hereby authorized to accept or pay, as the case
may be, any order of the Canadian Borrower which purports to
bear such a signature notwithstanding that any such individual
has ceased to be an authorized officer of the Canadian Lender.
Any such order or Bankers' Acceptance shall be as valid as if
he or she were an authorized officer at the date of issue of
the order or Bankers' Acceptance.
(iii) Any order signed by a Canadian Lender as
attorney for the Canadian Borrower, whether signed in
handwriting or by the facsimile or mechanical signature of an
authorized officer of a Canadian Lender may be dealt with by
the Canadian Administrative Agent or any Canadian Lender to
all intents and purposes and shall bind the Canadian Borrower
as if duly signed and issued by the Canadian Borrower.
(iv) The receipt by the Canadian Administrative Agent
of a notice under section 2.18(c) requesting Bankers'
Acceptances shall be each Canadian Lender's sufficient
authority to execute, and each Canadian Lender shall, subject
to the terms and conditions of this Agreement, execute orders
in accordance with such request, and the orders so executed
shall thereupon be deemed to have been presented for
acceptance.
(b) Issuance. Subject to the terms and conditions hereof and
of the BA Documents executed in connection with the creation of each
Banker's Acceptance and any other terms and conditions which the
Canadian Lenders may reasonably require, (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Agreement) to be given by the
Company or any of its Subsidiaries or conflict with any obligation of,
or detract from any action which may be taken by, the Company or any of
its Subsidiaries under this Agreement) each Canadian Lender agrees,
severally and not jointly, at any time and from time to time during the
Commitment Period, to create Bankers' Acceptances by accepting orders
of the Canadian Borrower presented to it for acceptance equal to such
Canadian Lender's Commitment Percentage of such Bankers' Acceptances as
the Canadian Borrower may request on such date; provided, however, that
(i) the aggregate Dollar Amount of (A) Canadian Revolving Loans
outstanding plus (B) the Face Amount of Bankers' Acceptances
outstanding may not exceed the Canadian Revolving Committed Amount and
(ii) if the Face Amount of a Banker's Acceptance, which would otherwise
be accepted by a Canadian Lender, would not be C$100,000 or a larger
multiple thereof, such Face Amount shall be increased or reduced by the
Canadian Administrative Agent in its discretion to the nearest multiple
of C$100,000. Upon the acceptance of any order of the Canadian Borrower
pursuant hereto, the Canadian Borrower shall pay to each of the
Canadian Lenders, in advance, the Acceptance Fee. Forthwith after each
request for drawdown of, continuation of or conversion into Bankers'
Acceptances, the Canadian Administrative Agent shall notify each
Canadian Lender of the amount of Bankers' Acceptances to be accepted by
such Canadian Lender. The Canadian Lenders may, but are not obligated
to, purchase any of the Bankers' Acceptances. The Canadian Borrower
shall as soon as practical deliver to the Canadian Administrative Agent
a notice confirming the issuance of
34
<PAGE> 40
Bankers' Acceptances and specifying the BA Discount Proceeds derived
therefrom. For greater certainty, with respect to each extension of
credit by way of Bankers' Acceptances, each Bankers' Acceptance shall
have the same term and, upon sale, each Bankers' Acceptance shall be
discounted at the rate relating to the Canadian Lender accepting the
Bankers' Acceptance.
(c) Requirements of Bankers' Acceptances. Each Bankers'
Acceptance shall comply with the related BA Documents and shall be
executed by the Canadian Borrower and presented to the Canadian Lenders
pursuant to such procedures as are provided for in such BA Documents or
as otherwise provided or required by a Canadian Lender. The creation
and maturity date of each Bankers' Acceptance shall be a Business Day
and no Bankers' Acceptance shall have a maturity date later than the
Termination Date.
(d) Method of Requesting a Bankers' Acceptance. By no later
than 10:00 A.M., Toronto, Ontario time, two Business Days prior to the
date of the requested Bankers' Acceptance, the Canadian Borrower shall
submit an irrevocable notice, substantially in the form of Exhibit F,
to the Canadian Administrative Agent setting forth the aggregate amount
of Bankers' Acceptances requested and the maturity date of the
requested Bankers' Acceptances which shall be 30, 60, 90 or 180 days,
at the election of the Canadian Borrower, and complying in all respects
with subsection 4.2.
(e) Safekeeping of Orders. Any executed orders to be used as
Bankers' Acceptances which are delivered to a Canadian Lender shall be
held in safekeeping with the same degree of care as if they were such
Canadian Lender's own property, and shall be kept at the place at which
such orders are ordinarily held by such Canadian Lender, provided that
such Canadian Lender shall not be deemed to be an insurer thereof.
(f) Maturity/Continuations. The Canadian Borrower shall pay to
the Canadian Administrative Agent, and there shall become due and
payable, at 1:00 P.M. (Toronto, Ontario time) on the maturity date for
each Bankers' Acceptance an amount in Canadian Dollars in same day
funds equal to the Face Amount of such Bankers' Acceptance
(notwithstanding that any Canadian Lender which accepted any such
Bankers' Acceptance may be the holder thereof at maturity); provided,
however, that subject to subsection 3.1 and provided that the Canadian
Borrower has, by giving notice in accordance with subsection 2.18(c) or
2.7, requested the Canadian Lenders to accept its orders to replace all
or a portion of outstanding Bankers' Acceptances as they mature, each
Canadian Lender shall, on the maturity of such Bankers' Acceptances and
concurrent with the payment by the Canadian Borrower to the Canadian
Lenders of the Face Amount of such Bankers' Acceptances or the portion
thereof to be replaced, accept the Canadian Borrower's order(s) having
an aggregate Face Amount equal to its pro rata share of the aggregate
Face Amount of the matured Bankers' Acceptances or the portion thereof
to be replaced.
(g) Repayments Prior to Maturity. Except as required by
subsection 2.6(b), no repayment of a Bankers' Acceptance shall be made
by the Canadian Borrower to the Canadian Lenders prior to the maturity
date thereof. Any such repayment required by subsection 2.6(b)
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shall be made to the Canadian Administrative Agent and such monies
shall be held by the Canadian Administrative Agent, in a cash
collateral account hypothecated to the Canadian Administrative Agent,
to be paid to each of the Canadian Lenders on the maturity date of the
Bankers' Acceptances which have been accepted by it. The Canadian
Borrower shall be entitled to the benefit of any interest accruing
thereon, in each case, on the respective maturity date of each Bankers'
Acceptance in respect of which repayment is made, and upon the maturity
of each such Bankers' Acceptance the Canadian Lenders shall apply the
interest thereon in payment of amounts owed by the Canadian Borrower
hereunder. Any such payment by the Canadian Borrower to the Canadian
Lenders shall satisfy the Canadian Borrower's obligations under the
Bankers' Acceptance to which it relates and the Canadian Lender which
has accepted such Bankers' Acceptance shall thereafter be solely
responsible for the payment of such Bankers' Acceptance.
(h) Minimum Amounts. Each request for Bankers' Acceptances
shall be in a minimum aggregate amount of C$1,000,000 and in an
integral multiple of C$1,000,000 above such amount. The Face Amount of
each Bankers' Acceptance created hereunder shall be C$100,000 or any
multiple thereof.
(i) Funding of Bankers' Acceptances.
(i) Subject to subsections (ii) and (iii) below, each
Canadian Lender shall, not later than 1:00 P.M., Toronto,
Ontario time, on the date of creation of the Bankers'
Acceptances, accept orders of the Canadian Borrower which are
presented to it for acceptance in an amount equal to each
Canadian Lender's Commitment Percentage of the aggregate Face
Amounts of Bankers' Acceptances created on such date;
provided, however, that if the Face Amount of a Banker's
Acceptance, which would otherwise be accepted by a Canadian
Lender, would not be C$100,000 or a larger multiple thereof,
such Face Amount shall be increased or reduced by the Canadian
Administrative Agent in its discretion to the nearest multiple
of C$100,000. Subject to the provisions hereof, the Canadian
Administrative Agent shall be responsible for making all
necessary arrangements with each of the Canadian Lenders with
respect to the acceptance of Bankers' Acceptances.
(ii) Each Canadian Lender shall transfer to the Canadian
Administrative Agent for value on such creation date
immediately available Canadian Dollars in an aggregate amount
equal to the BA Discount Proceeds of all Bankers' Acceptances
accepted and sold or purchased by the Canadian Lender on such
date net of the applicable Acceptance Fee and net of the
amount required to pay any of its previously accepted Bankers'
Acceptances that are maturing on such date or its percentage
of any Canadian Base Rate Revolving Loan that is being
converted to Bankers' Acceptances on such date.
(iii) Subject to subsection 3.1, in the sole judgment of a
Canadian Lender, if such Canadian Lender is unable to create a
Bankers' Acceptance in accordance with this Agreement, such
Canadian Lender shall give an irrevocable notice to such
effect to
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the Canadian Administrative Agent and the Canadian Borrower
prior to 10:00 A.M., Toronto, Ontario time, on the date of the
requested creation of the Bankers' Acceptances. Such Canadian
Lender shall make available to the Canadian Borrower prior to
1:00 P.M., Toronto, Ontario time, one Business Day prior to
the date of such requested Bankers' Acceptance a Canadian
Dollar loan in a principal amount equal to the BA Discount
Proceeds of such Canadian Lender's pro rata share of the
aggregate Face Amounts of Bankers' Acceptances to be created
on such date, such loan to be funded in the same manner as the
Bankers' Acceptances provided by the other Canadian Lenders.
Such loan shall have the same term as the Bankers' Acceptance
for which it is a substitute and shall bear such interest per
annum throughout the term thereof as shall permit such
Canadian Lender to obtain the same effective rate as if such
Canadian Lender had accepted and purchased a Bankers'
Acceptance at the same Acceptance Fee and pricing in which the
Canadian Administrative Agent would have accepted and
purchased on the bid side of the market, such Bankers'
Acceptance at approximately 1:00 P.M., Toronto, Ontario time,
on the date such loan is made. The Canadian Borrower hereby
agrees that if such loan is made by a Canadian Lender interest
shall be payable in advance on the date of such loan by
deducting the interest payable in respect thereof from the
principal amount of such loan.
The Canadian Administrative Agent shall promptly inform the
Administrative Agent of the creation of Bankers' Acceptances and the terms
thereof. No Canadian Lender shall be responsible for the failure or delay by any
other Canadian Lender in its obligation to create Bankers' Acceptances
hereunder; provided, however, that the failure of any Canadian Lender to fulfill
its Commitment hereunder shall not relieve any other Canadian Lender of its
Commitment hereunder.
SECTION 3. CHANGE IN CIRCUMSTANCES AFFECTING LOANS OR BANKERS'
ACCEPTANCES.
3.1. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR;
INABILITY TO CREATE BANKERS' ACCEPTANCES.
(a) If before the beginning of any Interest Period applicable to a
Eurodollar Loan:
(i) by reason of circumstances affecting the
interbank eurodollar market generally, deposits in U.S.
Dollars or Euros (in the applicable amounts) are not being
offered by the Administrative Agent in the interbank
eurodollar market for such Interest Period;
(ii) the Required Lenders shall determine that the
Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the
cost to such Lenders of maintaining or funding, for such
Interest Period, its Eurodollar Loans to which such Interest
Period applies; or
(iii) the Administrative Agent is unable to determine
the London Interbank Offered Rate;
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the Administrative Agent (upon receipt of notice from the Required Lenders in
the case of clause (ii) above) shall forthwith give notice thereof to the
Company whereupon until the Administrative Agent notifies the Company that the
circumstances giving rise to such suspension no longer exist (A) the obligations
of the Lenders to make the affected Eurodollar Loans shall be suspended and (B)
each Borrower shall repay in full the then outstanding principal amount of each
affected Eurodollar Loan received by it, together with accrued interest thereon,
on the last day of the then current Interest Period applicable to such Loan or
convert the then outstanding principal amount of each Eurodollar Loan on the
last day of the then current Interest Period applicable to such Loan to an ABR
Loan.
(b) If the Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon the Canadian
Borrower absent manifest error, and notifies the Canadian Borrower and each of
the Canadian Lenders that, by reason of circumstances affecting the money market
or the market for bankers' acceptances generally (i) there is no market for
Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is
insufficient to allow the sale or trading of the Bankers' Acceptances created
and purchased hereunder, then,
(A) the right of the Canadian Borrower to request a
borrowing by way of Bankers' Acceptances shall be suspended
until the Canadian Administrative Agent determines in good
faith that the circumstances causing such suspension no longer
exist and the Canadian Administrative Agent so notifies the
Canadian Borrower; and
(B) any notice of requested Bankers' Acceptances
which is outstanding shall be canceled and the Bankers'
Acceptance requested therein shall not be made.
(C) The Canadian Administrative Agent shall promptly
notify the Canadian Borrower of the suspension of the Canadian
Borrower's right to request a Bankers' Acceptance and of the
termination of any such suspension.
3.2. ILLEGALITY.
If, after the date of this Agreement, the introduction of, or any
change in, any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) of any such
Governmental Authority shall make it unlawful or impossible for any Lender to
make, maintain or fund its Eurodollar Loans, such Lender forthwith shall so
notify the Company. Upon receipt of such notice, each Borrower shall prepay in
full the then outstanding principal amount of each Eurodollar Loan of such
Lender received by it, together with accrued interest thereon, or convert the
then outstanding principal amount of each such Eurodollar Loan to an ABR Loan,
in either case, on either (a) the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain and fund such Loan to such day or (b) immediately if such Lender may
not lawfully continue to fund and maintain such Loan to such day.
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3.3. INCREASED COST.
(a) If, after the date of this Agreement, the introduction of, or any
change in, any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Lender with any request or directive of any such Governmental Authority,
central bank or comparable agency (whether or not having the force of law):
(i) shall subject any Lender to any tax, duty or other charge
with respect to Loan made by it, any Letter of Credit or any Bankers'
Acceptance, or its obligation to make, issue or create any of the
foregoing, or shall change the basis of taxation of payments to such
Lender of the principal of or interest on Loan made by it, any Letter
of Credit or any Bankers' Acceptance, or its obligation to make, issue
or create any of the foregoing (except for changes in the rate of tax
on the overall net income of such Lender imposed by the jurisdiction,
at any level, in which the principal executive office of such Lender is
located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System), special deposit or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender or shall impose on any Lender or the
interbank eurodollar market any other condition affecting its
Eurodollar Loans or its respective Notes;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining its Loans or issuing or participating in Letters of Credit
or creating Bankers' Acceptances, or to reduce the amount of any sum received or
receivable by such Lender under this Agreement or under its Notes in respect
thereof, by any amount deemed by such Lender to be material, then, within
fifteen (15) days after receipt of written demand from such Lender, the
Borrowers agree to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction. A certificate of
such Lender setting forth in reasonable detail the basis for determining such
additional amount or amounts necessary to compensate such Lender shall be
conclusive in the absence of manifest error.
(b) If any Lender shall have determined that the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any Governmental Authority or compliance by such Lender or any corporation
controlling such Lender with any request, guideline or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and such Lender (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's desired return on capital) determines that
the
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amount of such capital is increased as a consequence of such Lender's
obligations under this Agreement, then, upon demand of such Lender, each
Borrower shall immediately pay to such Lender, from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender for such
increase, to the extent related to the Loans made to such Borrower. A
certificate of such Lender setting forth in reasonable detail the basis for
determining any such additional amounts payable pursuant to the preceding
sentence shall be submitted by such Lender through the Administrative Agent to
the Company and shall be conclusive in the absence of manifest error.
3.4. EFFECT ON OBLIGATION TO CONVERT.
If notice has been given pursuant to subsection 3.1 or 3.2 hereof
requiring the Eurodollar Loans of any Lender to be prepaid or converted, then,
unless and until such Lender notifies the Company that the circumstances giving
rise to such prepayment or conversion no longer apply, the obligation of such
Lender to make or convert to Eurodollar Loans shall be suspended.
3.5. FUNDING LOSSES.
Each Borrower shall pay to each Lender, upon written request, such
amount or amounts as shall compensate such Lender for any loss or expense
incurred by such Lender (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain its Eurodollar Loans made to such
Borrower) as a result of (i) any payment or prepayment or conversion of a
Eurodollar Loan on a date other than a date which is the last day of an Interest
Period for such Eurodollar Loan or any payment in respect of increased costs to
such Lender, whether pursuant to subsection 3.2 or subsection 3.3 (except when
such payment or prepayment pursuant to subsection 3.2 or subsection 3.3 is
required due to a request or directive which does not have the force of law) or
subsection 6.1 hereof or otherwise or (ii) any failure by such Borrower to
borrow or prepay a Eurodollar Loan or to convert an ABR Loan into a Eurodollar
Loan on the date scheduled for such borrowing, prepayment or conversion. Each
Lender shall furnish the Company with a reasonably detailed statement explaining
the amount of any such loss or expense, which statement shall be conclusive
absent manifest error.
SECTION 3A. GUARANTY.
3A.1 GUARANTY OF PAYMENT.
Subject to subsection 3A.7 below, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to (a) each Lender, (b) each
Affiliate of a Lender that enters into a Hedging Agreement and (c) the Agents
the prompt payment of the Guaranteed Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise). This
guaranty is a guaranty of payment and not merely of collection and is a
continuing guaranty and shall apply to all Guaranteed Obligations whenever
arising.
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3A.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of the Credit Documents or the Hedging Agreements, or any other
agreement or instrument referred to herein, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor. Each Guarantor agrees that this guaranty may be enforced by the
Lenders without the necessity at any time of resorting to or exhausting any
security or collateral and without the necessity at any time of having recourse
to the Notes, the Agreement or any other Credit Documents or any collateral, if
any, hereafter securing the Guaranteed Obligations or otherwise and each
Guarantor hereby waives the right to require the Lenders to proceed against a
Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against a Borrower or any other guarantor of the
Guaranteed Obligations for amounts paid under this guaranty until such time as
the Lenders (and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Agreement have been terminated
and no Person or Governmental Authority shall have any right to request any
return or reimbursement of funds from the Lenders in connection with monies
received under the Agreement. Each Guarantor further agrees that nothing
contained herein shall prevent the Lenders from suing on the Notes, the
Agreement or any other Credit Document or any of the Hedging Agreements or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Guaranteed Obligations or from exercising any other rights available to it
under this Agreement, the Notes, or any other instrument of security, if any,
and the exercise of any of the aforesaid rights and the completion of any
foreclosure proceedings shall not constitute a discharge of any of a Guarantor's
obligations hereunder; it being the purpose and intent of each Guarantor that
its obligations hereunder shall be absolute, independent and unconditional under
any and all circumstances. Neither a Guarantor's obligations under this guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of a Borrower or by reason of the
bankruptcy or insolvency of a Borrower. Each Guarantor waives any and all notice
of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance of by an Agent or any Lender upon
this guaranty or acceptance of this guaranty. The Guaranteed Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
guaranty. All dealings between the Borrowers and any of the Guarantors, on the
one hand, and the Agents and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
guaranty.
3A.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the security which
hereafter may be held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances which hereafter may be held, if any, for the Guaranteed
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Obligations or the properties subject thereto; (c) the time or place of payment
of the Guaranteed Obligations may be changed or extended, in whole or in part,
to a time certain or otherwise, and may be renewed or accelerated, in whole or
in part; (d) a Borrower and any other party liable for payment under the
Agreement may be granted indulgences generally; (e) any of the provisions of the
Notes, the Agreement or any other Credit Document may be modified, amended or
waived; (f) any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any deposit balance
for the credit of a Borrower or any other party liable for the payment of the
Guaranteed Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Guaranteed Obligations, all without notice to or further assent
by such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
3A.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this guaranty by the Lenders and of
all extensions of credit to a Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Guaranteed Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Agreement) with respect to the Guaranteed Obligations or with respect to any
security therefor; (d) notice of the Lenders obtaining, amending, substituting
for, releasing, waiving or modifying any security interest, lien or encumbrance,
if any, hereafter securing the Guaranteed Obligations, or the Lenders
subordinating, compromising, discharging or releasing such security interests,
liens or encumbrances, if any; (e) all other notices to which such Guarantor
might otherwise be entitled in connection with the guaranty evidenced by this
Section 3A; and (f) demand for payment under this guaranty.
3A.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 3A shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agents and each Lender on demand for all reasonable, documented costs and
expenses (including, without limitation, reasonable, documented fees of counsel)
incurred by an Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
3A.6 REMEDIES.
Each Guarantor agrees that, as between the Guarantors, on the one hand,
and the Agents and the Lenders, on the other hand, the Guaranteed Obligations
may be declared to be forthwith due and payable as provided in subsection 6.1
(and shall be deemed to have become automatically
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due and payable in the circumstances provided in subsection 6.1) notwithstanding
any stay, injunction or other prohibition preventing such declaration (or
preventing such Guaranteed Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration
(or such Guaranteed Obligations being deemed to have become automatically due
and payable), such Guaranteed Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Guarantors. The
Guarantors acknowledge and agree that, during the Collateral Period, their
obligations hereunder shall be secured in accordance with the terms of the
Collateral Documents and that, during the Collateral Period, the Lenders may
exercise their rights and remedies thereunder in accordance with the terms
thereof.
3A.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein, to the
extent the obligations of any Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of such Guarantor hereunder shall be limited to the maximum
amount that is permissible under applicable law (whether federal or state and
including, without limitation, the Federal Bankruptcy Code (as now or
hereinafter in effect)).
3A.8 RIGHTS OF CONTRIBUTION.
The Guarantors agree among themselves that, in connection with payments
made hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall be
subordinate and subject in right of payment to the obligations of the Guarantors
under the Credit Documents and no Guarantor shall exercise such rights of
contribution until all Guaranteed Obligations have been paid in full and the
Commitments terminated.
3A.9 RELEASES OF CERTAIN GUARANTORS.
Upon the occurrence of a Credit Improvement Date, the Company may by
written notice to the Administrative Agent request that any Material Domestic
Subsidiary or Additional Credit Party be released from its guaranty pursuant to
this Section 3A. Promptly upon receipt of such written request, the
Administrative Agent shall, at the expense of the Company, execute and deliver a
release acknowledging the termination of the guaranties of the Material Domestic
Subsidiaries and/or Additional Credit Parties specified in such request.
SECTION 4. CONDITIONS PRECEDENT.
4.1. EFFECTIVENESS OF THIS AGREEMENT.
The effectiveness of this Agreement is subject to the satisfaction of
the following conditions precedent on the date hereof:
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(a) the Administrative Agent shall have received a copy of this
Agreement, the Notes, the Pledge Agreements and each of the other Credit
Documents, each duly executed and delivered by the parties thereto, together
with a certificate of the Secretary or Assistant Secretary of the Company and
each other Credit Party as to the incumbency and specimen signatures of the
officers of the Company and each other Credit Party who are authorized to
execute this Agreement, the Notes and each other document to be executed and
delivered by the Company and each other Credit Party pursuant hereto;
(b) the Administrative Agent shall have received a certified copy of
the resolutions of the Board of Directors of the Company and each other Credit
Party evidencing its approval of this Agreement, the Notes and the other matters
contemplated hereby, and a certified copy of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement, the Notes and the other Credit Documents;
(c) the Administrative Agent shall have received an opinion of the
Assistant General Counsel of the Company, acting as counsel to each of the
Credit Parties, in a form agreed to by such counsel for the Company and counsel
for the Administrative Agent;
(d) the Administrative Agent shall have received all documents it may
reasonably request relating to the existence and good standing of the Credit
Parties and to the authorization, execution and delivery of this Agreement and
the other Credit Documents and other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent and its counsel in their
reasonable discretion;
(e) the Administrative Agent shall have received (with a copy for each
Lender) each of the financial statements referred to in subsection 1.2;
(f) the Administrative Agent shall have received from a Responsible
Officer of the Company a certificate to the effect that as of the date hereof
(i) all representations and warranties made by the Company and each other Credit
Party in this Agreement and each other Credit Document are true and correct in
all material respects and (ii) the transactions contemplated in the Merger
Agreement have been consummated in accordance with the terms thereof;
(g) the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that the Credit Parties have
terminated, and paid in full any amounts outstanding under, the Specified Credit
Agreements or will terminate and pay in full such amounts with the proceeds of
the initial borrowing hereunder;
(h) no Default or Event of Default shall have occurred and be
continuing; and
(i) (i) The Acquisition shall have been consummated in accordance
with the terms of the Merger Agreement and in compliance with applicable law and
regulatory approvals, and all conditions precedent to the consummation of the
transaction described in the Merger Agreement shall have been satisfied, (ii)
the Merger Agreement shall not have been altered, amended or otherwise changed
or supplemented or any condition therein waived, without the prior written
consent of the Co-Agents, (iii)
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the Company shall not have paid more than $2,500,000,000 (net of option proceeds
and excluding the assumption of Indebtedness) in the aggregate in connection
with the Acquisition and (iv) at least $180,000,000 of the purchase price paid
in connection with the Acquisition shall have been funded by the Company issuing
common stock out of its treasury stock account to the BetzDearborn Employee
Stock Option Plan ("BetzDearborn ESOP") to purchase the BetzDearborn convertible
preferred shares held by, or in trust for, the BetzDearborn ESOP.
4.2. CONDITIONS TO ALL BORROWINGS.
In the case of all borrowings or issuances or extensions of Letters of
Credit hereunder (including, without limitation, the initial borrowing and the
initial Letter of Credit) or creations of Bankers' Acceptances, the obligation
of each Lender (including the Swingline Lender) to make, or participate in, each
Loan and create each Bankers' Acceptance, and of the Issuing Lender to issue or
extend, and the obligation of the Lenders to participate in, a Letter of Credit,
is subject to the satisfaction of the following conditions:
(i) with respect to the first such borrowing, Letter of Credit
or Bankers' Acceptance, satisfaction of each of the conditions
precedent set forth in subsection 4.1;
(ii) on and as of the Borrowing Date of such Loan, Letter of
Credit or Bankers' Acceptance no Default or Event of Default shall have
occurred and be continuing or would exist after giving effect to the
making of such Loan, the issuance or extension of such Letter of Credit
or the creation of such Bankers' Acceptance;
(iii) on and as of the Borrowing Date of such Loan, Letter of
Credit or Bankers' Acceptance the representations and warranties of
each Credit Party contained in Section 1 hereof and in each other
Credit Document shall be true and correct in all material respects; and
(iv) receipt by the Administrative Agent or the Canadian
Administrative Agent, as applicable, of any applicable notice(s) from
the Company or the Canadian Borrower, as applicable, required by
Section 2 hereof.
Each borrowing by a Borrower hereunder or request for the issuance or
extension of a Letter of Credit or request for the creation of a Bankers'
Acceptance by the Company hereunder shall constitute a representation and
warranty by such Borrower to the Agents and the Lenders to the effect that the
representations and warranties of the Company and the other Credit Parties
contained in Section 1 hereof and in each other Credit Document are true in all
material respects on and as of the Borrowing Date of the applicable Loan, Letter
of Credit or Bankers' Acceptance and that, on and as of such Borrowing Date, no
Default or Event of Default has occurred and is continuing or would exist after
giving effect to the making of such Loan, the issuance or extension of such
Letter of Credit or the creation of such Bankers' Acceptance.
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SECTION 5. COVENANTS.
5.1. AFFIRMATIVE COVENANTS.
So long as this Agreement, any of the Notes, any LOC Obligations, any
BA Revolving Obligations or any other Credit Document shall remain in effect or
any of the principal of or interest on any of the Notes or any other amount
payable by a Credit Party to an Agent or any of the Lenders pursuant to this
Agreement, any of the Notes, any LOC Obligations, any BA Revolving Obligations
or any other Credit Document shall remain unpaid, unless compliance shall have
been waived in writing by the Required Lenders, each Credit Party covenants and
agrees that:
(a) Financial Statements. (i) The Company will deliver to the
Administrative Agent and each Lender:
(A) within ninety (90) days after the end of each of its
fiscal years, the consolidated statement of financial position of the Company
and its Consolidated Subsidiaries as of the end of such year, and the related
consolidated statements of income, stockholders' equity and cash flows for the
year then ended, accompanied by a certificate of independent public accountants
of recognized standing satisfactory to the Administrative Agent as to such
statements, which certificate will contain no material exceptions or
qualifications except such as are acceptable to the Required Lenders;
(B) within sixty (60) days after the end of each of the first
three (3) quarters of each of its fiscal years, the consolidated statement of
financial position of the Company and its Consolidated Subsidiaries as at the
end of such quarters, and the related consolidated statements of income and cash
flows for such quarters and the portion of the fiscal year then ended;
(C) promptly upon the filing thereof, copies of all Form 8-K,
10-K, and 10-Q reports, if any, which the Company shall have filed with the
Securities and Exchange Commission;
(D) from time to time such additional information regarding
the financial position or business of the Company as the Administrative Agent or
any Lender may reasonably request; and
(E) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (A) and (B) above, a certificate of a
Responsible Officer of the Company (1) stating that in the course of the
performance of his duties he would normally obtain knowledge of any condition or
event which constitutes, or which after notice or lapse of time or both would
constitute, an Event of Default specified in subsection 6.1, (2) stating whether
or not he has obtained knowledge of any such condition or event and, if so,
specifying each such condition or event of which he has knowledge and the nature
and period of existence thereof and the action the Company is taking and
proposes to take with respect thereto and (3) setting forth the calculations
required to establish compliance with subsection 5.2(d).
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(ii) The Company shall promptly give notice to the
Administrative Agent and the Lenders of (A) the occurrence of any
Default or Event of Default, accompanied by a certificate specifying
the nature of such Default or Event of Default, the period of existence
thereof and the action that the Company has taken or proposes to take
with respect thereto and (B) the occurrence of any of the following
with respect to the Company or any of its Consolidated Subsidiaries (x)
the pendency or commencement of any litigation, arbitral or
governmental proceeding against such Person which if adversely
determined could reasonably be expected to have a Material Adverse
Effect or (y) the institution of any proceedings against such Person
with respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation of any
federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which could reasonably
be expected to have a Material Adverse Effect.
(b) Payment of Obligations. It will, and will cause each of its
Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Company or
its Subsidiaries, as the case may be.
(c) Conduct of Business and Maintenance of Existence. It will, and will
cause each of the Material Subsidiaries to, (i) continue to engage in business
of the same general type as now conducted by it and preserve, renew and keep in
full force and effect its corporate existence (except in connection with
mergers, consolidations or dissolutions permitted under subsection 5.2(b)) and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business and (ii) comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(d) Maintenance of Property; Insurance. It will, and will cause each of
the Material Subsidiaries to, (i) keep all property useful and necessary in its
business in good working order and condition, except where the failure to keep
such property in good working order could not reasonably be expected to have a
Material Adverse Effect and (ii) maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amount and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business (it being understood
that the Company may maintain self-insurance to a similar extent as is commonly
maintained by companies engaged in the same or a similar business).
(e) Books and Records. It will, and will cause each of the Material
Subsidiaries to, keep proper books of records and account in which full, true
and correct entries in conformity with generally accepted accounting principles
in effect with respect to such Person (meaning GAAP for the Company and its
Domestic Subsidiaries) and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities.
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(f) Material Subsidiaries. The Company and the Material Subsidiaries
shall at all times collectively account for 90% or more of the net income and
assets, respectively, of the Company and its Consolidated Subsidiaries.
(g) Year 2000 Compliance. The Company will promptly notify the
Administrative Agent in the event any Credit Party discovers or determines that
any computer application that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant (as defined in
subsection 1.19), except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
(h) Use of Proceeds. It will use (i) the proceeds of the Loans solely
in accordance with subsection 1.6 and (ii) the Letters of Credit solely for the
purposes set forth in subsection 1.6.
(i) Audits/Inspections. Upon reasonable notice and during normal
business hours, each Credit Party will permit representatives appointed by the
Administrative Agent, including, without limitation, independent accountants,
agents, attorneys and appraisers, to visit and inspect such Credit Party's
property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders, and to discuss all such matters with the executive officers,
pertinent employees and representatives of the Credit Parties; provided,
however, that so long as neither (x) an Event of Default shall have occurred and
be continuing nor (y) the Collateral Period shall have begun and be continuing,
(i) no verification of accuracy of information shall include contacting the
account debtors under any accounts receivable of any Credit Party and (ii) such
visits and inspections shall not (A) disrupt the normal business operations of
any Credit Party, (B) be conducted by more than 5 Persons at any one time or (C)
occur more frequently than annually. The Administrative Agent agrees to keep
confidential the information obtained from any such audit or inspection in
accordance with the provisions of subsection 9.17.
(j) Additional Credit Parties. At the time any Person becomes a
Material Domestic Subsidiary (other than a Receivables Financing SPC or a
Preferred Stock SPC) prior to a Credit Improvement Date, the Company shall so
notify the Administrative Agent and promptly thereafter (but in any event within
30 days after the date thereof) shall (a) cause such Person to execute a
Guarantor Joinder Agreement in substantially the same form as Exhibit E, (b)
execute an appropriate pledge agreement in substantially the form of the Pledge
Agreements and otherwise in a form reasonably acceptable to the Collateral
Agent, which pledge agreement will be effective only during the Collateral
Period and which will obligate the Company to, upon the occurrence of the
Collateral Effective Date (or within 30 days of the notice referred to above if
the Collateral Period shall have begun and shall then be continuing), cause all
of the capital stock of such Person to be delivered to the Collateral Agent
(together with undated stock powers, if applicable, signed in blank) and pledged
to the Collateral Agent, (c) if such Person has any Subsidiaries, cause such
Person to execute a pledge agreement in substantially the form of the Pledge
Agreements and otherwise in a form reasonably acceptable to the Collateral
Agent, which pledge agreement will be effective only during the Collateral
Period and which will obligate such Person to, upon the occurrence of the
Collateral Effective Date (or within 30 days of the notice referred to above if
the Collateral Period shall have begun and shall then be continuing),
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cause all of the capital stock of its Domestic Subsidiaries and 65% of the
capital stock of its Material First Tier Foreign Subsidiaries to be delivered to
the Collateral Agent (together with undated stock powers, if applicable, signed
in blank) and pledged to the Collateral Agent, and (d) deliver, or cause such
Person to deliver, such other documentation as the Collateral Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above) and, if the Collateral
Period shall have begun and shall then be continuing, appropriate UCC-1
financing statements, all in form, content and scope reasonably satisfactory to
the Collateral Agent.
(k) Collateral Effective Date. Upon the occurrence of the Collateral
Effective Date and during the ensuing Collateral Period, the Pledge Agreements
shall be in full force and effect and the Collateral Agent, on behalf of the
Lenders, shall have a Lien on the Collateral described in the Pledge Agreements
and there shall be added to Section 1 a new representation and warranty in the
form set forth on Schedule V attached hereto. Within ten Business Days following
the Collateral Effective Date, the Company shall deliver to the Collateral
Agent, in form and substance reasonably satisfactory to the Collateral Agent:
(i) all stock certificates evidencing the stock pledged to the
Collateral Agent pursuant to the Pledge Agreements, together with duly
executed in blank undated stock powers attached thereto;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Collateral Agent's
sole discretion, to perfect the Lenders' security interest in the
Collateral; and
(iii) an opinion of counsel addressed to the Collateral Agent,
on behalf of the Lenders, covering such issues as reasonably requested
by the Collateral Agent, including the attachment and perfection of the
liens.
(l) Initial Hybrid Equity Transaction. No later than the date that is
three (3) months following the Closing Date, the Company shall complete the
Initial Hybrid Equity Transaction.
5.2. NEGATIVE COVENANTS.
So long as this Agreement, any of the Notes, any LOC Obligations or any
other Credit Document shall remain in effect or any of the principal of or
interest on any of the Notes or any other amount payable by a Credit Party to an
Agent or any of the Lenders pursuant to this Agreement, any of the Notes, any
LOC Obligations or any other Credit Document shall remain unpaid, unless waived
in writing by the Required Lenders, each Credit Party covenants and agrees that:
(a) Limitation on Liens. It will not, and will not permit any of the
Material Subsidiaries to, create, incur, assume or suffer to exist any Lien on
any Property owned by such
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Person or on any capital stock of any Material Subsidiary now or hereafter owned
by such Person to secure Indebtedness, or acquire any such Property subject to
any conditional sale or title retention agreement, except: (i) purchase money
security arrangements upon Property acquired subsequent to the date of this
Agreement, provided that each such security arrangement does not exceed 80% of
the cost or fair value of the Property acquired and is a lien only on such
Property, or renewals or extensions of any such security arrangement upon the
same Property and not in a greater amount; (ii) Liens on Property in favor of,
or any conditional sale or title retention agreement relating to any Property
with, the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any such political subdivision, or any agent or trustee acting on
behalf of any of the foregoing, or any agent or trustee acting on behalf of the
holders of obligations issued by any of the foregoing, to secure partial,
progress, advance or other payments pursuant to any agreement, understanding,
contract, lease or statute (including, but not limited to, agreements,
understandings, contracts, leases or statutes that require the construction of
Property and sale thereof to any of the named departments, agencies or political
divisions, as a part of the lease or installment purchase of such Property by
the Company or any Material Subsidiary) or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or the cost
of construction of the Property subject to such Liens; (iii) any reservation or
exception contained in any instrument under which the Company or any Material
Subsidiary owns or shall acquire any Property and under the terms of which any
vendor, lessor or assignor reserves or excepts an interest in oil, gas or any
other mineral or the proceeds thereof; (iv) any conveyance or assignment under
the terms of which the Company or any Material Subsidiary conveys or assigns an
interest in oil, gas or any, other mineral or the proceeds thereof whether or
not such conveyance or assignment is in connection with or substantially
simultaneous with an extension of credit to the grantee or assignee thereunder
on a basis providing for repayment of all or substantially all of such advance
out of such proceeds or out of production from such interest; (v) any lien upon
any Property owned by the Company or any Material Subsidiary or in which the
Company or any Material Subsidiary owns an interest to secure payment of its
proportionate part of the expenses of developing or conducting operations for
the recovery, storage, transportation or sale of the mineral resources of such
Property (or Property with which it is unitized); (vi) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company or
such Material Subsidiary; (vii) Liens (not otherwise permitted hereunder) which
secure indebtedness for borrowed money not exceeding (as to the Company and all
Material Subsidiaries) $60,000,000 in aggregate amount at any time outstanding;
(viii) any Liens securing indebtedness for borrowed money of a wholly-owned
Material Subsidiary of the Company, to the Company or to another wholly-owned
Material Subsidiary of the Company; (ix) Liens for taxes not yet due or that are
being contested in good faith and by appropriate proceedings; (x) carriers',
warehousemen's, mechanic's, materialmen's, repairmen's or other like Liens
arising in the ordinary course of business; (xi) pledges and deposits made in
the ordinary course of business in compliance with workmen's compensation,
unemployment insurance and other social security laws or regulations; (xii)
deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of
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business; (xiii) Liens in favor of customs revenue authorities arising as a
matter of law to secure payment of customs duties; (xiv) any extension, renewal
or replacement (or successive extensions, renewals or replacements), in whole or
in part of any lien referred to in the foregoing clauses (i) to (v), inclusive,
provided that the obligation secured thereby shall not exceed the obligation so
secured at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to that portion of the
Property which secured the lien so extended, renewed or replaced (plus
improvements on such Property); and (xv) Liens in favor of the Collateral Agent
to secure the Pledgor Obligations (as defined in the Pledge Agreements).
(b) Limitations on Mergers, Asset Sales and Asset Purchases.
(i) Limitations on Mergers and Liquidations. It will not, and
will not permit any of its Subsidiaries to, merge, consolidate,
amalgamate or enter into any similar combination with any other Person
or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), except:
(A) Any Credit Party or any of its Subsidiaries may
merge or otherwise combine with another Person, provided that
(I) such Credit Party or its Subsidiary, as the case may be,
is the entity surviving such transaction, (II) immediately
prior to and after giving effect on a Pro Forma Basis to such
transaction, no Default or Event of Default exists or would
exist and (III) the Board of Directors of such Person has
approved such transaction;
(B) Any Borrower may merge or otherwise combine with
any other Borrower; provided that (I) if the Company is a
party to such merger, the Company shall be the survivor and
(II) the Canadian Borrower may merge into or otherwise combine
with a wholly-owned Subsidiary of the Company that will be the
surviving entity so long as, simultaneous with the
consummation of such transaction, such wholly-owned Subsidiary
has become the Canadian Borrower hereunder pursuant to a
ratification, joinder or similar agreement acceptable to the
Agents, which agreement shall be accompanied by such
supporting resolutions, articles of incorporation or similar
organizational documents, incumbency certificates, opinions of
counsel of the type required pursuant to subsection 4.1 and
other items as the Agents and/or the Required Lenders may
reasonably request;
(C) Any Credit Party that is not a Borrower may merge
or otherwise combine with any other Credit Party;
(D) Any wholly-owned Subsidiary of a Credit Party
(which Subsidiary is not itself a Credit Party) may merge or
otherwise combine with a Credit Party or any other
wholly-owned Subsidiary of a Credit Party; and
(E) Any wholly-owned Subsidiary of a Credit Party may
liquidate, wind-up or dissolve itself (I) into a Credit Party
or any other wholly-owned Subsidiary of a Credit Party or (II)
otherwise in a transaction in which the assets of
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such dissolving Subsidiary become owned by a wholly-owned
Subsidiary of a Credit Party.
(ii) Limitations on Asset Sales and Asset Purchases. It will
not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise dispose of any of its assets or purchase another Person or
the assets of another Person, in a transaction or series of related
transactions that is a Covered Transaction unless:
(A) immediately prior to and after giving effect on a
Pro Forma Basis to such transaction, no Default or Event of
Default exists or would exist;
(B) if such transaction is a purchase, such purchase
does not require a cash purchase price in excess of
$75,000,000 in the aggregate in cash consideration; and
(C) if such transaction is an Asset Disposition
consummated while any Term Loan is outstanding, no later than
two (2) Business Days prior to such Asset Disposition, the
Administrative Agent and the Lenders shall have received a
certificate of a Responsible Officer of the Company specifying
the anticipated or actual date of such Asset Disposition,
briefly describing the assets to be sold or otherwise disposed
of and setting forth the net book value of such assets, the
aggregate consideration and the Net Cash Proceeds to be
received for such assets in connection with such Asset
Disposition, and thereafter the Credit Parties shall, within
the period of 180 days following the consummation of such
Asset Disposition, apply (or cause to be applied) an amount
equal to the Net Cash Proceeds of such Asset Disposition to
(A) make Eligible Reinvestments or (B) prepay the Term Loans
in accordance with the terms of subsection 2.6(b)(ii).
(iii) Release of Capital Stock. Upon the sale of Capital Stock
of a Material Domestic Subsidiary or Material First Tier Foreign
Subsidiary permitted by this subsection 5.2(b), the Collateral Agent
shall (to the extent applicable) deliver to the Credit Parties, upon
the Credit Parties' request and at the Credit Parties' expense, such
documentation as is reasonably necessary to evidence the release of the
Collateral Agent's security interest, if any, in such Capital Stock,
including, without limitation, amendments or terminations of UCC
financing statements, if any, the return of stock certificates, if any,
and the release of such Subsidiary from all of its obligations, if any,
under the Credit Documents.
(c) Limitations on Sale/Leaseback Transactions. It will not, and will
not permit any of the Material Subsidiaries to, sell or transfer any
manufacturing Properties to anyone (other than the Company or to a Material
Subsidiary in which the Company owns 50% or more of the voting stock) with the
intention of taking back a lease of such Property or any similar Property,
except in connection with a lease for a temporary period during or at the end of
which it is intended that the use by the Company or its Material Subsidiary of
such Property will be discontinued.
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(d) Financial Covenants.
(i) Leverage Ratio. It will not permit, as of the last day of
any fiscal quarter, the Leverage Ratio to exceed the ratio set forth
below for the applicable period:
<TABLE>
<CAPTION>
Period Maximum Leverage Ratio
------ ----------------------
<S> <C>
Closing Date through March 31, 1999 5.0 to 1.0
April 1, 1999 through September 30, 1999 4.5 to 1.0
October 1, 1999 through September 30, 2000 3.5 to 1.0
October 1, 2000 through Termination Date 3.0 to 1.0
</TABLE>
(ii) Minimum Net Worth. It will not permit at any time
Consolidated Net Worth to be less than $520,000,000, increased on a
cumulative basis as of the last day of each fiscal quarter (commencing
on December 31, 1998) by an amount equal to the sum of (x) 40% of
Consolidated Net Income, if positive, for such fiscal quarter and (y)
80% of any Equity Issuances (including an issuance of hybrid equity
securities (e.g., trust preferred capital securities), but only if such
issuance increases Consolidated Net Worth) commenced in such fiscal
quarter.
(iii) Interest Coverage Ratio. It will not permit, as of the
last day of any fiscal quarter, the Interest Coverage Ratio to be less
than the ratio set forth below for the applicable period:
<TABLE>
<CAPTION>
Period Minimum Interest Coverage Ratio
------ -------------------------------
<S> <C>
Closing Date through September 30, 1999 2.5 to 1.0
October 1, 1999 through Termination Date 3.0 to 1.0
</TABLE>
(e) Limitations on Transactions with Affiliates. It will not, and will
not permit any of its Subsidiaries to, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary course of its or
such Subsidiary's business (or is a transaction among wholly-owned Subsidiaries
of the Company) and (c) upon fair and reasonable terms no less favorable to it
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate; provided that
it shall not be a breach of this covenant to the extent that the failure of the
Company or any of its Subsidiaries to comply with the foregoing would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect.
(f) Limitations on Indebtedness of the Material Subsidiaries. It will
not permit any of the Material Subsidiaries to contract, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Amended and Restated
Credit Agreement and the other Credit Documents;
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(ii) Indebtedness of the Material Subsidiaries set forth in
Schedule IV (but not including any renewals, refinancings or extensions
thereof);
(iii) obligations of the Material Subsidiaries in respect of
Hedging Agreements entered into in order to manage existing or
anticipated interest rate or exchange rate risks and not for
speculative purposes;
(iv) obligations of the Material Subsidiaries in connection
with any Permitted Receivables Financing, to the extent such
obligations constitute Indebtedness;
(v) intercompany Indebtedness owing by a Material Subsidiary
to the Company or to another wholly-owned Material Subsidiary of the
Company;
(vi) in addition to the Indebtedness otherwise permitted by
this subsection 5.2(f), other Indebtedness hereafter incurred by the
Material Subsidiaries provided that (A) the aggregate outstanding
principal amount of such Indebtedness shall not exceed $150,000,000 at
any time and (B) such Indebtedness shall not cause the Company and the
Material Subsidiaries to violate the provisions of subsection
5.2(a)(vii); and
(vii) guaranty obligations of the Material Subsidiaries
arising under the Prudential Documents.
(g) Fiscal Year; Organizational Documents. It will not (i) without the
prior written consent of the Required Lenders, change its fiscal year or make
any material change, or permit any of the Material Subsidiaries to make any
material change, to its accounting treatment and reporting practices under GAAP
(except as required by GAAP; notwithstanding the foregoing, a Material
Subsidiary that is not a Credit Party may change its fiscal year to coincide
with the fiscal year of the Company at any time without the consent of the
Required Lenders) or (ii) without the prior written consent of the
Administrative Agent, amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document).
(h) Limitation on Restricted Actions. It will not, and will not permit
any of the Material Subsidiaries (other than a Receivables Financing SPC in
connection with a Permitted Receivables Financing) to, directly or indirectly,
create or otherwise cause, incur, assume, suffer or permit to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Person to (i) pay dividends or make any other distribution on any of
such Person's capital stock, (ii) pay any Indebtedness owed to the Company or
any other Credit Party, (iii) make loans or advances to any other Credit Party
or (iv) transfer any of its property to any other Credit Party, except for
encumbrances or restrictions existing under or by reason of (A) customary
non-assignment or net worth provisions in any lease governing a leasehold
interest, (B) any agreement or other instrument of a Person existing at the time
it becomes a Subsidiary of the Borrower; provided that such encumbrance or
restriction is not applicable to any other Person, or any property of any other
Person, other than such Person becoming a Subsidiary of the Borrower and was not
entered into in contemplation of such Person becoming a Subsidiary of the
Borrower, (C) this Amended and Restated Credit Agreement and the other Credit
Documents and (D) the Prudential Documents.
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(i) No Other Negative Pledges. It will not, and will not permit any of
the Material Subsidiaries to, enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation, except pursuant to (x) the documents executed in
connection with any Permitted Receivables Financing (but only to the extent that
the related prohibitions against other encumbrances pertain to the applicable
transferred assets actually sold, contributed, financed or otherwise conveyed or
pledged pursuant to such Permitted Receivables Financing), (y) this Amended and
Restated Credit Agreement and the other Credit Documents, and (z) the Prudential
Documents.
SECTION 6. DEFAULTS.
6.1. DEFAULTS; EVENTS OF DEFAULT; CERTAIN REMEDIES.
If any of the following events shall occur and be continuing:
(a) (i) any Borrower shall fail to pay the principal amount of any Note
or any LOC Obligation, or the Face Amount of any Bankers' Acceptance, when due
and payable in accordance with the terms thereof or hereof or (ii) any Credit
Party shall fail to pay any installment of interest on any Note or any Facility
Fee or other amount payable hereunder or under any of the other Credit Documents
and, in connection with any such failure described in this clause (a)(ii), such
amount is not paid within three (3) days after the due date thereof;
(b) any Credit Party shall (i) fail to perform or observe any covenant
contained in subsections 5.1(e), (h), (i) or (j) or subsection 5.2 hereof or
(ii) fail to perform or observe any covenant contained in subsections
5.1(a)(i)(A), (B) or (E) or subsection 5.1(a)(ii) hereof and such failure
referred to in this subsection 6.1(b)(ii) shall continue unremedied for a period
of five (5) days after the earlier of a Responsible Officer of the Company
becoming aware of such failure or written notice specifying such failure and
stating that such notice is a "Notice of Default" hereunder is given, by
registered or certified mail or by courier, to the Company on behalf of the
Credit Parties by the Administrative Agent or any Lender;
(c) any Credit Party shall fail to perform or observe (i) any term,
covenant or agreement contained herein or in any Note (other than those
specified in clauses (a) or (b) above) and such failure shall continue
unremedied for a period of thirty (30) days after the earlier of a Responsible
Officer of the Company becoming aware of such failure or written notice
specifying such failure and stating that such notice is a "Notice of Default"
hereunder is given, by registered or certified mail or by courier, to the
Company on behalf of the Credit Parties by the Administrative Agent or any
Lender or (ii) any term, covenant or agreement contained in any other Credit
Document and such failure shall continue unremedied beyond any applicable grace
or cure period;
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(d) any representation or warranty made or deemed made by a Credit
Party pursuant to this Agreement or in any other Credit Document or in any other
document or certificate delivered pursuant hereto shall prove to have been
incorrect or misleading in any material respect as of the date made or deemed
made;
(e) the Company or any Material Subsidiary shall fail to pay at
maturity, or within any applicable period of grace, any Indebtedness (other than
the Indebtedness referred to in clause (a) above) or any obligations under
Hedging Agreements, in each case with an outstanding principal or notional
amount in excess of $25,000,000, or fail to observe or perform any term,
covenant or agreement contained in any agreement by which it is bound evidencing
or securing Indebtedness or any obligations under Hedging Agreements, in each
case with an outstanding principal or notional amount in excess of $25,000,000
for such period of time as would permit, or would have permitted (assuming the
giving of appropriate notice if required) the holder or holders thereof or of
any obligations issued thereunder (or a trustee or agent on behalf of such
holder or holders), to accelerate the maturity thereof, or of any such
obligation; provided, however, that if any such failure shall be cured by the
Company or such Material Subsidiary or waived by the requisite holders of the
defaulted obligations, then the default hereunder by reason of such failure
shall be deemed to have been cured and waived by the Required Lenders unless
prior thereto the Loans shall have been declared to be or shall have become
immediately due and payable hereunder; or
(f) the Company or any Material Subsidiary shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
administrator, custodian, trustee or liquidator of itself or of all or a
substantial part of its property, (ii) admit in writing its inability, or be
generally unable, to pay its debts as they become due, (iii) make a general
assignment for the benefit of its creditors, (iv) commence a voluntary case
under the Federal Bankruptcy Code (as now or hereafter in effect) or any similar
proceeding under applicable bankruptcy laws of another jurisdiction, (v) be
adjudicated as bankrupt or insolvent, (vi) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, administration,
reorganization, winding-up or composition or adjustment of debts, (vii) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under such Bankruptcy Code or
any similar proceeding under applicable bankruptcy laws of another jurisdiction,
or (viii) be authorized by its Board of Directors to take any of the foregoing
actions; or
(g) a proceeding or case shall be commenced, without the application or
consent of the Company or any Material Subsidiary, in any court of competent
jurisdiction, seeking (i) the liquidation, administration, reorganization,
dissolution or winding-up, or the composition or readjustment of debts, of the
Company or any Material Subsidiary, (ii) the appointment of a trustee, receiver,
administrator, custodian, liquidator or the like of the Company or any Material
Subsidiary, or of all or any substantial part of its assets or (iii) similar
relief in respect of the Company or any Material Subsidiary, under any law
relating to bankruptcy, insolvency, administration, reorganization, winding-up
or composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect, in any
such case for a period of sixty (60) consecutive days, or an order for relief
against the Company or any
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Material Subsidiary, shall be entered in an involuntary case under the Federal
Bankruptcy Code (as now or hereafter in effect) or any similar proceeding under
applicable bankruptcy laws of another jurisdiction; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Company, any Material
Subsidiary or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company, any Material Subsidiary or any Commonly Controlled
Entity shall, or in the reasonable opinion of the Required Lenders is likely to,
incur any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(i) One or more judgments or decrees shall be entered against the
Company or any Material Subsidiary, involving in the aggregate a liability (not
paid or fully covered by insurance) of $50,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(j) This Agreement, any of the Notes or any other Credit Document shall
cease, for any reason, to be in full force and effect, or any Credit Party shall
so assert or any Credit Party shall disaffirm or deny any of its obligations
thereunder; or
(k) Any of (i) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of more than 30% of then outstanding voting stock of the Company, (ii)
the Company shall merge or consolidate with any Person other than in a
transaction permitted under subsection 5.2(b) or (iii) any Borrower shall cease
to be a wholly-owned Subsidiary of the Company;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) or (g) above, automatically (i) the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement, the Notes and the other Credit
Documents shall immediately become due and payable and (ii) the Credit Parties
shall immediately be required to pay to the Administrative Agent or the Canadian
Administrative Agent, as applicable, additional cash, to be held by such Agent,
for the benefit of the applicable Lenders, in a cash collateral account as
additional security for (x) the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount equal to the
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maximum aggregate amount which may be drawn under all Letters of Credits then
outstanding and (y) the BA Revolving Obligations in respect of subsequent
maturities under all outstanding Bankers' Acceptances in an amount equal to the
maximum amount of all BA Revolving Obligations, and (B) if such event is any
other Event of Default, any or all of the following actions may, with the
consent of the Required Lenders, or shall, upon the request of the Required
Lenders, be taken by the Administrative Agent: (i) the Administrative Agent may
or shall, as applicable, by notice to the Company declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
(ii) the Administrative Agent may or shall, as applicable, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement, the Notes and the other Credit Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable; (iii)
the Administrative Agent may or shall, as applicable, direct the Credit Parties
to pay (and the Credit Parties agree that upon receipt of such notice they will
immediately pay) to the Administrative Agent or the Canadian Administrative
Agent, as applicable, additional cash, to be held by such Agent, for the benefit
of the applicable Lenders, in a cash collateral account as additional security
for (x) the LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum aggregate amount
which may be drawn under all Letters of Credits then outstanding and (y) the BA
Revolving Obligations in respect of subsequent maturities under all outstanding
Bankers' Acceptances in an amount equal to the maximum amount of all BA
Revolving Obligations; and (iv) the Administrative Agent may or shall, as
applicable, enforce any and all rights and interests created and existing under
the Credit Documents including, without limitation, all rights and remedies
existing under the Collateral Documents, all rights and remedies against a
Guarantor and all rights of set-off. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
6.2. CONVERSION AND REDENOMINATION CERTAIN LOANS; PURCHASE OF RISK
PARTICIPATIONS.
(a) Conversion and Redenomination of Certain Loans. Notwithstanding
anything herein to the contrary, upon a termination of the Commitments following
the occurrence of an Event of Default (a "Commitment Termination Event"), all
outstanding Loans denominated in a Foreign Currency or bearing interest at a
rate other than the ABR shall be redenominated and/or converted into ABR Loans
in U.S. Dollars on and with effect from the soonest practicable date following
the Commitment Termination Event as determined by the Administrative Agent (the
"Conversion Date"). The Borrowers hereby agree to pay to the Administrative
Agent, for the pro rata benefit of the Lenders, on the Conversion Date any
amounts owing pursuant to subsection 3.5 as a result of any such conversion
occurring prior to the end of an Interest Period. The Administrative Agent will
promptly notify the Company and the Lenders of any such redenomination and
conversion following a Commitment Termination Event.
(b) Purchase of Risk Participations. Each Revolving Credit Lender
hereby agrees that it shall forthwith purchase, as of the Conversion Date (but
adjusted for any payments received from a Borrower on or after such date and
prior to such purchase), from the other Revolving Credit Lenders such
Participation Interests in the outstanding Revolving Credit Loans (whether or
not such Loans have been redenominated or converted pursuant to subsection
6.2(a)) as shall be
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necessary to cause each such Revolving Credit Lender to share in all Revolving
Credit Loans ratably based upon its Commitment Percentage with respect to
Participation Interests in all Revolving Credit Loans (determined before giving
effect to any termination of the Commitments), provided that (A) all interest
payable on a Revolving Credit Loan shall be for the account of the Revolving
Credit Lender that originally made such Loan until the date as of which the
respective Participation Interest is purchased and (B) if any purchase of a
Participation Interest required to be made pursuant to this sentence is not made
on the Conversion Date, then at the time such purchase is actually made the
purchasing Lender shall be required to pay to the selling Lender, to the extent
not paid to such selling Lender by the applicable Borrower in accordance with
the terms of this Agreement, interest on the principal amount of the
Participation Interest purchased for each day from and including the day upon
which such purchase of the Participation Interest would otherwise have occurred
to but excluding the date of actual payment for the purchase of such
Participation Interest, at the rate equal to the Federal Funds Effective Rate
(as defined in the definition of "ABR").
SECTION 7. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings (and including the plural as well as the singular):
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum established from time to time by the Administrative Agent as its prime
rate in effect at its principal office in Charlotte, North Carolina (the Prime
Rate not being intended to be the lowest rate of interest charged by
NationsBank, N.A. in connection with extensions of credit to debtors); and
"Federal Funds Effective Rate", shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. If for
any reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the ABR shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances giving rise to
such inability no longer exist. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans denominated in U.S. Dollars the rate of interest
applicable to which is based upon the ABR.
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"Acceptance Fee": an amount equal to the product of (a) the Applicable
Margin for Revolving Eurodollar Loans and Bankers' Acceptances; (b) the
aggregate Face Amount of Bankers' Acceptances accepted by a Canadian Lender on
the date of the requested Bankers' Acceptances; and (c) a fraction (i) the
numerator of which is the term to maturity of such Bankers' Acceptances, and
(ii) the denominator of which is 365 days.
"Acquisition": the acquisition by the Company and/or any of its
Subsidiaries of the Capital Stock of BetzDearborn pursuant to the Merger
Agreement.
"Additional Credit Party": each Person that becomes a Guarantor after
the Closing Date, as provided in subsection 5.1(j).
"Administrative Agent": NationsBank, N.A. or any successor.
"Affiliate": as to any specified Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a specified Person means the power, directly or indirectly, either
to (a) vote 20% or more of the securities having ordinary voting power for the
election of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person whether through the ownership of voting
securities, by contract or otherwise.
"Agents": the Administrative Agent and the Canadian Administrative
Agent.
"Agreement": this Agreement, as amended, supplemented or modified from
time to time.
"Applicable BA Discount Rate": (i) with respect to any Canadian Lender
named on Schedule I to the Bank Act (Canada), as applicable to a Bankers'
Acceptance being purchased by such Lender on any day, the respective percentage
discount rate per annum for a Canadian Dollar bankers' acceptance for the term
and face amount comparable to the term and face amount of such Bankers'
Acceptance that appears on the Reuters Screen CDOR Page as of 10:00 A.M.
(Toronto, Ontario time) on the date of determination as reported by the Canadian
Administrative Agent; provided, however, that if no rate appears on the Reuters
Screen CDOR Page as contemplated then the CDOR Rate on any date shall be
calculated as the arithmetic mean of the rates for the applicable term referred
to above applicable to Canadian Dollar bankers' acceptances quoted by Canadian
chartered banks named on Schedule I to the Bank Act (Canada) as of 10:00 a.m.
(Toronto, Ontario time) on such applicable date and (ii) with respect to any
Canadian Lender named on Schedule II to the Bank Act (Canada), as applicable to
a Bankers' Acceptance being purchased by such Lender on any day, the lesser of
(x) the average (as determined by the Canadian Administrative Agent) of the
respective percentage discount rates (expressed to two decimal places and
rounded upward, if necessary, to the nearest 1/100th of 1%) quoted to the
Canadian Administrative Agent by each of Bank of America Canada and Citibank
Canada (each a "Schedule II Reference Bank") as the percentage discount rate at
which such Schedule II Reference Bank would, in accordance with its normal
practices, at or about 10:00 A.M. (Toronto time) on such day, be prepared to
purchase bankers' acceptances accepted by such Schedule II
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Reference Bank having a term and a face amount comparable to the term and face
amount of such Bankers' Acceptance and (y) the rate that is 10 basis points per
annum in excess of the rate determined pursuant to clause (i) of this definition
in connection with the relevant issuance of Bankers' Acceptances.
"Applicable Margin": with respect to (a) Eurodollar Loans and Bankers'
Acceptances, (b) Base Rate Loans and (c) the Facility Fees, the rate per annum
applicable on any date determined based upon the ratings applicable on such date
to the Company's long-term senior unsecured non-credit-enhanced debt securities
(the "Index Debt") by Moody's and S&P as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Applicable
Margin for
Revolving
Eurodollar Applicable
Loans and Applicable Applicable Margin for
Bankers' Margin for Margin for Term Base Rate
Clause Rating Acceptances Facility Fees Eurodollar Loans Loans
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
(1) =>BBB from S&P and =>Baa2 from .375% .175% .550% 0%
Moody's
(2) BBB from S&P or Baa2 from Moody's .425% .200% .625% 0%
(but not both)
(3) BBB- from S&P and Baa3 from Moody's .525% .225% .750% 0%
(4) BBB- from S&P or Baa3 from Moody's .750% .250% 1.000% 0%
(but not both)
(5) BB+ from S&P and Ba1 from Moody's .950% .300% 1.250% 0%
(6) BB+ from S&P or Ba1 from Moody's 1.400% .350% 1.750% .500%
(but not both)
(7) <=BB from S&P and <=Ba2 from Moody's 1.500% .500% 2.000% .750%
- ------------ -------------------------------------- ---------------- ------------------ ----------------- ---------------
</TABLE>
For purposes of the foregoing, (i) if neither Moody's nor S&P shall have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then both such rating
agencies will be deemed to have established the ratings referred to in clause
(7) above for the Index Debt; (ii) if only one of Moody's or S&P shall have in
effect a rating for the Index Debt, the Company and the Lenders will negotiate
in good faith to agree upon another rating agency to be substituted by an
amendment to this Agreement for the rating agency which shall not have a rating
in effect, and in the absence of such amendment the Applicable Margin will be
determined by reference to the available rating; (iii) if the ratings
established by Moody's and S&P shall indicate different clauses specified above,
the Applicable Margin shall be determined by reference to the numerically lower
clause, unless such numerically lower clause is more than one numeral lower than
the clause indicated by the other rating, in which case the clause which is one
number lower than such higher numbered clause shall apply (thus, by way of
example, if the Company's Index Debt is rated BBB by S&P and Ba1 by Moody's, the
clauses indicated are (2) and (5), respectively, resulting in the Applicable
Margin being determined by reference to clause (4), which clause is one number
lower than such higher numbered clause);
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provided, however, that the Applicable Margin shall be determined by reference
to clause (7) if the Company's Index Debt is rated worse than BB by S&P or worse
than Ba2 by Moody's; (iv) if any rating established by Moody's or S&P shall be
changed (other than as a result of a change in the rating system of either
Moody's or S&P) such change shall be effective as of the date on which such
change is first announced by the rating agency making such change; and (v)
notwithstanding anything in this definition of "Applicable Margin" to the
contrary, (a) from the Closing Date until the Tranche B Term Loan has been fully
repaid, the Applicable Margin will be determined by reference to clause (7)
above and (b) in no event shall (1) the Applicable Margin for Revolving
Eurodollar Loans and Bankers' Acceptances be less than 1.150%, (2) the
Applicable Margin for Term Eurodollar Loans be less than 1.500%, (3) the
Applicable Margin for Base Rate Loans be less than .500% or (4) the Applicable
Margin for Facility Fees be less than .350%, in each case prior to the date that
is six (6) months from the Closing Date. Each change in the Applicable Margin
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of either Moody's or S&P shall change prior to the
Termination Date, the Company and the Lenders shall negotiate in good faith to
amend the references to specific ratings in this definition to reflect such
changed rating system. If both Moody's and S&P shall cease to be in the business
of rating corporate debt obligations, the Company and the Lenders shall
negotiate in good faith to agree upon a substitute rating agency and to amend
the references to specific ratings in this definition to reflect the ratings
used by such substitute rating agency.
"Applicant Borrower": as defined in subsection 2.13.
"Asset Disposition": the disposition of any or all of the assets
(including without limitation the Capital Stock of a Subsidiary) of the Company
or any of its Consolidated Subsidiaries whether by sale, lease, transfer or
otherwise (including a disposition pursuant to any casualty or condemnation
event, but excluding a disposition pursuant to a Permitted Receivables
Financing). The term "Asset Disposition" shall not include (i) the sale of
inventory in the ordinary course of business, (ii) the sale or disposition of
machinery and equipment no longer used or useful in the conduct of such Person's
business or (iii) any Equity Issuance.
"Assignee": as defined in subsection 9.6(c).
"Attributed Principal Amount": on any day, with respect to any
Permitted Receivables Financing entered into by the Company or any of its
Consolidated Subsidiaries, the aggregate amount (with respect to any such
transaction, the "Invested Amount") paid to, or borrowed by, such Person as of
such date under such Permitted Receivables Financing, minus the aggregate amount
received by the applicable Receivables Financier (as defined in the definition
of "Permitted Receivables Financing") and applied to the reduction of the
Invested Amount under such Permitted Receivables Financing.
"BA Discount Proceeds": proceeds in respect of any Bankers' Acceptance
to be purchased on any day under subsection 2.18(a), in an amount (rounded to
the nearest whole Canadian cent, and with one-half of one Canadian cent being
rounded up) calculated on such day by dividing:
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(a) the Face Amount of such Bankers' Acceptance; by
(b) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed as a decimal)
applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptance and the denominator
of which is 365;
with such product being rounded up or down to the fifth decimal place
and .000005 being rounded up.
"BA Documents": with respect to any Bankers' Acceptance, such documents
and agreements as the Canadian Lenders may require in connection with the
creation of such Bankers' Acceptance.
"BA Revolving Obligations": all obligations of the Canadian Borrower
with respect to Bankers' Acceptances created under the Canadian Revolving
Committed Amount.
"BACAN U.S. Base Rate": The higher of (a) the Federal Funds Effective
Rate (as defined in the definition of "ABR") and (b) the BACAN U.S. Prime Rate;
provided, however, that if, in the reasonable judgment of the Canadian
Administrative Agent, the Federal Funds Effective Rate cannot be determined,
then "BACAN U.S. Base Rate" shall mean the BACAN U.S. Prime Rate.
"BACAN U.S. Prime Rate": means, for any day, the fluctuating rate of
interest publicly announced by the Canadian Administrative Agent as its "prime
rate" or "reference rate" for loans made in U.S. Dollars in Canada, which rate
is not necessarily the best or lowest rate of interest offered for loans in U.S.
Dollars by the Canadian Administrative Agent.
"Bankers' Acceptance": a depository bill as defined in the Depository
Bills and Notes Act (Canada) in Canadian Dollars that is in the form of an order
signed by the Canadian Borrower and accepted by a Canadian Lender pursuant to
this Agreement or, for Lenders not participating in clearing services
contemplated in that Act, a draft or bill of exchange in Canadian Dollars
payable in Canada that is drawn in Canada by the Canadian Borrower and accepted
by a Canadian Lender pursuant to this Agreement. Orders that become depository
bills, drafts and bills of exchange are sometimes collectively referred to in
this Agreement as "orders".
"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the ABR, the Canadian Prime Rate or the BACAN U.S. Base Rate.
"BetzDearborn": BetzDearborn, Inc., a Pennsylvania corporation.
"Borrower": any of (a) the Company, (b) in connection with U.S.
Revolving Loans and Multicurrency Revolving Loans, the Company's Subsidiaries
that have become Designated
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Borrowers pursuant to subsection 2.13 and (c) in connection with Canadian
Revolving Loans, the Canadian Borrower, as the context may require.
"Borrower Joinder Agreement": a Borrower Joinder Agreement for
Applicant Borrowers referenced in subsection 2.13, a form of which is attached
as Exhibit D.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.5, 2.15(b)(i) or 2.16(b) as a date on which the Company or the
Canadian Borrower, as applicable, requests (i) the applicable Lender(s) to make
Revolving Credit Loans and/or Swingline Loans hereunder, (ii) the Issuing Lender
to issue or extend a Letter of Credit hereunder or (iii) the Canadian Lenders to
create Bankers' Acceptances.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in Charlotte, North Carolina or New York City are
authorized or required by law to close, except that, when used in connection
with (a) a Eurodollar Loan, such day shall also be (i) a day on which dealings
between banks are carried on in U.S. Dollar deposits in the London interbank
market and (ii) if such Eurodollar Loan is denominated in Euros, a day on which
banks are generally open for business in Frankfurt am Main, Germany and (b) a
Canadian Revolving Loan or a Bankers' Acceptance, such day shall not include any
day on which banking institutions in Toronto, Ontario are authorized or required
by law to close.
"Canadian Administrative Agent": Bank of America Canada or any
successor.
"Canadian Base Rate Revolving Loans": the Canadian Revolving Loans made
by the Canadian Lenders accruing interest at either the Canadian Prime Rate or
the BACAN U.S. Base Rate, as applicable, plus, in each case, the Applicable
Margin for Base Rate Loans.
"Canadian Borrower": BetzDearborn Canada, Inc., an Ontario corporation.
"Canadian Borrower Note": as defined in subsection 2.2.
"Canadian Facility Fee": as defined in subsection 2.4(a)(iii).
"Canadian Dollars" and "C$": dollars in lawful currency of Canada.
"Canadian Lender": each Lender identified on Schedule I as having a
Commitment under the Canadian Revolving Committed Amount in its capacity as a
Lender of Canadian Revolving Loans, and each Lender that purchases an assignment
of such a Commitment or of such Loans in accordance with the terms of this
Agreement.
"Canadian Prime Rate": means, for any day, the greater of (a) the
variable rate of interest per annum equal to the rate of interest determined by
the Canadian Administrative Agent from time to time as its respective prime rate
for Canadian Dollar loans made by the Canadian Administrative Agent in Canada,
being a variable per annum reference rate of interest adjusted automatically
upon change by the Canadian Administrative Agent, and calculated on the basis of
a year of 365 days and (b) the sum
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of (i) the rate per annum for a Canadian Dollar bankers' acceptance having a
term of 30 days that appears on the Reuters Screen CDOR Page as of 10:00 A.M.
(Toronto, Ontario time) on the date of determination, as reported by the
Canadian Administrative Agent plus (ii) .50% per annum.
"Canadian Revolving Committed Amount": as defined in subsection 2.1(c).
"Canadian Revolving Loans": the revolving credit loans made by the
Canadian Lenders to the Canadian Borrower pursuant to subsection 2.1(c).
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Closing Date": October 15, 1998.
"Code": the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations issued thereunder as in effect from time to
time.
"Collateral": all collateral described in and covered by the Collateral
Documents.
"Collateral Agent": NationsBank, N.A. (or any successor thereto) or any
successor agent appointed pursuant to subsection 8.9.
"Collateral Documents": the Pledge Agreements, and such other documents
executed and delivered in connection with the attachment and perfection of the
Lenders' security interests in the Collateral, including without limitation, UCC
financing statements; provided that it is understood that such Collateral
Documents will be effective only during the Collateral Period.
"Collateral Effective Date": a date subsequent to the Closing Date on
which the Index Debt is rated worse than BB+ by S&P or rated worse than Ba1 by
Moody's.
"Collateral Period": the period in time from the Collateral Effective
Date until a subsequent Credit Improvement Date.
"Commitment": (i) as to any Lender, the obligations of such Lender to
make Revolving Credit Loans to the Borrowers and Term Loans to the Company
hereunder and to purchase Participation Interests in the Swingline Loans in
accordance with the provisions of subsection 2.15 and in LOC Obligations in
accordance with the provisions of subsection 2.16(c), such obligations in an
aggregate amount with respect to principal at any one time outstanding not to
exceed the amount set forth under the column heading "Total Commitment" across
from such
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Lender's name on Schedule I, as such amounts may be reduced from time to time in
accordance with the provisions of this Agreement, (ii) as to the Swingline
Lender, the obligation of the Swingline Lender to make Swingline Loans hereunder
and (iii) as to the Issuing Lender, the obligation of the Issuing Lender to
issue or extend Letters of Credit hereunder.
"Commitment Percentage": as to any Lender, the relevant percentage set
forth on Schedule I with respect to a Revolving Committed Amount, Bankers'
Acceptances, Participation Interests in Swingline Loans and LOC Obligations, a
particular Term Loan Tranche or the Total Commitment, as the context may require
(or, at any time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Loans and
Participation Interests in Swingline Loans and LOC Obligations then outstanding
constitutes of the aggregate principal amount of the Loans and LOC Obligations
then outstanding).
"Commitment Period": the period from and including the Closing Date to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with a Credit Party within the meaning of Section
4001 of ERISA or is part of a group which includes a Credit Party and which is
treated as a single employer under Section 414 of the Code.
"Company": Hercules Incorporated, a Delaware corporation.
"Consolidated EBITDA": for any fiscal period, (i) Consolidated Net
Income for such period, plus (ii) Consolidated Interest Expense for such period,
plus (iii) to the extent deducted in computing such Consolidated Net Income, the
sum of (a) taxes, (b) depreciation, (c) amortization, (d) any non-cash charges
and (e) any extraordinary, unusual or non-recurring cash losses or cash charges
incurred in connection with (x) the Acquisition in an amount not to exceed $170
million after taxes in the aggregate for all such add-backs pursuant to this
subclause (x) and (y) the settlement prior to the Closing Date of certain
litigation in an amount not to exceed $63 million after taxes in the aggregate
for all such add-backs pursuant to this subclause (y), minus (iv) any
extraordinary gains and noncash gains.
"Consolidated Interest Expense": for any fiscal period, the amount of
interest expense paid, accrued or capitalized by the Company and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, including imputed interest expense paid in respect of Capital Lease
obligations and any dividends paid on hybrid equity securities that are tax
deductible (such as dividends on trust preferred capital securities) (but, with
respect to such dividends on hybrid equity securities, without duplication to
the extent a comparable amount is taken by the Company as interest expense on
the interest paid on the related subordinated debt to the Preferred Stock SPC).
"Consolidated Net Income": for any fiscal period, net income of the
Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
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"Consolidated Net Worth": as of the end of the most recently ended
calendar month, the sum of (i) all items that would be included under
stockholders' equity on a consolidated balance sheet of the Company and its
Consolidated Subsidiaries plus (ii) insurance reserves. Consolidated Net Worth
shall be determined in accordance with generally accepted accounting principles
substantially the same as those used by the Company in preparing the financial
statements referred to in subsection 1.2 and on a consolidated basis
substantially the same as that used by the Company in preparing such financial
statements; provided, however, that (A) foreign currency translation adjustments
under Financial Accounting Standards Board Statement No. 52, "Foreign Currency
Translation" and (B) items reported in comprehensive income and accumulated
other comprehensive income under Financial Accounting Standards Board Statement
No. 130 (including but not limited to gains or losses for derivatives designated
as a hedge of exposure to variable cash flows of forecasted transactions and
derivatives designated as a hedge of foreign currency exposure of a net
investment in a foreign operation), shall not in either case be taken into
account in calculating Consolidated Net Worth.
"Consolidated Subsidiary": any Subsidiary the results of whose
operations are, for financial accounting purposes, consolidated with the results
of operations of the Company and its other Consolidated Subsidiaries on the most
recent annual or quarterly financial statements of the Company and its
Consolidated Subsidiaries.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Covered Transaction": the sale, lease, disposition or purchase of
assets by any Person (a) outside the ordinary course of business of such Person,
(b) other than an intercompany transfer from a Credit Party or a wholly-owned
Subsidiary of a Credit Party to a Credit Party or any wholly-owned Subsidiary of
a Credit Party and (c) in a transaction pursuant to which consideration having a
fair market value in excess of $35,000,000 is paid by or received by the Company
and its Subsidiaries.
"Credit Documents": collectively, this Agreement, the Notes, any
Borrower Joinder Agreements or Guarantor Joinder Agreements, the Collateral
Documents, any fee letters, any LOC Documents, any BA Documents and all other
related agreements and documents issued, delivered or executed hereunder or
thereunder or pursuant hereto or thereto (in each case, as the same may be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time).
"Credit Improvement Date": a date subsequent to the Closing Date on
which (i) the Company's Index Debt is rated BBB- or better by S&P or rated Baa3
or better by Moody's and (ii) the Leverage Ratio as of the end of the most
recently ended fiscal quarter shall be less than 4.0 to 1.0.
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"Credit Parties": the Borrowers and the Guarantors.
"Debt Issuance": the issuance of any Indebtedness for borrowed money by
the Company or any of its Consolidated Subsidiaries.
"Default": any event specified in subsection 6.1, whether or not any
requirement therein designated for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Designated Borrower": any Applicant Borrower that becomes a Borrower
hereunder in accordance with the provisions of subsection 2.13.
"Determination Date": means with respect to any Loan denominated in a
Foreign Currency:
(a) in connection with the origination of any new
Loan advance, the Business Day which is the earlier of the
date such credit is extended or the date the interest rate is
set;
(b) the Business Day that is (or that immediately
follows) each monthly anniversary of the Restatement Effective
Date;
(c) in connection with any conversion or continuation
of an existing Loan, the Business Day which is the earlier of
the date such advance is extended, converted or continued, or
the date the interest rate is set in connection with any such
conversion or continuation; and
(d) the date of any reduction of the Revolving
Committed Amounts pursuant to the terms of subsection 2.5; and
in addition to the foregoing, such additional dates not more
frequently than once a month as may be determined by the Administrative
Agent (at the request of the Required Lenders or otherwise).
"Dollar Amount": (a) with respect to an amount of U.S. Dollars or an
amount denominated in U.S. Dollars, such amount and (b) with respect to an
amount of any Foreign Currency or an amount denominated in such Foreign
Currency, the Dollar Equivalent of such amount on the applicable date
contemplated in this Agreement, in each case as determined as of the most recent
Determination Date. Upon request, the Administrative Agent will promptly notify
the Company of the current Dollar Amount for a given amount of Foreign Currency.
"Dollar Equivalent": means, on any date, with respect to an amount
denominated in a Foreign Currency, the amount of U.S. Dollars into which the
Administrative Agent could, in accordance with its practice from time to time in
the interbank foreign exchange market, convert such amount of such Foreign
Currency at its spot rate of exchange (inclusive of all reasonable
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related costs of conversion, if any, that are actually incurred) at or about
10:00 A.M., Charlotte, North Carolina time, on such date.
"Domestic Subsidiaries": each direct and indirect Subsidiary of the
Company that (a) is domiciled, incorporated or organized under the laws of any
State of the United States or the District of Columbia or (b) maintains the
majority of its assets (determined on a consolidated basis) in the United States
of America.
"Eligible Reinvestment": an acquisition of assets that is (i) not
prohibited under subsection 5.2(b)(ii) and (ii) an acquisition of another
business or any substantial part of another business or other long-term assets,
in each case, in, or used or useful in, the same or a similar line of business
as the Company and its Subsidiaries were engaged in on the Closing Date, or any
reasonable extensions or expansions thereof.
"Environmental Laws": any and all lawful and applicable Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or other governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including, without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
"Equity Issuance": any issuance by the Company or any Consolidated
Subsidiary to any Person other than the Company or a Consolidated Subsidiary of
(a) shares of its Capital Stock, specifically including any hybrid equity
securities (e.g., trust preferred capital securities), (b) any shares of its
Capital Stock pursuant to the exercise of options or warrants or (c) any shares
of its Capital Stock pursuant to the conversion of any debt securities to
equity. The term "Equity Issuance" shall not include any Asset Disposition.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
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"Eurodollar Rate": for the Interest Period for each Eurodollar Loan
comprising part of the same borrowing (including conversions, continuations and
renewals), a per annum interest rate determined pursuant to the following
formula:
Eurodollar Rate = London Interbank Offered Rate
---------------------------------------
1 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans in
the same currency the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Euros": the european single or common currency available as a result
of the implementation of the European economic and monetary union ("EMU"), which
currency replaces the lawful currency of the state issuing the same.
"Event of Default": any event specified in subsection 6.1, provided
that any requirement therein designated for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": as defined in the Recitals hereof.
"Existing Letters of Credit": those letters of credit described on
Schedule VI.
"Face Amount": means, in respect of a Bankers' Acceptance, the amount
payable to the holder thereof on maturity.
"Facility Fees": collectively, the U.S. Facility Fee, the Multicurrency
Facility Fee and the Canadian Facility Fee.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"First Tier Foreign Subsidiary": at any date of determination, each
Foreign Subsidiary in which any one or more of the Company and its Material
Domestic Subsidiaries owns more than 50%, in the aggregate, of the voting
Capital Stock of such Foreign Subsidiary.
"Foreign Currency": Euros and Canadian Dollars.
"Foreign Subsidiaries": all Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
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"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guaranteed Obligations": without duplication, (a) in the case of the
Company, all of the obligations of the Borrowers (other than the Company) owing
(i) to the Lenders (including the Swingline Lender and the Issuing Lender) and
the Agents, whenever arising, under this Agreement, the Borrower Joinder
Agreements, the Notes, the Collateral Documents or any of the other Credit
Documents to which a Borrower is a party and (ii) to any Lender or any Affiliate
of a Lender arising under Hedging Agreements, and (b) in the case of any other
Guarantor, all of the obligations of the Credit Parties owing (i) to the Lenders
(including the Swingline Lender and the Issuing Lender) and the Agents, whenever
arising, under this Agreement, the Borrower Joinder Agreements, the Guarantor
Joinder Agreements, the Notes, the Collateral Documents or any of the other
Credit Documents to which a Credit Party is a party and (ii) to any Lender or
any Affiliate of a Lender arising under Hedging Agreements, in each of cases (a)
and (b) including, but not limited to, obligations with respect to principal,
interest and fees and including, without limitation (to the extent permitted by
applicable law), any amounts that would have accrued but for the automatic stay
under the Federal Bankruptcy Code (as now or hereafter in effect).
"Guarantor": each of the Company, the Material Domestic Subsidiaries
(other than a Receivables Financing SPC or a Preferred Stock SPC) and each
Additional Credit Party which has executed a Guarantor Joinder Agreement,
together with its successors and assigns; provided, however, that following a
Credit Improvement Date, the only "Guarantor" shall be the Company.
"Guarantor Joinder Agreement": a Guarantor Joinder Agreement referenced
in subsection 5.1(j), a form of which is attached as Exhibit E.
"Hazardous Materials": any substance, material or waste defined or
regulated in or under any Environmental Laws.
"Hedging Agreements": collectively, interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or option
agreements or other interest or exchange rate or commodity price hedging
agreements, in each case entered into by the Company or any of its Material
Subsidiaries.
"Indebtedness": with respect to any Person, without duplication, (i)
all indebtedness for borrowed money created, incurred, assumed or guaranteed by
such Person, (ii) all amounts owing by such Person under purchase money
mortgages or other purchase money liens or conditional sales or other title
retention agreements, (iii) all indebtedness secured by mortgages, liens,
security interests, conditional sales or other title retention agreements upon
property owned by such Person (whether or not such Person has assumed or become
liable for the payment of such indebtedness), (iv) all obligations of such
Person in respect of Financing Leases and Synthetic Leases, (v) all guaranty
obligations of such Person with respect to Indebtedness of another Person, (vi)
Indebtedness of any partnership or unincorporated joint venture with respect
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to which such Person is legally obligated or has a reasonable expectation of
being liable with respect thereto, (vii) the maximum amount of all standby
letters of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (viii) the principal amount of subordinated notes or
debentures issued by such Person to a Preferred Stock SPC in connection with
hybrid equity securities (e.g., trust preferred capital securities), and (ix)
the outstanding Attributed Principal Amount under any Permitted Receivables
Financing (other than a securitization of the receivable evidenced by the
Tastemaker note, a $500 million five-year note of IMCERA Group, Inc. bearing
interest at 6.2% and classified as "held at maturity").
"Index Debt": as defined in the term "Applicable Margin".
"Initial Hybrid Equity Transaction": the issuance, prior to or within
three (3) months of the Closing Date, of equity-like securities by the Company
and/or any of its Consolidated Subsidiaries in an amount sufficient to raise
$170 million in proceeds for the Company.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Coverage Ratio": with respect to the Company and its
Consolidated Subsidiaries for the twelve month period ending on the last day of
any fiscal quarter of the Company (and after giving effect to the Acquisition on
a Pro Forma Basis), the ratio of (a) Consolidated EBITDA for such period to (b)
Consolidated Interest Expense for such period.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June September and December, the date of repayment of principal of
such Loan and the Termination Date, (b) as to any Eurodollar Loan, the last day
of each applicable Interest Period, the date of repayment of principal of such
Loan and the applicable final maturity date specified in subsection 2.17(d), and
in addition as to any such Eurodollar Loan having an Interest Period longer than
three months, each day which is three months after the first day of such
Interest Period.
"Interest Period": (i) with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending, subject to availability, one, two, three or six months
thereafter, as selected by the respective Borrower in its notice of
borrowing or notice of conversion, as the case may be, given by the
Company with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending, subject to availability, one, two, three or six months
thereafter, as selected by the respective Borrower through irrevocable
notice from the Company to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto;
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and (ii) with respect to any Swingline Loan, a period commencing in each case on
the date of the borrowing and ending on the date agreed to by the Company and
the Swingline Lender in accordance with the provisions of subsection
2.15(b)(iii).
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry a Eurodollar Loan Interest Period
into another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
"Issuing Lender": (i) with respect to an Existing Letter of Credit, the
respective Issuing Lender referenced on Schedule VI and (ii) with respect to all
other Letters of Credit, NationsBank, N.A. (or any successor thereto).
"Lenders": the several banks and other financial institutions from time
to time parties to this Agreement.
"Letter of Credit": any letter of credit issued by the Issuing Lender
for the account of the Company in accordance with the terms of subsection 2.16,
including any Existing Letter of Credit.
"Leverage Ratio": with respect to the Company and its Consolidated
Subsidiaries for the twelve month period ending on the last day of any fiscal
quarter (and after giving effect to the Acquisition on a Pro Forma Basis), the
ratio of (a) Indebtedness of the Company and its Consolidated Subsidiaries on
the last day of such period minus the principal amount of subordinated notes or
debentures issued by the Company to a Preferred Stock SPC in connection with
hybrid equity securities (e.g., trust preferred capital securities) to (b)
Consolidated EBITDA for such period.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest to any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
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"Loan": any loan made by any Lender pursuant to this Agreement.
"LOC Commitment": the commitment of the Issuing Lender to issue Letters
of Credit in an aggregate face amount at any time outstanding (together with the
amounts of any unreimbursed drawings thereon) of up to the excess of (i) the LOC
Committed Amount over (ii) the aggregate outstanding face amount of the Existing
Letters of Credit.
"LOC Committed Amount" shall have the meaning assigned to such term in
subsection 2.16.
"LOC Documents": with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith,
any application therefor, and any agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (i) the rights and obligations of the parties
concerned or at risk or (ii) any collateral security for such obligations.
"LOC Obligations": at any time, the sum of (i) the maximum amount which
is, or at any time thereafter may become, available to be drawn under Letters of
Credit then outstanding, assuming compliance with all requirements for drawings
referred to in such Letters of Credit plus (ii) the aggregate amount of all
drawings under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed by the Company.
"London Interbank Offered Rate": with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3740 or 3750 (or any successor page(s)), as applicable, as the
London interbank offered rate for deposits in U.S. Dollars or Euros, as
appropriate, at approximately 11:00 A.M. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Telerate Page
3740 or 3750)), as applicable, the applicable rate shall be the arithmetic mean
of all such rates. If, for any reason, such rate is not available, the term
"London Interbank Offered Rate" shall mean, with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in U.S.
Dollars or Euros, as appropriate, at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"Material Adverse Effect": a material adverse effect on (i) the
operations, business, property or assets, or the condition (financial or
otherwise) of the Company and its Consolidated Subsidiaries taken as a whole or
(ii) the validity or enforceability of this Agreement and the other Credit
Documents or the rights and remedies of the Lenders hereunder or thereunder.
"Material Domestic Subsidiary": any Domestic Subsidiary that is also a
Material Subsidiary.
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"Material First Tier Foreign Subsidiary": any First Tier Foreign
Subsidiary that is also a Material Subsidiary.
"Material Subsidiary": as of any date of determination, any Domestic
Subsidiary or any Foreign Subsidiary that (a) is a Borrower, (b) is listed on
Schedule II attached hereto, which Schedule may be modified from time to time by
the Company by written notice to the Administrative Agent, (c) together with its
Subsidiaries on a consolidated basis, during the twelve months preceding such
date of determination accounts for (or to which may be attributed) 5% or more of
the net income or assets (determined on a consolidated basis) of the Company and
its Subsidiaries or (d) is otherwise necessary for the ongoing business
operations of the Company and its Subsidiaries taken as a whole.
"Merger Agreement": that certain Agreement and Plan of Merger dated as
of July 30, 1998 among the Company, Water Acquisition Co. and BetzDearborn.
"Moody's": Moody's Investors Services, Inc.
"Multicurrency Facility Fee": as defined in subsection 2.4(a)(ii).
"Multicurrency Lender": each Lender identified on Schedule I as having
a Commitment under the Multicurrency Revolving Committed Amount in its capacity
as a Lender of Multicurrency Revolving Loans, and each Lender that purchases an
assignment of such a Commitment or of such Loans in accordance with the terms of
this Agreement.
"Multicurrency Revolving Committed Amount": as defined in
subsection 2.1(b).
"Multicurrency Revolving Loans": the revolving credit loans made by the
Multicurrency Lenders to a Borrower pursuant to subsection 2.1(b).
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": the aggregate cash proceeds received by the
Company or any of its Consolidated Subsidiaries in respect of any Asset
Disposition, Equity Issuance, Debt Issuance or Permitted Receivables Financing,
net of (a) direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and (b) taxes paid or payable as
a result thereof; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received by the Company or any of its Consolidated
Subsidiaries in any Asset Disposition, Equity Issuance, Debt Issuance or
Permitted Receivables Financing.
"Non-Excluded Taxes": as defined in subsection 2.12.
"Notes": the collective reference to the Regular Notes and the Canadian
Borrower Notes.
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"Participant": as defined in subsection 9.6(b).
"Participation Interest" a purchase by a Lender of a risk participation
in Swingline Loans as provided in subsection 2.15(b), in LOC Obligations as
provided in subsection 2.16(c) or in outstanding Revolving Credit Loans of other
Lenders as provided in subsection 6.1.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Receivables Financing": any one or more receivables
financings in which (i) the Company or any of its Consolidated Subsidiaries (a)
sells (as determined in accordance with GAAP) any accounts receivable, notes
receivable, rights to future lease payments or residuals (collectively, together
with certain related property relating thereto and the right to collections
thereon, being the "Transferred Assets") to any Person that is not a Subsidiary
or Affiliate of the Company (with respect to any such transaction, the
"Receivables Financier"), (b) borrows from such Receivables Financier and
secures such borrowings by a pledge of such Transferred Assets and/or (c)
otherwise finances its acquisition of such Transferred Assets and, in connection
therewith, conveys an interest in such Transferred Assets to the Receivables
Financier or (ii) the Company or any of its Consolidated Subsidiaries sells,
conveys or otherwise contributes any Transferred Assets to a Receivables
Financing SPC, which Receivables Financing SPC then (a) sells (as determined in
accordance with GAAP) any such receivables (or an interest therein) to any
Receivables Financier, (b) borrows from such Receivables Financier and secures
such borrowings by a pledge of such receivables or (c) otherwise finances its
acquisition of such receivables and, in connection therewith, conveys an
interest in such receivables to the Receivables Financier, provided that (1)
such receivables financing shall not involve any recourse to the Company or any
of its Consolidated Subsidiaries for any reason other than (A) repurchases of
non-eligible receivables or (B) indemnifications for losses other than credit
losses related to the receivables sold in such financing, (2) such receivables
financing shall not include any guaranty obligations of the Company or any of
its Consolidated Subsidiaries, (3) the Administrative Agent shall be reasonably
satisfied with the structure of and documentation for any such transaction and
that the terms of such transaction, including the discount at which receivables
are sold, the term of the commitment of the Receivables Financier thereunder and
any termination events, shall be (in the good faith understanding of the
Administrative Agent) consistent with those prevailing in the market for similar
transactions involving a receivables originator/servicer of similar credit
quality and a receivables pool of similar characteristics and (4) the
documentation for such transaction shall not be amended or modified without the
prior written approval of the Administrative Agent.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were
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terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": a collective reference to the Pledge Agreement
dated as of the Closing Date executed by the Company and each of the Material
Domestic Subsidiaries (other than a Receivables Financing SPC or a Preferred
Stock SPC) and substantially in the form of Exhibit I attached hereto and any
and all other pledge agreements executed and delivered by the Credit Parties in
favor of the Collateral Agent, for the benefit of the Lenders and any other
creditors described therein, to secure their obligations under the Credit
Documents and any other loan documents or other agreements described therein, as
amended, modified, extended, renewed or replaced from time to time; provided
that it is understood that the Pledge Agreements will be effective only during
the Collateral Period.
"Preferred Stock SPC": a special purpose entity that is a Subsidiary or
Affiliate of the Company and that is formed for the sole and exclusive purpose
of engaging in activities in connection with the issuance of hybrid equity
securities (e.g., trust preferred capital securities).
"Pro Forma Basis": means, with respect to any transaction, that such
transaction shall be deemed to have occurred (for purposes of calculating
compliance in respect of such transaction with each of the financial covenants
set forth in subsection 5.2(d)) as of the first day of the four fiscal quarter
period ending as of the last day of the most recent fiscal quarter preceding the
date of such transaction with respect to which the Administrative Agent and the
Lenders shall have received the financial statements referred to in subsection
5.1(a). As used herein, "transaction" means any corporate merger, amalgamation
or consolidation or any asset disposition or purchase as referred to in
subsection 5.2(b). Any Indebtedness incurred or assumed by the Company or any of
its Subsidiaries in order to consummate such transaction (i) shall be deemed to
have been incurred or assumed on the first day of the applicable period and (ii)
if such Indebtedness has a floating or formula rate, then the implied rate of
interest for such Indebtedness for the applicable period for purposes of this
definition shall be determined by utilizing the rate which is or would be in
effect with respect to such Indebtedness as at the relevant date of
determination.
"Property": any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Prudential Documents": collectively, (a) the Note Purchase Agreement
dated June 19, 1989 between the BetzDearborn Inc. Stock Ownership and 401(k)
Trust (the "ESOT"), BetzDearborn and the Prudential Insurance Company of
America, as amended by a First Amendment thereto dated June 25, 1996, as further
amended by a Second Amendment thereto dated June 25, 1998, as supplemented and
amended by a Consent and Waiver and Assumption, dated October 15, 1998, and as
amended by the Third Amendment and Assumption Agreement, dated December 31, 1998
(as may be further amended, modified or supplemented from time to time, the
"Note Purchase Agreement"), (b) the notes issued by the ESOT pursuant to the
Note Purchase Agreement in the original principal amount of $100,000,000 (the
"ESOT Notes"), and (c) all other related agreements and documents issued,
delivered or executed thereunder or pursuant thereto (in each case, as the same
may be amended, modified, restated, supplemented, extended, renewed or replaced
from time to time).
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"Receivables Financing SPC": a special purpose entity that is a
Subsidiary or Affiliate of the Company and that is formed for the sole and
exclusive purpose of engaging in activities in connection with the purchase,
sale and financing of accounts receivable in connection with and pursuant to a
Permitted Receivables Financing.
"Register": as defined in subsection 9.6(d).
"Regular Note": as defined in subsection 2.2.
"Regulation": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Required Lenders": at any time, Lenders the Commitment Percentages of
which aggregate at least 51%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": when used with respect to the Company, the chief
executive officer or any senior vice president of the Company or, with respect
to financial matters, the vice president and treasurer or the assistant
treasurer of the Company; provided, however, that when used in the context of
subsection 5.2(b)(ii)(C), a "Responsible Officer" shall include the vice
president-tax of the Company as well as the chief executive officer, any senior
vice president or the vice president and treasurer or the assistant treasurer of
the Company.
"Restatement Effective Date": April 19, 1999.
"Revolving Committed Amounts": collectively, the U.S. Revolving
Committed Amount, the Multicurrency Committed Amount and the Canadian Revolving
Committed Amount.
"Revolving Credit Lender": each Lender identified on Schedule I as
having a Commitment under any Revolving Committed Amount in its capacity as a
Lender of Revolving Credit Loans, and each Lender that purchases an assignment
of such a Commitment or of such Loans in accordance with the terms of this
Agreement.
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"Revolving Credit Loans": the loans made pursuant to subsection 2.1,
which may be U.S. Revolving Loans, Multicurrency Revolving Loans and/or Canadian
Revolving Loans.
"Revolving Eurodollar Loans": Eurodollar Loans that are also Revolving
Credit Loans.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, in that Person's reasonable
belief and as of a particular date, that on such date (a) such Person is able to
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (b) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature in their ordinary course, (c) such Person is not engaged in a business or
a transaction, and is not about to engage in a business or a transaction, for
which such Person's assets would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged or is to engage, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the fair value of the
assets of such Person is not less than the amount that will be required to pay
the estimable and probable liability of such Person on its debts as they become
absolute and matured. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Specified Credit Agreements": (a) with respect to the Company, (i)
that certain Amended and Restated $700,000,000 Revolving Credit and Competitive
Advance Facility Agreement, dated as of February 7, 1997 (amending and restating
Revolving Credit and Competitive Advance Facility Agreement dated as of December
17, 1993, as amended by First Amendment, dated as of December 15, 1994 and
Second Amendment, dated as of December 15, 1995), among the Company, the several
financial institutions parties thereto, The Chase Manhattan Bank, formerly known
as Chemical Bank, as agent thereunder, Morgan Guaranty Trust Company of New
York, as documentation agent thereunder, and NationsBank, N.A., as syndication
agent thereunder, and (ii) if still in existence, the credit agreement
evidencing the related 364-day facility, (b) with respect to BetzDearborn, that
certain $750,000,000 Credit Agreement dated as of October 20, 1997 among
BetzDearborn, certain of its affiliates and The Chase Manhattan Bank and The
Chase Manhattan Bank of Canada, as Administrative Agents and (c) with respect to
FiberVisions Incorporated ("FiberVisions"), a wholly owned Subsidiary of the
Company, that certain $115,000,000 Credit Agreement dated as of June 26, 1997
among FiberVisions, certain of its Affiliates and NationsBank, N.A., as Agent.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such
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other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
"Swingline Committed Amount": as defined in subsection 2.15(a).
"Swingline Lender": NationsBank, N.A. (or any successor thereto).
"Swingline Loan": as defined in subsection 2.15(a).
"Synthetic Lease": any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP.
"Termination Date": October 15, 2003.
"Term Eurodollar Loans": Eurodollar Loans that are also Term Loans.
"Term Loan": any Loan comprising all or a portion of the Tranche A Term
Loan, the Tranche B Term Loan or the Tranche C Term Loan.
"Term Loan Tranche" as defined in subsection 2.17(a).
"Tranche A Euro Amount": as defined in subsection 2.17(b).
"Tranche A Euro Lender": each Lender identified on Schedule I as having
a Commitment to make Term Loans denominated in Euros under the Tranche A Term
Loan, in its capacity as a Lender of such Term Loans, and each Lender that
purchases an assignment of such a Commitment or of such Loans in accordance with
the terms of this Agreement.
"Tranche A Term Loan": as defined in subsection 2.17(a).
"Tranche B Term Loan": as defined in subsection 2.17(a).
"Tranche C Term Loan": as defined in subsection 2.17(a).
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"U.S. Facility Fee": as defined in subsection 2.4(a)(i).
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"U.S. Dollars" and "$": dollars in lawful currency of the United States
of America.
"U.S. Lender": each Lender identified on Schedule I as having a
Commitment under the U.S. Revolving Committed Amount in its capacity as a Lender
of U.S. Revolving Loans, and each Lender that purchases an assignment of such a
Commitment or of such Loans in accordance with the terms of this Agreement.
"U.S. Revolving Committed Amount": as defined in subsection 2.1(a).
"U.S. Revolving Loans": the revolving credit loans made by the U.S.
Lenders to a Borrower pursuant to subsection 2.1(a).
All accounting terms not otherwise defined herein shall have the
meanings assigned to them in accordance with GAAP.
SECTION 8. THE AGENTS.
8.1. APPOINTMENT.
Each Lender hereby irrevocably designates and appoints NationsBank,
N.A. as the Administrative Agent of such Lender under this Agreement and the
other Credit Documents, and each such Lender irrevocably authorizes NationsBank,
N.A., as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Each Lender hereby irrevocably designates and appoints Bank of America Canada as
the Canadian Administrative Agent of such Lender under this Agreement and the
other Credit Documents, and each such Lender irrevocably authorizes Bank of
America Canada, as the Canadian Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Credit Documents and to exercise such powers and perform such duties as are
expressly delegated to the Canadian Administrative Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Credit
Document or otherwise exist against an Agent.
8.2. DELEGATION OF DUTIES.
Each Agent may execute any of its duties under this Agreement and the
other Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel
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concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
8.3 EXCULPATORY PROVISIONS.
Neither an Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Credit Document (except for its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Company, any other Credit Party or any officer thereof contained in this
Agreement or any other Credit Document or in any certificate, report, statement
or other document referred to or provided for in, or received by such Agent
under or in connection with, this Agreement or any other Credit Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Credit Documents or for any failure of the
Company or any other Credit Party to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Credit Document, or
to inspect the properties, books or records of the Credit Parties.
8.4 RELIANCE BY AGENTS.
Each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Credit Document, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation reasonably believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Credit Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Credit Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Notes.
8.5. NOTICE OF DEFAULT.
An Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent has
received notice from a Lender or the Company referring to this Agreement,
describing such Default or Event of Default and stating
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that such notice is a "notice of default". In the event that an Agent receives
such a notice, such Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
8.6. NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender expressly acknowledges that neither an Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by an Agent hereinafter
taken, including any review of the affairs of the Credit Parties, shall be
deemed to constitute any representation or warranty by such Agent to any Lender.
Each Lender represents to the Agents that it has, independently and without
reliance upon an Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Credit Parties and made its own decision
to make its Loans hereunder and enter into this Agreement and the other Credit
Documents. Each Lender also represents that it will, independently and without
reliance upon an Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by an Agent hereunder, no Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Credit Parties which may come
into the possession of an Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
8.7. INDEMNIFICATION.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Company or another Credit Party and without
limiting the obligation of the Company or another Credit Party to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this subsection (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Commitment Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of this Agreement, any
of the other Credit Documents or any documents
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contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from such Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the payment
of the Notes and all other amounts payable hereunder or under the other Credit
Documents.
8.8. AGENT IN ITS INDIVIDUAL CAPACITY.
An Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Credit Parties as though such
Agent were not an Agent hereunder and under the other Credit Documents. With
respect to its Loans made or renewed by it and any Note issued to it, each Agent
shall have the same rights and powers under this Agreement and the Notes as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include such Agent in its individual capacity.
8.9. SUCCESSOR AGENT.
An Agent may resign as Agent upon 10 days' notice to the Lenders. If an
Agent shall resign as Agent under this Agreement and the other Credit Documents,
then the Required Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall, so long as no Event of Default
exists, be approved by the Company (which approval shall not be unreasonably
withheld), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, Canadian Administrative Agent or
Collateral Agent, as applicable, and the term "Administrative Agent", "Canadian
Administrative Agent" or "Collateral Agent", as the case may be, shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any of the other Credit Documents or any holders of
the Notes. After any retiring Agent's resignation as Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement and the other Credit
Documents.
SECTION 9. MISCELLANEOUS
9.1. AMENDMENTS AND WAIVERS.
Neither this Agreement, any other Credit Document, nor any terms hereof
or thereof may be amended, supplemented or modified except in accordance with
the provisions of this subsection. The Required Lenders may, or, with the
written consent of the Required Lenders, the Administrative Agent may, from time
to time, (a) enter into with the Credit Parties written amendments, supplements
or modifications hereto and to the other Credit Documents for the purpose of
adding any provisions to this Agreement or the other Credit Documents or
changing in any manner the rights of the Lenders or of the Credit Parties
hereunder or thereunder or (b)
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waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity (including in the case of the Tranche A
Term Loan, any scheduled amortization payment required pursuant to subsection
2.17(d)) of any Note, or reduce the stated rate of any interest or fee payable
hereunder or thereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitment, in
each case without the consent of each Lender affected thereby, or (ii) amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Lenders or consent to the assignment or
transfer by a Credit Party of any of its rights and obligations under this
Agreement and the Notes or, except pursuant to subsection 9.16 or as the result
of or in connection with an Asset Disposition permitted by subsection 5.2(b),
release all or substantially all of the Collateral or, except as the result of
or in connection with a consolidation, merger or disposition of a Credit Party
permitted under subsection 5.2(b), release the Company or any of the other
Credit Parties from its or their obligations under the Credit Documents, in each
case without the written consent of all the Lenders, or (iii) amend, modify or
waive any provision of Section 8 without the written consent of the then Agents.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Credit Parties, the
Lenders, the Agents and all future holders of the Notes. In the case of any
waiver, the Credit Parties, the Lenders and the Agents shall be restored to
their former position and rights hereunder and under the outstanding Notes, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
9.2. NOTICES.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered by hand, or 3 days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Company, the Credit Parties and the Agents, and as
set forth in Schedule VII in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
<TABLE>
<CAPTION>
<S> <C> <C>
The Company Hercules Incorporated
or any other Hercules Plaza
Credit Party: Wilmington, Delaware 19894
Attention: Stuart Shears
Telephone: (302) 594-5300
Telecopy: (302) 594-5371
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
The Administrative Agent: NationsBank, N.A., as Administrative Agent
Independence Center, 15th Floor
NC1-001-15-04
101 North Tryon Street
Charlotte, North Carolina 28255
Attn: Agency Services
Telephone: (704) 386-6837
Telecopy: (704) 388-9436
with a copy to:
Bank of America
335 Madison Ave.
New York, New York 10017
Attn: David Noda
Telephone: (212) 503-7948
Telecopy: (212) 503-7878
The Canadian Bank of America Canada, as Canadian
Administrative Agent: Administrative Agent
c/o 5681
Simcoe Place, 27th Floor
200 Front Street W
Toronto, Ontario
Canada M5V3L2
Attn: Nelson Lam
Telephone: (416) 349-5496
Telecopy: (416) 349-4281
with a copy to:
Bank of America
335 Madison Ave.
New York, New York 10017
Attn: David Noda
Telephone: (212) 503-7948
Telecopy: (212) 503-7878
</TABLE>
provided that any notice, request or demand to or upon an Agent or the Lenders
pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.11, 2.13, 2.15, 2.16, 2.17, 2.18 or
3A.9 shall not be effective until received.
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9.3. NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of an
Agent, any Lender or any Credit Party, any right, remedy, power or privilege
hereunder or under the Notes shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder, in the Notes and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement,
the Notes and the other Credit Documents and the making of the Loans and the
issuance or extension of Letters of Credit hereunder.
9.5. PAYMENT OF EXPENSES AND TAXES.
The Company agrees (a) to pay or reimburse each Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement, the Notes and the other Credit Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel (including special Canadian counsel) to the Agents, (b) to pay or
reimburse each Lender and the Administrative Agent for all its reasonable costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders (including, without duplication,
the allocated costs of in-house counsel to any Lender) , and (c) to pay,
indemnify, and hold each Lender and each Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the Notes, the
LOC Documents, the use of proceeds of the Loans and Letters of Credit and any
such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
environmental or other law applicable to the operations of the Borrowers, any of
their Subsidiaries or any of the their respective properties (all the foregoing
in this clause (d), collectively, the "indemnified liabilities"),
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<PAGE> 93
provided, that the Company shall have no obligation hereunder to any Agent or
any Lender with respect to indemnified liabilities arising from (i) the gross
negligence or willful misconduct of such Agent or any such Lender or (ii) legal
proceedings commenced against such Agent or any such Lender by any security
holder or creditor thereof arising out of and based upon rights afforded any
such security holder or creditor solely in its capacity as such. The agreements
in this subsection shall survive repayment of the Notes, the LOC Obligations and
all other amounts payable hereunder or under the other Credit Documents.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit of
the Credit Parties, the Lenders, the Agents, all future holders of the Notes and
their respective successors and assigns, except that no Credit Party may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
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 Commitment of such
Lender, any Participation Interest of such Lender or any other interest of such
Lender hereunder, under the Notes or under any other Credit Document. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Note for all purposes under this Agreement and the Notes, and the Credit Parties
and the Agents shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the Notes. The Credit Parties agree that if amounts outstanding under this
Agreement, the Notes or any other Credit Document are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement, any Note or any other Credit Document to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement, any Note or any other Credit Document, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof or, with the consent of (x)
so long as no Event of Default exists, the Company and (y) the Administrative
Agent (which in each case shall not be unreasonably withheld), to any other
Person (an "Assignee") all or any part of its rights and obligations under this
Agreement, the Notes and the other Credit Documents pursuant to an Assignment
and Acceptance, substantially in the form of Exhibit C, executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register;
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provided, however, that the amount of the Commitment (if any) of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than the lesser of (i) $10,000,000 and (ii) with respect to
each assigning Lender, the amount of such Lender's Commitment and shall be in an
integral multiple of $1,000,000 (or, if less, with respect to each assigning
Lender, the amount of such Lender's Commitment); provided, further, that, in the
case of any proposed assignment pursuant to this subsection 9.6(c) to an
Assignee which is not a Lender or any affiliate of a Lender, if (A) no Event of
Default exists, (B) the Company objects to such proposed Assignee and (C) the
Company no later than 5 Business Days after receipt of notice by the Company of
such proposed Assignee, proposes an alternative Assignee acceptable to the
Administrative Agent and willing to consummate such assignment with the
assigning Lender within 30 days from the date thereof and on the same terms and
conditions as such assigning Lender's proposed Assignee, such assigning Lender
shall not have the right to effect such proposed assignment to its proposed
Assignee. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto).
(d) The Administrative Agent shall maintain at its address referred to
in subsection 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Credit Parties, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Company and the Administrative
Agent), together with payment by the assigning Lender to the Administrative
Agent of a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Company on behalf of the Borrower. On or prior to the
effective date of any such Assignment and Acceptance, each Borrower, at its own
expense, shall execute and deliver to the Administrative Agent a new Note or
Notes to the order of such Assignee. Such new Notes shall be dated the Closing
Date and shall otherwise be in the form of the Notes replaced thereby.
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(f) Each Credit Party authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Credit Party and its affiliates which has been delivered to such Lender by or on
behalf of the Company pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Company in connection with such Lender's
credit evaluation of the Company and its affiliates prior to becoming a party to
this Agreement.
(g) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
9.7. ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of its Loans or Participation Interests, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsections 6(f) or (g), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans or Participation Interests, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Credit Party,
any such notice being expressly waived by each Credit Party to the extent
permitted by applicable law, upon any amount becoming due and payable by such
Credit Party hereunder, under the Notes or under any other Credit Document
(whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any affiliate, branch or agency thereof to or for the
credit or the account of such Credit Party. Each Lender agrees promptly to
notify the Company on behalf of the respective Credit Party and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
9.8. COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken
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together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
9.9. ADJUSTMENTS FOR CHANGES IN GAAP.
In the event that a change in GAAP affects the terms of the covenants
contained in subsection 5.2(d) hereof (including the related defined terms used
therein), the Company and the Required Lenders shall negotiate in good faith
such amendments to such covenant and related definitions as are necessary to
reflect such changes in GAAP and as are otherwise reasonably satisfactory to the
Company and the Required Lenders.
9.10. SEVERABILITY; SECTION HEADINGS.
(a) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(b) The Section and subsection headings and the Table of Contents
contained herein are for convenience of reference only and shall not affect the
construction hereof.
9.11. INTEGRATION.
This Agreement, the Notes and the other Credit Documents represent the
agreement of the Company, the other Credit Parties, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by an Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein,
in the Notes or in the other Credit Documents.
9.12. GOVERNING LAW.
THIS AGREEMENT, THE NOTES AND, UNLESS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, THE NOTES AND SUCH OTHER CREDIT DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NORTH CAROLINA.
9.13. SUBMISSION TO JURISDICTION; WAIVERS.
Each Credit Party hereby irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, the Notes and the other Credit Documents,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of North Carolina,
the courts of the United States of America for the Western District of North
Carolina, and appellate courts from any thereof,
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Credit Party at
its address set forth in subsection 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
9.14. ACKNOWLEDGMENTS.
Each Credit Party hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Notes and the other Credit Documents;
(b) neither an Agent nor any Lender has any fiduciary relationship with
or duty to such Credit Party arising out of or in connection with this
Agreement, any of the Notes or any of the other Credit Documents, and the
relationship between the Agents and Lenders, on one hand, and such Credit Party,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby, by the Notes or by any of the
other Credit Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among such Credit Party and the
Lenders.
9.15. WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY LAW, EACH CREDIT PARTY, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES AND FOR
ANY COUNTERCLAIM THEREIN.
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9.16. TERMINATION OF COLLATERAL PERIOD.
Upon the occurrence of a Credit Improvement Date that terminates the
Collateral Period:
(a) the pledges and grants of security interests pursuant to the Pledge
Agreements, and the covenants and other agreements contained therein, shall no
longer be effective and shall otherwise cease and be of no further force and
effect;
(b) the Collateral Agent shall, at the expense of the Company, (i)
return all items described in subsection 5.1(k) to the Company or the applicable
Credit Party and (ii) execute and deliver Uniform Commercial Code termination
statements to evidence the termination described in clause (a) above; and
(c) the representation and warranty set forth on Schedule V no longer
shall be deemed to be included in this Agreement.
9.17. CONFIDENTIALITY.
Each Agent and each Lender (each, a "Lending Party") agrees to keep
confidential any information furnished or made available to it by the Credit
Parties pursuant to this Amended and Restated Credit Agreement that is marked
confidential; provided that nothing herein shall prevent any Lending Party from
disclosing such information (a) to any other Lending Party or any Affiliate of
any Lending Party, or any officer, director, employee, agent, or advisor of any
Lending Party or Affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Amended and Restated Credit
Agreement, (g) in connection with any litigation to which such Lending Party or
any of its Affiliates may be a party, (h) to the extent necessary in connection
with the exercise of any remedy under this Amended and Restated Credit Agreement
or any other Credit Document, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, (j) to any direct
or indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty (i) has been approved in
writing by the Company and (ii) agrees in a writing enforceable by the Company
to be bound by the provisions of this subsection 9.17) and (k) subject to
provisions substantially similar to those contained in this subsection 9.17, to
any actual or proposed participant or assignee.
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9.18. PRUDENTIAL INTERCREDITOR AGREEMENT.
The Lenders hereby agree that the Administrative Agent, on behalf of
the Lenders, may enter into an intercreditor agreement, substantially in the
form of Exhibit J, with The Prudential Insurance Company of American
("Prudential"), as the holder of the Guaranteed ESOT Notes Due June 19, 2009 of
The BetzDearborn Inc. Employee Stock Ownership and 401(k) Plan currently
outstanding in the aggregate principal amount of $93,500,000, which
intercreditor agreement shall provide, among other things, for the pro rata
sharing among the Lenders and Prudential of any proceeds of the Collateral or
the guarantees under Section 3A.
9.19 BINDING EFFECT; AMENDMENT AND RESTATEMENT OF EXISTING CREDIT
AGREEMENT; FURTHER ASSURANCES.
This Agreement shall become effective at such time, on or after the
Restatement Effective Date, that the conditions precedent set forth in
subsection 4.1 have been satisfied and when it shall have been executed by each
Credit Party and the Agents, and the Administrative Agent shall have received
copies hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender (including the Issuing Lender), and thereafter this
Agreement shall be binding upon and inure to the benefit of each Credit Party,
each Lender (including the Issuing Lender) and the Agents, together with their
respective successors and assigns. The Credit Parties and the Lenders (including
the Issuing Lender) party to the Existing Credit Agreement each hereby agrees
that, at such time as this Agreement shall have become effective pursuant to the
terms of the immediately preceding sentence, (i) the Existing Credit Agreement
automatically shall be deemed amended and restated in its entirety by this
Agreement, and all obligations and commitments outstanding under the Existing
Credit Agreement shall be governed by the terms of this Agreement (as such
obligations or commitments may be modified or amended hereunder) and (ii) all of
the promissory notes executed by the Borrowers in connection with the Existing
Credit Agreement automatically shall be substituted and replaced by the amended
and restated promissory notes executed in connection with this Agreement, and
the Lenders agree to promptly return such prior notes to the Company. The Credit
Parties further agree, upon the request of the Administrative Agent and/or the
Required Lenders, to promptly take such actions, as reasonably requested, as are
appropriate to carry out the intent of this Agreement and the other Credit
Documents, including, but not limited to, such actions as are reasonably
necessary to ensure that the Lenders have a perfected security interest in any
and all collateral securing the Guaranteed Obligations, subject to no Liens
other than Permitted Liens.
9.20 JUDGMENT CURRENCY.
(a) If for the purposes of obtaining judgment in any court it
is necessary to convert all or any part of the Indebtedness or any
other amount due to the Lenders hereunder or under any security in
respect of the Credit Parties' obligations hereunder in any currency
(the "Original Currency") into another currency (the "Other Currency")
each Credit Party to the fullest extent that it may effectively do so,
agrees that the rate of exchange used shall be that at which, in
accordance with normal banking procedures, the Administrative Agent
could purchase the Original Currency with the Other Currency at its
principal offices in Charlotte, North Carolina on the day (an
"Administrative Agent's Business Day") on which the Administrative
Agent is open for the transaction of its
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banking business at such offices immediately preceding the day on which
any such judgment, or any relevant part thereof, is paid or otherwise
satisfied.
(b) The obligation of each Credit Party in respect of any sum
due in the Original Currency from it to the Lenders hereunder or under
any security in respect of the Credit Parties' obligation hereunder
shall, notwithstanding any judgment in any Other Currency, be
discharged only to the extent that on the Administrative Agent's
Business Day following receipt by the Agents of any sum adjudged to be
so due in such Other Currency or of any other sum in any Other Currency
the Agents may, in accordance with their normal banking procedures,
purchase the Original Currency with such Other Currency. If the amount
of the Original Currency so purchased is less than the sum originally
due to the Lenders in the Original Currency, the Credit Parties shall,
as a separate obligation and notwithstanding any such judgment,
indemnify the Agents against such loss, and if the amount of the
Original Currency so purchased exceeds the sum originally due to the
Lenders, the Agents shall remit such excess to the Credit Parties.
(signature pages follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
COMPANY: HERCULES INCORPORATED,
- ------- a Delaware corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
CANADIAN
BORROWER: BETZDEARBORN CANADA, INC.,
an Ontario corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 102
OTHER SUBSIDIARY
GUARANTORS: HERCULES CREDIT, INC.,
- ---------- a Delaware corporation
HERCULES FLAVOR, INC.,
a Delaware corporation
WSP, INC.,
a Delaware corporation
AQUALON COMPANY,
a Delaware partnership
HERCULES FINANCE COMPANY,
a Delaware partnership
FIBERVISIONS, L.L.C.,
a Delaware limited liability company
FIBERVISIONS INCORPORATED,
a Delaware corporation
FIBERVISIONS PRODUCTS, INC.,
a Georgia corporation
HERCULES INTERNATIONAL LIMITED,
a Delaware corporation
BETZDEARBORN, INC.,
a Pennsylvania corporation
BETZDEARBORN EUROPE, INC.,
a Delaware corporation
DRC, LTD.,
a Delaware corporation
BL TECHNOLOGIES, INC.,
a Delaware corporation
BLI HOLDINGS, INC.,
a Delaware corporation
BETZDEARBORN PAPER PROCESS GROUP, INC.,
a Florida corporation
By:_________________________________
Name: ______________________________
Title: _____________________________
of each of the foregoing Subsidiary Guarantors
<PAGE> 103
LENDERS: NATIONSBANK, N. A.,
- ------- individually in its capacity as a
Lender and in its capacity as
Administrative Agent
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 104
BANK OF AMERICA CANADA,
individually in its capacity as a
Lender and in its capacity as
Canadian Administrative Agent
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 105
THE CHASE MANHATTAN BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 106
CITIBANK, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 107
CITIBANK CANADA
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 108
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 109
DEUTSCHE BANK A.G., NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 110
UBS AG, STAMFORD BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 111
THE BANK OF NOVA SCOTIA
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 112
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 113
COMMERZBANK AG,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 114
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 115
FIRST UNION NATIONAL BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 116
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
<PAGE> 117
MELLON BANK, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 118
MELLON BANK CANADA, TORONTO
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 119
PNC BANK, NATIONAL ASSOCIATION
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 120
ABN AMRO BANK N.V.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 121
HSBC BANK USA
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 122
WACHOVIA BANK, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 123
BANKBOSTON, N.A.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 124
BANK OF MONTREAL IRELAND PLC
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 125
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 126
THE NORINCHUKIN BANK,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 127
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 128
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 129
BANCA COMMERCIALE ITALIANA OF CANADA
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 130
COMERICA BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 131
PARIBAS
By: ________________________________
Name: ______________________________
Title: _____________________________
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 132
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK/
CAYMAN ISLANDS BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 133
ARAB BANKING CORPORATION (B.S.C.)
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 134
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 135
THE BANK OF NEW YORK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 136
BAYERISCHE HYPO UND VEREINSBANK AG,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 137
BW CAPITAL MARKETS, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 138
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 139
CREDIT LYONNAIS NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 140
ERSTE BANK, NEW YORK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 141
THE FIRST NATIONAL BANK OF CHICAGO
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 142
FLEET NATIONAL BANK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 143
IKB DEUTSCHE INDUSTRIEBANK AG,
LUXEMBOURG BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 144
INDOSUEZ CAPITAL FUNDING, IV, L.P.
BY: INDOSUEZ CAPITAL, AS PORTFOLIO
ADVISOR
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 145
KBC BANK N.V.
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 146
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 147
NATEXIS BANQUE
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 148
REPUBLIC NATIONAL BANK OF NEW YORK
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 149
THE SANWA BANK, LIMITED - NEW YORK
BRANCH
By: ________________________________
Name: ______________________________
Title: _____________________________
<PAGE> 150
TORONTO DOMINION (TEXAS), INC.,
as U.S. Lender
By: ________________________________
Name: ______________________________
Title: _____________________________
THE TORONTO-DOMINION BANK,
as Canadian Lender
By: ________________________________
Name: ______________________________
Title: _____________________________
