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Exhibit 10(p)
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
dated as of July 20, 2000
among
LINCOLN ELECTRIC HOLDINGS, INC.,
an Ohio corporation,
THE LINCOLN ELECTRIC COMPANY,
an Ohio corporation
and
CERTAIN SUBSIDIARIES OF LINCOLN ELECTRIC HOLDINGS, INC.,
all as Borrowers,
LINCOLN ELECTRIC GLOBAL LIMITED,
a company incorporated under the laws of the England and Wales,
THE LENDERS LISTED HEREIN,
as Lenders,
CREDIT SUISSE FIRST BOSTON,
as Joint Lead Arranger, Administrative Agent,
Collateral Agent and Bookrunner,
J.P. MORGAN SECURITIES INC.,
as Joint Lead Arranger
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
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TABLE OF CONTENTS
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SECTION 1
DEFINITIONS
PAGE
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1.1 Certain Defined Terms..................................................................... 3
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement;
Fiscal Periods for Determining Compliance and Pricing.....................................46
1.3 Exchange Rates............................................................................47
1.4 Other Definitional Provisions and Rules of Construction...................................47
1.5 Schedules.................................................................................47
SECTION 2
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes 48
2.2 Interest on the Loans.....................................................................55
2.3 Fees......................................................................................60
2.4 Repayments, Prepayments and Reductions in Revolving Loan Commitments; General
Provisions Regarding Payments ............................................................61
2.5 Use of Proceeds ..........................................................................73
2.6 Special Provisions Governing Eurocurrency Rate Loans......................................74
2.7 Increased Costs; Taxes; Capital Adequacy..................................................77
2.8 Obligation of Lenders and Issuing Lenders to Mitigate; Replacement........................83
2.9 Borrowing Subsidiaries....................................................................85
SECTION 3
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations Therein ............86
3.2 Letter of Credit Fees.....................................................................89
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit........................90
3.4 Obligations Absolute......................................................................93
3.5 Indemnification; Nature of Issuing Lenders' Duties........................................95
3.6 Increased Costs and Taxes Relating to Letters of Credit...................................96
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SECTION 4
CONDITIONS
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4.1 Announcement Date and Effectiveness of Commitments .......................................98
4.2 Conditions to Closing....................................................................101
4.3 Conditions to Offer Borrowings...........................................................102
4.4 Conditions to Other Borrowings...........................................................103
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries ...........104
5.2 Authorization of Borrowing, Etc..........................................................105
5.3 Financial Condition......................................................................106
5.4 No Material Adverse Change; No Restricted Junior Payments................................107
5.5 Title to Properties; Liens...............................................................107
5.6 Litigation; Adverse Facts................................................................107
5.7 Payment of Taxes.........................................................................108
5.8 Performance of Agreements; Materially Adverse Agreements; Material Contracts ............108
5.9 Governmental Regulation; Accreditation ..................................................109
5.10 Securities Activities....................................................................109
5.11 Employee Benefit Plans...................................................................109
5.12 Certain Fees.............................................................................110
5.13 Environmental Protection.................................................................110
5.14 Employee Matters.........................................................................112
5.15 Solvency.................................................................................112
5.16 Matters Relating to Collateral...........................................................112
5.17 Disclosure...............................................................................113
5.18 Insurance................................................................................114
5.19 Patents, Trademarks, etc.................................................................114
5.20 Licenses, etc............................................................................115
5.21 Compliance With Law......................................................................115
5.22 Absence of Undisclosed Liabilities.......................................................115
5.23 Purpose of Loans.........................................................................115
SECTION 6
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COMPANY'S AFFIRMATIVE COVENANTS
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6.1 Financial Statements and Other Reports ..................................................116
6.2 Corporate Existence, Etc.................................................................123
6.3 Payment of Taxes and Claims; Tax Consolidation...........................................123
6.4 Maintenance of Properties; Insurance.....................................................124
6.5 Inspection Rights; Lender Meeting........................................................124
6.6 Compliance With Laws, Etc................................................................125
6.7 Environmental Claims and Violations of Environmental Laws................................126
6.8 Execution of Loan Documents by Certain Subsidiaries and Future Subsidiaries..............126
6.9 Certain Matters Regarding Collateral.....................................................127
6.10 Books, Records and Inspections...........................................................129
6.11 Performance of Obligations...............................................................129
6.12 Further Assurances.......................................................................130
6.13 Use of Proceeds..........................................................................130
6.14 Maintenance of Corporate Separateness....................................................131
6.15 Compliance With Material Contracts.......................................................131
6.16 Syndication Process......................................................................131
6.17 Offer....................................................................................132
6.18 Refinancing..............................................................................133
6.19 Ratings Process..........................................................................134
6.20 Financial Assistance.....................................................................134
6.21 Intercompany Loans.......................................................................134
SECTION 7
COMPANY'S NEGATIVE COVENANTS
7.1 Indebtedness ............................................................................135
7.2 Prohibition on Liens.....................................................................137
7.3 Investments; Joint Ventures..............................................................138
7.4 Contingent Obligations...................................................................139
7.5 Restricted Junior Payments...............................................................140
7.6 Financial Covenants......................................................................141
7.7 Restriction on Fundamental Changes; Asset Sales and Acquisitions.........................142
7.8 Consolidated Capital Expenditures........................................................144
7.9 Fiscal Year..............................................................................144
7.10 Sales and Lease-Backs....................................................................144
7.11 Sale or Discount of Receivables..........................................................144
7.12 Transactions With Shareholders and Affiliates............................................145
7.13 Disposal of Subsidiary Stock.............................................................145
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7.14 Conduct of Business......................................................................145
7.15 Certain Restrictions.....................................................................146
7.16 Material Subsidiaries....................................................................146
SECTION 8
EVENTS OF DEFAULT
8.1 Failure to Make Payments When Due .......................................................146
8.2 Default in Other Agreements..............................................................147
8.3 Breach of Certain Covenants..............................................................147
8.4 Breach of Warranty.......................................................................147
8.5 Other Defaults Under Loan Documents......................................................148
8.6 Involuntary Bankruptcy; Appointment of Receiver, Etc.....................................148
8.7 Voluntary Bankruptcy; Appointment of Receiver, Etc.......................................149
8.8 Judgments and Attachments................................................................149
8.9 Dissolution..............................................................................149
8.10 Employee Benefit Plans...................................................................149
8.11 Change in Control........................................................................150
8.12 Invalidity of Loan Documents.............................................................150
SECTION 9
AGENTS
9.1 Appointment .............................................................................152
9.2 Powers and Duties; General Immunity......................................................154
9.3 Representations and Warranties; No Responsibility for Appraisal of Creditworthiness......156
9.4 Right to Indemnity.......................................................................156
9.5 Successor Agent..........................................................................157
9.6 Collateral Documents and Guaranties......................................................157
SECTION 10
COMPANY GUARANTY
10.1 The Company Guaranty ....................................................................158
10.2 Bankruptcy...............................................................................159
10.3 Nature of Liability......................................................................159
10.4 Independent Obligation...................................................................160
10.5 Authorization............................................................................160
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10.6 Reliance.................................................................................161
10.7 Subordination............................................................................162
10.8 Waiver...................................................................................162
SECTION 11
MISCELLANEOUS
11.1 Assignments and Participations in Loans and Letters of Credit ...........................163
11.2 Expenses.................................................................................168
11.3 Indemnity................................................................................169
11.4 Set-Off..................................................................................170
11.5 Ratable Sharing..........................................................................171
11.6 Amendments and Waivers...................................................................171
11.7 Independence of Covenants................................................................174
11.8 Notices..................................................................................174
11.9 Survival of Representations, Warranties and Agreements...................................175
11.10 Failure or Indulgence Not Waiver; Remedies Cumulative....................................175
11.11 Marshalling; Payments Set Aside..........................................................175
11.12 Severability.............................................................................176
11.13 Obligations Several; Independent Nature of Lenders' Rights...............................176
11.14 Headings.................................................................................176
11.15 Applicable Law...........................................................................176
11.16 Successors and Assigns...................................................................177
11.17 Consent to Jurisdiction and Service of Process...........................................177
11.18 Waiver of Jury Trial.....................................................................178
11.19 Confidentiality..........................................................................179
11.20 Counterparts; Effectiveness..............................................................179
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SCHEDULES
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2.1 Lender Commitments
2.1(A)(i) Alternative Currency Sublimit
2.1(A)(iv) Foreign Borrower Exposure Sublimit
2.5 Scheduled Indebtedness
3.24(a) Press Release
5.1 Corporate Organization
5.2C Certain Governmental Consents
5.6 Certain Material Litigation
5.8 Material Contracts
5.13 Certain Environmental Matters
5.14 Certain Employee Matters
7.1 Certain Existing Indebtedness
7.2 Certain Existing Liens
7.3 Certain Existing Investments
7.4 Certain Existing Contingent Obligations
7.5 Certain Restricted Payments
7.7 Certain Target Acquisitions
7.10 Certain Existing Sale and Lease-Back Transactions
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EXHIBITS
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I Form of Notice of Borrowing
II Form of Notice of Conversion/Continuation
III Form of Notice of Request to Issue Letter of Credit
IV Form of Tranche A Term Loan
V Form of Tranche B Term Note
VI Form of Swing Line Note
VII Form of Revolving Note
VIII Form of Compliance Certificate
IX-A Form of Loan Party U.S. Counsel Opinion
IX-B Form of Company General Counsel Opinion
IX-C Form of Loan Party U.K. Counsel Opinion
X Form of Assignment Agreement
XI Form of Certificate Re Non-Bank Status
XII Form of Pledge Agreement
XIII Form of Subsidiary Guaranty
XIV Form of Assumption Agreement
XV Form of Solvency Certificate
XVI Form of UK Share Charge
XVII Form of UK Debenture
XVIII Form of Financial Plan
vii
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LINCOLN ELECTRIC HOLDINGS, INC.
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT is
dated as of July 20, 2000 and entered into by and among LINCOLN ELECTRIC
HOLDINGS, INC., an Ohio corporation ("COMPANY"), LINCOLN ELECTRIC GLOBAL
LIMITED, a company incorporated under the laws of England and Wales ("NEWCO"),
THE LINCOLN ELECTRIC COMPANY, an Ohio corporation ("LINCOLN") the domestic
subsidiaries of the Company signatories hereto (the "DOMESTIC BORROWERS"), the
foreign subsidiaries of the Company signatories hereto (the "FOREIGN BORROWERS"
and, together with the Company, Lincoln and the Domestic Borrowers, the
"BORROWERS"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
(each individually referred to herein as a "LENDER" and collectively as
"LENDERS"), CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of
Switzerland, acting through its New York Branch ("CSFB"), as a joint lead
arranger (in such capacity, a "JOINT LEAD ARRANGER"), administrative agent (in
such capacity, "ADMINISTRATIVE AGENT"), collateral agent (in such capacity,
"COLLATERAL AGENT"), and bookrunner, J.P. MORGAN SECURITIES INC. ("JP MORGAN"),
as a joint lead arranger (in such capacity, a "JOINT LEAD ARRANGER"), and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as syndication agent (in such capacity,
"SYNDICATION AGENT"). Capitalized terms shall have the meanings assigned thereto
in Section 1 of this Agreement.
R E C I T A L S
WHEREAS, Company, Lincoln, Newco, the Lenders, CSFB as Joint
Lead Arranger, Administrative Agent, Collateral Agent and bookrunner, JP Morgan
as Joint Lead Arranger and Morgan Guaranty Trust Company of New York, as
Syndication Agent, entered into that certain Credit Agreement dated as of April
25, 2000 (the"EXISTING CREDIT AGREEMENT");
WHEREAS, Company intends to (i) acquire through Newco (the
"ACQUISITION") all the issued and outstanding shares of capital stock of Charter
plc, a public limited company incorporated under the laws of England and Wales
with company number 2794949 ("TARGET"), whether pursuant to the Offer (as
hereinafter defined), through open market purchases made in accordance with
applicable law or
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pursuant to the provisions of Section 428 et. seq. of the U.K. Companies Act of
1985, together with any options therefor; and (ii) refinance, in connection with
the Acquisition, certain of Company's and Target's existing indebtedness;
WHEREAS, Company desires that Lenders extend credit in the
form of (a) Term Loans and (b) Revolving Loans, with all Loans in an aggregate
principal amount not to exceed $1,300,000,000;
WHEREAS, the proceeds of the Term Loans and Revolving Loans
made on or after the Closing Date are to be used (i) to finance the Acquisition,
(ii) to consummate the Refinancing, (iii) to pay fees and expenses related to
the Acquisition and Refinancing and (iv) for working capital needs and general
corporate purposes;
WHEREAS, Company desires to secure (directly or indirectly)
(i) all of the Company Obligations and the Domestic Obligations by granting to
Administrative Agent, on behalf of Lenders, a pledge of all of the capital stock
and Intercompany Notes of each of its Material Domestic Subsidiaries, Newco and
Target and a pledge of 65% of the capital stock of each of the other Material
Foreign Subsidiaries which are directly owned by Company or a Domestic
Subsidiary (other than any Subsidiaries of Target); and (ii) all of the Foreign
Obligations by granting to Administrative Agent, on behalf of Lenders, a pledge
of all of the capital stock and Intercompany Notes of each of its Material
Foreign Subsidiaries (subject to applicable law);
WHEREAS, Company desires to secure (directly or indirectly)
all of the Obligations by granting to Administrative Agent, on behalf of
Lenders, a valid, perfected first priority security interest in substantially
all of the tangible and intangible assets of Company, the Domestic Subsidiaries
and, in the case of the Foreign Obligations (only), the Foreign Subsidiaries
(other than Target and its Subsidiaries); and
WHEREAS, (i) Company and all of the Domestic Subsidiaries and
Newco have agreed to guarantee the Company Obligations and the Domestic
Obligations; and (ii) Company, the Domestic Subsidiaries, under certain
circumstances, and certain Foreign Subsidiaries (other than Target and its
Subsidiaries) have agreed to guarantee the Foreign Obligations.
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NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Newco, Lenders
and Administrative Agent agree as follows:
1 SECTION
DEFINITIONS
2
2.1 CERTAIN DEFINED TERMS
The following terms used in this Agreement shall have the
following meanings:
"ACCEPTANCE CONDITION" means the condition of the Offer
relating to the minimum level of acceptances of the Offer as set forth in the
Announcement.
"ACQUISITION" has the meaning assigned to such term in the
recitals to this Agreement.
"ADJUSTED EURIBOR" means, with respect to any EURIBOR Loans
for any Interest Period, an interest rate per annum equal to the product of (a)
EURIBOR in effect for such Interest Period and (b) Statutory Reserves.
"ADJUSTED EUROCURRENCY RATE" means Adjusted LIBOR or Adjusted
EURIBOR.
"ADJUSTED LIBOR" means, with respect to any LIBOR Loans for
any Interest Period, an interest rate per annum equal to the product of (a)
LIBOR in effect for such Interest Period and (b) Statutory Reserves.
"ADMINISTRATIVE AGENT" has the meaning assigned to such term
in the preamble to this Agreement.
"AFFECTED LENDER" has the meaning assigned to such term in
subsection 2.6C.
"AFFECTED LOAN" has the meaning assigned to such term in
subsection 2.6C.
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"AFFILIATE," as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGENTS" means, collectively, Administrative Agent,
Syndication Agent, Collateral Agent, the Joint Lead Arrangers, and any
Co-Documentation Agents which may be appointed and also any successor Agents
appointed pursuant to subsection 9.5.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to such term
in subsection 11.5.
"AGREEMENT" means this Amended and Restated Credit and
Guaranty Agreement dated as of July 20, 2000, as it may be amended, supplemented
or otherwise modified from time to time and which supercedes the Existing Credit
Agreement.
"ALTERNATE BASE RATE" means, at any time, the higher of (i)
the Prime Rate or (ii) the rate which is 1/2 of 1% in excess of the Federal
Funds Effective Rate.
"ALTERNATE BASE RATE LOANS" means Loans bearing interest at
rates determined by reference to the Alternate Base Rate as provided in
subsection 2.2A.
"ALTERNATE FINANCING" means the Bridge Loans and the Takeout
Debt.
"ALTERNATIVE CURRENCY" means Euros, Pounds and any other
foreign currency which is agreed to by the Borrowers and the Lenders.
"ALTERNATIVE CURRENCY BORROWING" means a Borrowing comprised
of Alternative Currency Loans.
"ALTERNATIVE CURRENCY EQUIVALENT" means, on any date of
determination, with respect to any amount denominated in dollars, the equivalent
in any Alternative Currency of such amount, determined by Administrative Agent
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pursuant to subsection 1.3 using the applicable Exchange Rate with respect to
such currency at the time in effect.
"ALTERNATIVE CURRENCY LOAN" means any Revolving Loan
denominated in an Alternative Currency. Each Alternative Currency Loan must be a
Eurocurrency Loan.
"ALTERNATIVE CURRENCY EXPOSURE" means, at any time with
respect to any Alternative Currency, the sum of the Dollar Equivalent of the
aggregate principal amount of all outstanding Loans that are denominated in such
Alternative Currency at such time.
"ANNOUNCEMENT" means the public announcement of the Offer by
the issuance of the Press Release.
"ANNOUNCEMENT DATE" means April 26, 2000, the date upon which
the Announcement occurred.
"APPLIED AMOUNT" has the meaning assigned to such term in
subsection 2.4B(iv)(b).
"APPROVED FUND" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"ASSET SALE" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its Wholly Owned
Subsidiaries of (i) any of the stock of any of Company's Subsidiaries, (ii) all,
or substantially all of the assets of any division or line of business of
Company or any of its Subsidiaries, or (iii) any other assets (whether tangible
or intangible) of Company or any of its Subsidiaries (other than (a) inventory
or obsolete or worn out property sold in the ordinary course of business and (b)
any such other assets to the extent that the aggregate value of such assets sold
in any single transaction or related series of transactions is equal to $500,000
or less); provided that any sales that would otherwise be deemed an Asset Sale
pursuant to the foregoing shall not be deemed to be an Asset Sale except to the
extent that the aggregate value of all such sales exceeds $10,000,000 in any
Fiscal Year.
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"ASSIGNMENT AGREEMENT" means an Assignment Agreement in
substantially the form of EXHIBIT X annexed hereto.
"AVAILABILITY PERIOD" means the period from and including the
Payment Obligation Date through the later of the Refinancing Date and Compulsory
Acquisition Date.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor statute.
"BASE RATE MARGIN" has the meaning assigned to such term in
subsection 2.2A(i).
"BORROWERS" has the meaning assigned to such term in the
preamble to this Agreement.
"BORROWING" means a group of Loans of a single Class made by
the Lenders on a single date and as to which a single Interest Period is in
effect. Borrowings having different Interest Periods or denominated in different
currencies, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
"BRIDGE FACILITY" means the facility constituting the
commitments for the Bridge Loans.
"BRIDGE LOAN DOCUMENTS" means the agreements under which the
Bridge Loans may be made or issued and all other instruments, agreements and
other documents evidencing or governing the Bridge Loans or providing for any
guarantee, warrants or other right in respect thereof.
"BRIDGE LOANS" means the senior subordinated loans to be made
by certain lenders to Company on the Closing Date in an aggregate principal
amount equal to $200,000,000 pursuant to the Bridge Loan Documents.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New York, or is
a day on which banking institutions located in such jurisdiction are authorized
or required by law or other governmental action to close; provided, however,
that (i) when used in connection with a Eurocurrency Rate Loan, the interest
rate for which is determined
<PAGE> 15
by reference to LIBOR, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in deposits in the relevant currency in
the London interbank market, (ii) when used in connection with a Eurocurrency
Rate Loan, the interest rate for which is determined by reference to EURIBOR,
the term "Business Day" shall also exclude any day which is not a TARGET
Settlement Day and (iii) when used in connection with any Calculation Date or
determining any date on which any amount is to be paid or made available in an
Alternative Currency, the term "Business Day" shall also exclude any day on
which commercial banks and foreign exchange markets are not open for business in
the principal financial center in the country of such Alternative Currency.
"CALCULATION DATE" means, in respect of a Eurocurrency Rate
Loan denominated in an Alternative Currency, (a) the date falling two Business
Days (or such other period as is customary in the relevant foreign exchange
market for delivery on the date of the relevant Borrowing) prior to the date of
each Borrowing, (b) the date falling two Business Days (or such other period as
is customary in the relevant foreign exchange market for delivery on the date of
the relevant conversion or continuation) prior to the date of conversion or
continuation of any Borrowing pursuant to subsection 2.2D or (c) such additional
dates as Administrative Agent or the Requisite Lenders shall reasonably specify.
"CALCULATION PERIOD" means, for (i) the determination of
Interest Coverage Ratio for purposes of subsection 7.6A and the determination of
Consolidated Fixed Charge Coverage Ratio for purposes of subsection 7.6B, for
the first three Calculation Periods, the periods from October 1, 2000 to the
last day of each of the Fiscal Quarters ending on December 31, 2000, March 31,
2001 and June 30, 2001 (in each case taken as one accounting period) and (ii)
any other determination, the four consecutive Fiscal Quarters of Company then
last ended (taken as one accounting period).
"CAPITAL LEASE," as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CAPITAL STOCK" means 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), including, without limitation, partnership interests and
membership interests, and any and all
<PAGE> 16
warrants, rights or options to purchase or other arrangements or rights to
acquire any of the foregoing.
"CASH" means money, currency or a credit balance in a demand,
time, savings, passbook or like account, other than an account evidenced by a
negotiable certificate of deposit.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States or (b) issued by any agency of
the United States the obligations of which are backed by the full faith and
credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either S&P or Moody's; (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's.
"CERTIFICATE RE NON-BANK STATUS" means a certificate
substantially in the form of Exhibit XI annexed hereto delivered by a Lender to
Administrative Agent pursuant to subsection 2.7B(iii).
"CITY CODE" means The City Code on Takeovers and Mergers
applicable to the Offer as of the date the Offer is made.
"CLASS," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Tranche A Term Loans, Tranche B Term Loans or Swing Line Loans
and, when
<PAGE> 17
used in reference to any Commitment, refers to whether such Commitment
is a Revolving Commitment, Tranche A Term Commitment, Tranche B Term Commitment
or Swing Line Loan Commitment.
"CLEANUP" means all actions required to: (a) clean up, remove,
treat or remediate Hazardous Materials in the indoor or outdoor environment, (b)
prevent the Release of Hazardous Materials so that they do not migrate, endanger
or threaten to endanger public health or welfare or the indoor or outdoor
environment, (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care, or (d) respond to any government requests for
information or documents in any way relating to cleanup, removal, treatment or
remediation or potential cleanup, removal, treatment or remediation of Hazardous
Materials in the indoor or outdoor environment.
"CLEAN-UP PERIOD" means the period commencing on the
Announcement Date and ending on the date that is 180 days after the Closing
Date.
"CLOSING DATE" means the date on which the initial Loans are
made.
"CO-DOCUMENTATION AGENTS" means up to two Lenders, as agreed
between Company and Joint Lead Arrangers, to serve as co-documentation agents.
"COLLATERAL" means, collectively, all of the property
(including Capital Stock) on which Liens are granted pursuant to, and in
accordance with, this Agreement and the applicable Collateral Documents as
security for the Credit Obligations.
"COLLATERAL AGENT" has the meaning assigned to such term in
the preamble of this Agreement.
"COLLATERAL DOCUMENTS" means (i) the Pledge Agreement, (ii)
the Security Agreements and the Mortgages, (iii) the UK Share Charge, (iv) the
UK Debenture, and (iv) any collateral documents to be entered into by Foreign
Subsidiaries, in each case together with all other instruments or documents
delivered by any Loan Party pursuant to this Agreement or any of the other Loan
Documents in order to grant to the Collateral Agent, on behalf of Lenders, a
Lien on property of that Loan Party as security for the Credit Obligations.
"COMMITMENT TERMINATION DATE" means November 26, 2000.
<PAGE> 18
"COMMITMENTS" means the commitments of Lenders to make Loans
as set forth in subsection 2.1A.
"COMPANY" has the meaning assigned to such term in the
preamble to this Agreement.
"COMPANIES ACT" means the Companies Act 1985, as in force in
the United Kingdom, as amended from time to time.
"COMPANY GUARANTY" means the guaranty of Company pursuant to
subsection 10.1.
"COMPANY OBLIGATIONS" means all Obligations of Company.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VIII annexed hereto delivered to Agent and Lenders by
Company pursuant to subsection 6.1(iv).
"COMPULSORY ACQUISITION" means the compulsory acquisition
procedure under Part XIIIA of the Companies Act .
"COMPULSORY ACQUISITION DATE" means the date the Compulsory
Acquisition in respect of the Shares is completed.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of Company and its
Subsidiaries.
"CONSOLIDATED EBITDA" means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, plus, in each case to
the extent deducted in the calculation of Consolidated Net Income for such
period, (ii) Consolidated Interest Expense, (iii) provisions for taxes based on
income, (iv) total depreciation expense, (v) total amortization expense, (vi)
non-cash charges related to the Transactions resulting from purchase price
allocations in an aggregate amount not to exceed $150,000,000, (vii) cash
charges for Transaction fees, costs and
<PAGE> 19
expenses paid or accrued on or prior to the Closing Date not to exceed
$125,000,000, (viii) cash merger, intergration and restructuring charges related
to the Transactions in an aggregate amount not to exceed $35,000,000 (or such
higher amount, which together with other merger, integration and restructuring
reserves initially accounted for in the opening balance sheet as a restructuring
reserve, shall not exceed $125 million), and (ix) other non-cash items
increasing Consolidated Net Income, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP;
provided, however, that for purposes of determining compliance with subsection
7.6C and the determination of Consolidated Leverage Ratio for purposes of
subsections 2.2A and 2.3A, Consolidated EBITDA shall be Consolidated EBITDA as
calculated for Company and its Subsidiaries, except that for the first three
Fiscal Quarters of Fiscal Year 2000, when it shall be calculated as the sum of
Consolidated EBITDA for Company and its Subsidiaries (which shall not include
Target and its Subsidiaries for purposes of such three Fiscal Quarters) plus (x)
$34,150,000 for the Fiscal Quarter ending on March 31, 2000, (y) $34,150,000 for
the Fiscal Quarter ending on June 30, 2000 and (z) $34,150,000 for the Fiscal
Quarter ending on September 30, 2000.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, for any
period, the ratio of (a) Consolidated EBITDA for such period less Consolidated
Capital Expenditures during such period to (b) the sum, without duplication, of
(i) Consolidated Interest Expense for such period, (ii) the aggregate amount of
cash taxes paid by Company and its Subsidiaries during such period, (iii)
scheduled principal payments during such period in respect of any Indebtedness
of Company and its Subsidiaries and (iv) cash dividends on capital stock
declared by Company or any of its Subsidiaries during such period (excluding
dividends payable to Company or any of its Wholly Owned Subsidiaries),
(Consolidated Capital Expenditures and the items referred to in the foregoing
clauses (b)(i) through (iv) being collectively called "CONSOLIDATED FIXED
CHARGES").
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total
interest expense (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and its Subsidiaries
on a consolidated basis with respect to all outstanding Indebtedness of Company
and its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers acceptance financing
but excluding, however, any amounts referred to in subsection 2.3 payable to
Agent and Lenders on or before the Closing Date.
<PAGE> 20
"CONSOLIDATED LEVERAGE RATIO" means the ratio of (i)
Consolidated Total Debt as of the last day of any Fiscal Quarter to (ii)
Consolidated EBITDA for the Calculation Period ending as of such day.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded (i) the income (or loss) of any
Person (other than a Subsidiary of Company) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of its
Subsidiaries or that Person's assets are acquired by Company or any of its
Subsidiaries, (iii) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions, or the making
of loans or advances to the owners of the Capital Stock of such Subsidiary, by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary and (iv)
any after-tax gains or losses attributable to Asset Sales or returned surplus
assets of any Pension Plan; provided, however, that with respect to clauses (ii)
through (iv), no such items relating to any Subsidiary whose income is not
included in this calculation of Consolidated Net Income for any period shall be
included in the calculation of Consolidated EBITDA for such period.
"CONSOLIDATED NET WORTH" means, as at any date of
determination, the sum of the Capital Stock and additional paid-in capital plus
retained earnings (or minus accumulated deficits) of Company and its
Subsidiaries on a consolidated basis determined in conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"CONTINGENT OBLIGATION," as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another
<PAGE> 21
will be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be protected (in
whole or in part) against loss in respect thereof or, (ii) with respect to any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings. Contingent Obligations
shall include (a) the direct or indirect guaranty, endorsement (otherwise than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar payments if
required regardless of non-performance by any other party or parties to an
agreement, and (c) any liability of such Person for the obligation of another
through any agreement (contingent or otherwise) (X) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide funds
for the payment or discharge of such obligation (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise) or (Y) to
maintain the solvency or any balance sheet item, level of income or financial
condition of another if, in the case of any agreement described under subclauses
(X) or (Y) of this sentence, the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"CSFB" has the meaning assigned to such term in the preamble
to this Agreement.
"DOLLAR BORROWING" means a Borrowing comprised of Dollar
Loans.
"DOLLAR EQUIVALENT" means, on any Calculation Date, with
respect to any amount denominated in any currency other than dollars, the
equivalent in dollars of such amount, determined by Administrative Agent
pursuant to subsection 1.3 using the applicable Exchange Rate with respect to
such currency at the time in effect.
"DOLLAR LOAN" means any Loan denominated in dollars.
"DOLLAR REVOLVING LOAN" means a Revolving Loan denominated in
dollars and made pursuant to subsection 2.1(a)(iii).
"DOLLARS" or "dollars" and the sign "$" mean the lawful money
of the United States.
<PAGE> 22
"DOMESTIC BORROWER" has the meaning assigned to such term in
the preamble to this Agreement. "DOMESTIC OBLIGATIONS" means
all Obligations of the Domestic Subsidiaries.
"DOMESTIC SUBSIDIARIES" means all Subsidiaries of the Company
incorporated or organized under the laws of the United States of America or any
state thereof.
"EC TREATY" means the Treaty establishing the European
Community (signed in Rome on March 25, 1957), as amended by the Treaty on
European Union (signed in Masstricht on February 7, 1992).
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, funds and lease financing
companies; and (B) any Lender and any Affiliate of any Lender or an SPV;
provided that no Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL AFFILIATE" means, with respect to any Person,
any other Person whose liability for any Environmental Claim such Person has or
may have retained, assumed or otherwise become liable for (contingently or
otherwise), either contractually or by operation of law.
<PAGE> 23
"ENVIRONMENTAL APPROVALS" means any permit, license, approval,
ruling, variance, exemption or other authorization required under applicable
Environmental Laws.
"ENVIRONMENTAL CLAIM" means any investigation, notice, request
for information, notice of violation, claim, action, suit, proceeding, demand,
abatement order or other order or directive (conditional or otherwise), in each
case in writing, by any governmental authority or any other Person, arising (i)
pursuant to or in connection with any actual, alleged or potential violation of
any Environmental Law, (ii) in connection with any Hazardous Materials, or (iii)
in connection with any actual or alleged damage, injury, threat or harm to
health or safety, as relating to the environment, natural resources or the
environment.
"ENVIRONMENTAL LAWS" means any and all current or future
foreign, federal, state, provincial or local statutes, ordinances, orders,
rules, regulations, judgments, Governmental Authorizations, or any other binding
requirements of governmental authorities relating to (i) environmental matters,
(ii) any activity, event or occurrence involving Hazardous Materials, or (iii)
occupational safety and health, industrial hygiene, land use or, as relating to
the environment, the protection of human, plant or animal health or welfare,
including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 ET SEQ.), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. Section 136 et seq.), the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.) and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001
et seq.), each as amended or supplemented, any analogous present or future state
or local statutes or laws, and any regulations promulgated pursuant to any of
the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of corporations within the
meaning of section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member
<PAGE> 24
of a group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is a member;
and (iii) any member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member. Any former ERISA Affiliate of Company or any of
its Subsidiaries shall continue to be considered an ERISA Affiliate of Company
or such Subsidiary within the meaning of this definition with respect to the
period such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or
the termination of any such Pension Plan resulting in liability pursuant to
Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan that results in liability therefor, or the receipt by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or
has terminated under
<PAGE> 25
Section 4041A or 4042 of ERISA; (viii) receipt from the Internal Revenue Service
of notice of the failure of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Internal Revenue Code) to
qualify under Section 401(a) of the Internal Revenue Code, or the failure of any
trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or (ix) the imposition of a
Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan, provided that such
imposition is not otherwise a "reportable event."
"EURIBOR" means, with respect to any EURIBOR Borrowing for any
Interest Period (i) the rate per annum as determined by Administrative Agent at
approximately 11:00 a.m. Brussels time on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the Reuters Page
EURIBOR-01 for deposits in Euros for a period equal to such Interest Period or
(ii) to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, "EURIBOR" shall be the interest rate
per annum determined by Administrative Agent equal to the rate per annum at
which deposits in Euros are offered for such Interest Period by Administrative
Agent in the Euro-zone interbank market at approximately 11:00 a.m., Brussels
time, on the date which is two Business Days prior to the beginning of such
Interest Period.
"EURIBOR BORROWING" means any Borrowing consisting of EURIBOR
Loans.
"EURIBOR LOAN" means a Loan bearing interest at rates
determined by reference to Adjusted EURIBOR as provided in subsection 2.2A.
"EUROCURRENCY RATE" means EURIBOR or LIBOR.
"EUROCURRENCY RATE LOANS" means Loans bearing interest at
rates determined by reference to an Adjusted Eurocurrency Rate as provided in
subsection 2.2A.
"EUROCURRENCY RATE MARGIN" has the meaning specified in
subsection 2.2A(ii).
<PAGE> 26
"EURO" and "?" mean the lawful currency of the member states
(as such term is used in Council Regulation (EC) No. 974/98) of the European
Union that adopt the single currency in accordance with the EC Treaty.
"EURO-ZONE" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the EC Treaty.
"EVENT OF DEFAULT" means each of the events set forth in
Section 8.
"EXCESS CASH FLOW" means, for any Fiscal Year, the sum
(without duplication) of:
(a) Consolidated Net Income, adjusted to exclude any income,
gains or losses attributable to any Asset Sale the proceeds of which are
required to be applied to prepay Loans under subsection 2.4(B)(iii)(b); plus
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining Consolidated Net Income for such period; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period, plus (ii) the aggregate principal amount
of Indebtedness (other than obligations with respect to Capital Leases) incurred
by Company and its Subsidiaries during such period to finance Capital
Expenditures; plus
(d) amounts received during such period on account of gains
subtracted from Excess Cash Flow for an earlier period pursuant to clause (h)(i)
below as "non-cash gains" in such earlier period; plus
(e) the net proceeds of Indebtedness incurred by Company and
its Subsidiaries during such period to the extent such proceeds were applied to
make payments or prepayments of Indebtedness referred to in clause (j) below;
minus
(f) amounts spent during such period for any Permitted
Acquisitions to the extent such amounts spent were not financed through the
issuance of any Indebtedness or Capital Stock of Company or its Subsidiaries,
and without duplication of any other amounts subtracted from Excess Cash Flow
hereunder; minus
<PAGE> 27
(g) payments during such period on account of charges added to
determine Excess Cash Flow for an earlier period pursuant to clause (b) above as
"non-cash charges or losses" in such earlier period; minus
(h) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income (or loss) for such period, plus (ii) the amount, if
any, by which Net Working Capital increased during such period; minus
(i) Consolidated Capital Expenditures for such period; minus
(j) the sum of (i) scheduled amortization payments made in
respect of the Term Loans during such period, (ii) scheduled amortization or
similar payments made during such period in respect of other Indebtedness of
Company and its Subsidiaries, (iii) voluntary prepayments of Term Loans made
during such period, (iv) mandatory prepayments of Term Loans made during such
period pursuant to subsection 2.4(B)(iii)(e) to the extent that the Net
Insurance Proceeds giving rise thereto are taken into account in determining
Consolidated Net Income in clause (a) above and (v) mandatory prepayments made
during such period in respect of any other Indebtedness of Company and its
Subsidiaries.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCHANGE RATE" means, on any day, with respect to any
currency other than dollars (for purposes of determining the Dollar Equivalent)
or any Alternative Currency (for purposes of determining the Alternative
Currency Equivalent with respect to dollars), the rate at which such currency
may be exchanged into dollars or the applicable Alternative Currency, as the
case may be, as set forth at approximately 11:00 a.m., New York City time, on
such date (for spot delivery) on the applicable Bloomberg Key Cross Currency
Rates Page. In the event that any such rate does not appear on any Bloomberg Key
Cross Currency Rates Page, the Exchange Rate shall be determined by reference to
such other publicly available service for displaying exchange rates selected by
Administrative Agent for such purpose, or, at the discretion of Administrative
Agent, such Exchange Rate shall instead be the arithmetic average of the spot
rates of exchange of Administrative Agent in the market where its foreign
currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., local time, on such date for the purchase of
dollars or the applicable Alternative Currency, as the case may be, for delivery
two Business Days (or such other period as is
<PAGE> 28
customary in the relevant market) later; provided that, if at the time of any
such determination, for any reason, no such spot rate is being quoted,
Administrative Agent may use any other reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.
"EXISTING CREDIT AGREEMENT" has the meaning assigned to that
term in the recitals to this Agreement.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by Administrative Agent from three Federal funds
brokers of recognized standing selected by Administrative Agent.
"FEE LETTER" means that certain Fee Letter, dated April 25,
2000, among the Company, CSFB and JP Morgan, as amended.
"FINANCIAL PLAN" has the meaning assigned to that term in
subsection 6.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to
be created in any Collateral pursuant to any Collateral Document, that, other
than Permitted Encumbrances and Liens permitted pursuant to subsection 7.2, (i)
such Lien has priority over any other Lien on such Collateral or (ii) such Lien
is the only Lien to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its
Subsidiaries ending on December 31 of each calendar year.
"FOREIGN BORROWER" has the meaning assigned to that term in
the preamble to this Agreement.
<PAGE> 29
"FOREIGN BORROWER EXPOSURE" means, at any time, with respect
to any Foreign Borrower, the Dollar Equivalent of the aggregate principal amount
of all Borrowings made by such Foreign Borrower.
"FOREIGN OBLIGATIONS" means all Obligations of Foreign
Borrowers and any guaranties thereof by the Company or any of its Subsidiaries.
"FOREIGN SUBSIDIARIES" means all Subsidiaries of the Company
other than Domestic Subsidiaries.
"FOREIGN SUBSIDIARY FINANCINGS" means Indebtedness of Foreign
Subsidiaries that are not, and do not own any of the stock of, Foreign
Borrowers.
"FORMER OWNERSHIP COST SAVINGS" shall mean cost savings
attributable to operating efficiencies resulting solely from a change of
ownership that would have been realized during the relevant period in question
if the Permitted Acquisition had occurred on the first day of such relevant
period as estimated in good faith by Company, to be calculated on a basis to be
reasonably acceptable to the Requisite Lenders.
"FUNDING AND PAYMENT OFFICE" means (i) the office of
Administrative Agent located at Eleven Madison Avenue, New York, New York 10010
or (ii) such other office of Administrative Agent as may from time to time
hereafter be designated as such in a written notice delivered by Administrative
Agent to Company and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2A, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination, provided that, if Company
notifies Administrative Agent that Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if Administrative Agent requests an amendment
<PAGE> 30
to any provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until the
earliest of (i) the withdrawal of such notice, (ii) the amendment of such
provision in accordance herewith, or (iii) 180 days after such notice has been
given.
"GOVERNMENTAL ACT" has the meaning assigned to that term in
subsection 3.5A.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or any political subdivision of any of the foregoing and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
foreign, federal, state or local governmental authority, agency or court.
"GRANTING LENDER" has the meaning given such term in
subsection 11.1E.
"GUARANTEED OBLIGATIONS" means (i) the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of the
principal of and interest on each Note issued by any Domestic Borrower or any
Foreign Borrower (other than Target or any of its Subsidiaries) to each Lender,
and Loans made, under this Agreement and all reimbursement obligations with
respect to Letters of Credit, together with all the other obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code or any similar provision, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon) of any
Domestic Borrower or any Foreign Borrower to such Lender now existing or
hereafter incurred under, arising out of or in connection with this Agreement or
any other Loan Document and the due performance and compliance with all the
terms, conditions and agreements contained in the Loan Documents by any Domestic
Borrower or any Foreign Borrower (other than Target or any of its Subsidiaries)
and (ii) the full and prompt payment when due (whether by acceleration or
otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code,
<PAGE> 31
would become due) of each Subsidiary Guarantor owing under the Subsidiary
Guaranty.
"GUARANTORS" mean Company and the Subsidiary Guarantors.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
waste," "acutely hazardous waste," "radioactive waste," "biohazardous waste,"
"pollutant," "toxic pollutant," "contaminant," "restricted hazardous waste,"
"infectious waste," "toxic substances," or any other term or expression intended
to define, list or classify substances by reason of properties harmful to
health, safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws); (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources;
(iv) any flammable substances or explosives; (v) any radioactive materials; (vi)
any friable asbestos-containing materials; (vii) urea formaldehyde foam
insulation; (viii) electrical equipment which contains any oil or dielectric
fluid containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority pursuant to Environmental Laws.
"HEDGING AGREEMENT" means any agreement entered into by any of
the Borrowers and a counterparty acceptable to the Joint Lead Arrangers
providing for arrangements to hedge interest rate exposure.
"INDEBTEDNESS," as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money
(but excluding trade credit incurred in the ordinary course of business), (iv)
any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, (v) all obligations evidenced by notes, bonds (other
<PAGE> 32
than performance bonds), debentures or other similar instruments, (vi) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to any property or assets acquired by such
Person (even though the rights and remedies of the seller or the lender under
such agreement in the event of default are limited to repossession or sale of
such property or assets), (vii) all obligations, contingent or otherwise, as an
account party under any Letter of Credit or under acceptance, letter of credit
or similar facilities to the extent not reflected as trade liabilities on the
balance sheet of such Person in accordance with GAAP, (viii) all obligations,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any Capital Stock of Company or any of its Subsidiaries, (ix) all
Contingent Obligations in respect of obligations of the kind referred to in
clauses (i) through (viii) above, and (x) all indebtedness secured by any Lien
on any property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person.
"INDEMNITY" has the meaning assigned to that term in
subsection 11.3.
"INITIAL PERIOD" means the period commencing on and including
the Closing Date and ending on the earlier of (i) the date on which the Joint
Lead Arrangers notify Company they have concluded the primary syndication of the
Loans and the Commitments, and (ii) ninety (90) days after the Closing Date.
"INSURANCE OR CONDEMNATION EVENT" means the receipt by Company
or any of its Subsidiaries of (i) any Cash payments under any insurance policy
as a result of any damage to or loss of all or any portion of its tangible
assets, including any payments made in respect of insurance described in the
certificate delivered pursuant to subsection 4.1L hereof or (ii) any Cash
proceeds resulting from the taking of assets by the power of eminent domain,
condemnation or otherwise; provided that with respect to any such event that
would be otherwise deemed an Insurance or Condemnation Event pursuant to the
foregoing, and if cash proceeds are less than $15,000,000, if Company shall
deliver an Officers' Certificate to Administrative Agent at or prior to receipt
of the Cash payment or proceeds of such event setting forth Company's intent to
use such Cash payment or proceeds to replace assets that would be included in
Plant Assets that are the subject of such event with other Plant Assets
necessary or desirable for the conduct of its business within 360 days of such
receipt and no Event of Default or Potential Event of Default shall have
occurred and shall be continuing at such time, such receipt shall not be deemed
to constitute an Insurance or Condemnation Event, except to the extent such Cash
<PAGE> 33
payment or proceeds are not so used within such 360-day period, after which time
such event, to such extent, shall be deemed an Insurance or Condemnation Event;
provided, further that no event which would otherwise be deemed an Insurance or
Condemnation Event pursuant to the foregoing, shall be so deemed to the extent
the cash proceeds therefrom do not exceed $500,000.
"INTERCOMPANY LOANS" means any loans or advances made between
or among any Loan Party on the one hand and any Subsidiary of a Loan Party on
the other hand; provided, that any Intercompany Loan made in connection with, or
for the purpose of, the consummation of the Transactions shall be on terms and
conditions satisfactory to the Joint Lead Arrangers.
"INTERCOMPANY NOTE" means any promissory note evidencing
Intercompany Loans.
"INTEREST PAYMENT DATE" means (i) with respect to any
Alternate Base Rate Loan, the fourth Business Day of each January, April, July
and October of each year, commencing on the first such date after the Closing
Date, and (ii) with respect to any Eurocurrency Rate Loan, the last day of each
Interest Period applicable to such Loan; provided that, in the case of each
Interest Period of longer than three months, "Interest Payment Date" shall also
include each date that is three months, or an integral multiple thereof, after
the commencement of such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that term in
subsection 2.2B.
"INTEREST RATE DETERMINATION DATE" means, with respect to any
Interest Period, the second (or in the case of Pounds, the first) Business Day
prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter, and any
successor statute.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (other than a Person that
immediately prior to such purchase or acquisition was a Subsidiary of Company
and so long as such Person remains a Subsidiary of Company) or (ii) any direct
or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses,
<PAGE> 34
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other Person
(other than a Subsidiary of Company), including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business. The amount
of any Investment shall be the original cost of such Investment plus the cost of
all additions thereto, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment.
"INVESTMENT GRADE" means, with respect to any Rating, both (i)
with respect to S&P, any of the rating categories from and including AAA to and
including BBB- and (ii) with respect to Moody's, any of the rating categories
from and including Aaa to and including Baa3.
"ISSUING LENDER" means, with respect to any Letter of Credit,
CSFB or such other Lender acceptable to Administrative Agent which agrees or is
otherwise obligated to issue such Letter of Credit, determined as provided in
subsection 3.1B(ii).
"JP MORGAN" has the meaning assigned to such term in the
preamble to this Agreement.
"JOINT LEAD ARRANGERS" has the meaning assigned to such term
in the preamble to this Agreement.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided that in no event shall any Subsidiary of any Person be considered to be
a Joint Venture to which such Person is a party
"LENDER" and "LENDERS" mean the persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 11.1 and the term
"Lenders" shall include the Swing Line Lender unless the context otherwise
requires; provided that the term "Lenders," when used in the context of a
particular Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Standby
Letters of Credit issued or to be issued by Issuing Lenders for the account of
Company or any
<PAGE> 35
Domestic Borrower for the benefit of Company or any of its Subsidiaries pursuant
to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Lenders and not theretofore reimbursed by Company
(including, without duplication, any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B).
"LIBOR" means, with respect to any LIBOR Borrowing for any
Interest Period, the rate per annum determined by Administrative Agent at
approximately 11:00 a.m., London time, on the date which is two Business Days
prior to the beginning of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in Dollars or the
relevant Alternative Currency as applicable (as set forth by any service
selected by Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose of
displaying rates) for a period equal to such Interest Period, provided that, to
the extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, "LIBOR" shall be the interest rate per annum
determined by Administrative Agent equal to the rate per annum at which deposits
in Dollars or the relevant Alternative Currency, as applicable, are offered for
such Interest Period by Administrative Agent to leading banks in the London
interbank market in London, England at approximately 11:00 a.m., London time, on
the date which is two Business Days prior to, or with respect to LIBOR
Borrowings denominated in Pounds, at approximately 11:00 a.m., London time, on
the same day as, the beginning of such Interest Period.
"LIBOR BORROWING" means any Borrowing consisting of LIBOR
Loans.
"LIBOR LOANS" means Loans bearing interest at rates determined
by reference to Adjusted LIBOR as provided in subsection 2.2A.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give
<PAGE> 36
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Term Loans, Swing
Line Loans or Revolving Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters
of Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Company in favor of an Issuing Lender
relating to, the Letters of Credit), the Subsidiary Guaranty, the Collateral
Documents and the Hedging Agreements.
"LOAN PARTY" means each of the Borrowers and any of Company's
Subsidiaries from time to time executing a Loan Document, and "LOAN PARTIES"
means all such Persons, collectively.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, assets, financial position, operations, or results of
operations of Company and its Subsidiaries taken as a whole or (ii) the material
impairment of the ability of Administrative Agent or Lenders to enforce the
Credit Obligations.
"MATERIAL CONTRACT" as applied to any Person, means any
material indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject and so
that for such purposes, "material" shall be construed to mean that (i) the
relevant contract accounts for more than five percent (5%) of the consolidated
net revenues of Company and its Subsidiaries (based on the most recent period of
four successive Fiscal Quarters) or (ii) a Material Adverse Effect would occur
if such contract ceased to be enforceable by such Person.
"MATERIAL DOMESTIC SUBSIDIARY" means a Domestic Subsidiary
which is a Material Subsidiary.
<PAGE> 37
"MATERIAL FOREIGN SUBSIDIARY" means a Foreign Subsidiary which
is a Material Subsidiary.
"MATERIAL SUBSIDIARY" means, at any date, each Borrower, other
than Company, and each other Subsidiary of Company which, individually or
together with its Subsidiaries, either (i) in the case of Domestic Subsidiaries,
(x) owned at least five percent (5%) of the consolidated assets of Company and
its Domestic Subsidiaries (including any of Target's Subsidiaries from the
Closing Date) as of the end of the immediately prior Fiscal Quarter or (y) as of
the last day of any Fiscal Quarter, generated at least five percent (5%) of the
consolidated net sales of Company and its Domestic Subsidiaries (including any
of Target's Subsidiaries from the Closing Date) for the fiscal period consisting
of the four (4) Fiscal Quarters ended on that date or (ii) in the case of
Foreign Subsidiaries, (x) owned at least five percent (5%) of the consolidated
assets of Company's Foreign Subsidiaries (including the Target and its
Subsidiaries from the Closing Date) as of the end of the immediately prior
Fiscal Quarter or (y) as of the last day of any Fiscal Quarter, generated at
least five percent (5%) of the consolidated net sales of Company's Foreign
Subsidiaries (including the Target and its Subsidiaries from the Closing Date)
for the fiscal period consisting of the four (4) Fiscal Quarters ended on that
date.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means a security instrument in respect of the
Mortgaged Properties (whether designated as a deed of trust or a mortgage or by
any similar title) executed and delivered by any Loan Party, in such form as is
customary for transactions of this type and as may be approved by Administrative
Agent.
"MORTGAGED PROPERTIES" means all the owned and leased (to the
extent such leased properties are assignable) real properties of Company and its
Domestic Subsidiaries, unless otherwise agreed by the Joint Lead Arrangers.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is
a "multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset
Sale, Cash payments (including any Cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) received from such Asset Sale, net of any bona fide direct
costs incurred in
<PAGE> 38
connection with such Asset Sale, including (i) income taxes reasonably estimated
to be actually payable as a result of any gain recognized in connection with
such Asset Sale, (ii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than the Loans) that is
secured by a Lien on the assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale and (iii) payment of fees
and reasonable out-of-pocket expenses in connection with such sale.
"NET DEBT SECURITIES PROCEEDS" has the meaning assigned to
such term in subsection 2.4(B)(iii)(c).
"NET EQUITY SECURITIES PROCEEDS" has the meaning assigned to
such term in subsection 2.4(B)(iii)(d).
"NET INSURANCE PROCEEDS" means, with respect to any Insurance
or Condemnation Event, Cash received (including any Cash received by way of
deferred payment, but only as and when so received) by Company or any of its
Subsidiaries as a result of such Insurance or Condemnation Event, net of any
bona fide direct costs incurred in connection with such Insurance or
Condemnation Event, including payment of fees and reasonable out-of-pocket
expenses in connection with adjustment and settlement thereof.
"NET PROCEEDS AMOUNT" has the meaning assigned to such term in
subsection 2.4B(iii)(f).
"NET WORKING CAPITAL" means, at any date, (a) the consolidated
current assets of Company and its Subsidiaries as of such date (excluding Cash
and Cash Equivalents) minus (b) the consolidated current liabilities of Company
and its Subsidiaries as of such date (excluding current liabilities in respect
of Indebtedness). Net Working Capital at any date may be a positive number or
negative number. Net Working Capital increases when it becomes more positive or
less negative and decreases when it becomes less positive or more negative.
"NEWCO" has the meaning assigned to such term in the Preamble
to this Agreement.
"NON-US LENDER" has the meaning assigned to such term in
subsection 2.7B(iii)(a).
<PAGE> 39
"NOTES" means one or more of the Term Notes, Swing Line Notes
or Revolving Notes or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of EXHIBIT I annexed hereto delivered by Company to Administrative Agent
pursuant to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 2.2D with respect to a proposed
conversion or continuation of the applicable basis for determining the interest
rate with respect to the Loans specified therein.
"NOTICE OF REQUEST TO ISSUE LETTER OF CREDIT" means a notice
substantially in the form of EXHIBIT III annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 3.1B(i) with respect to the proposed
issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each
Loan Party from time to time owed to the Agents, Lenders or any of them under
the Loan Documents, whether for principal, interest, reimbursement of amounts
drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
"OFFER" means the recommended cash offer for the Shares
detailed in the Offer Documents.
"OFFER BORROWINGS" means each Borrowing used by any Borrower
to purchase Shares pursuant to acceptances of the Offer or under Part XIIIA of
the Companies Act .
"OFFER DOCUMENT" means the document to be delivered to the
stockholders of Target containing the formal Offer.
"OFFER TERMINATION DATE" means the earliest date (as notified
by the Company to Administrative Agent in writing) on which all of the following
have occurred: (a) all payments in respect of Shares acquired pursuant to
acceptances of the Offer or of any proposals to holders of options over Shares
in accordance with Rule 15 of the City Code have been made in full; (b) no
further such acceptances are possible; and (c) the earliest of (i) if
implemented, the date on which all procedures
<PAGE> 40
pursuant to Section 428 et seq. of the Companies Act 1985 have been completed
and all payments pursuant thereto to or for the benefit of the shareholders of
Target have been made in full, (ii) the date which is six months after the date
on which the Offer is made, and (iii) the date which is two months after the
date on which Newco becomes entitled to give notice in respect of Shares
pursuant to Section 429 of the Companies Act.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its chairman of the
board (if an officer) or its president or one of its vice presidents and by its
chief financial officer or its treasurer or by any person expressly authorized
by the foregoing for the purposes of this definition.
"OPERATING LEASE" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
"OTHER BORROWINGS" means all Borrowings other than Offer
Borrowings.
"PANEL" means the U.K. Panel on Takeovers and Mergers.
"PAYMENT OBLIGATION DATE" means the date which is two Business
Days prior to the date on which Newco is first obligated to pay for any of the
Shares acquired pursuant to acceptance of the Offer.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ACQUISITIONS" means (i) the Acquisition, (ii) the
Planned Acquisitions, (iii) the acquisitions by Target and its Subsidiaries set
forth on SCHEDULE 7.7, all of which are transactions arising pursuant to binding
contracts entered into before the Announcement Date and (iv) any other
acquisition of stock or other assets for consideration that results in acquired
assets being owned by
<PAGE> 41
Company or a Wholly Owned Subsidiary and, if such assets are equity interests in
a Person, such Person being a Wholly Owned Subsidiary, provided, however, that,
with respect to the acquisitions made pursuant to clause (iv), on a pro forma
basis (based on the most recent period of four successive Fiscal Quarters and
assuming that the relevant acquisition took place on the first day of such
period and any debt incurred to finance the consideration therefor was incurred
on the first day of such period, and adjusted to take account of any Former
Ownership Cost Savings), after giving effect to any such acquisition or
acquisitions for aggregate consideration exceeding $5,000,000 in any Fiscal
Year, the Consolidated Senior Leverage Ratio is less than 2.75 to 1.0; provided,
further, that notwithstanding anything to the contrary set forth herein, no
acquisition will be considered a Permitted Acquisition if, as a result of such
acquisition, the financial covenants set forth in subsection 7.6 hereof are not
met after giving effect to such acquisition on a pro forma basis. "PERMITTED
BRIDGE EQUITY FINANCINGS" means the issuance by Company of Capital Stock
pursuant to private placement transactions during the period that the Bridge
Loans are outstanding.
"PERMITTED BRIDGE PERIOD EQUITY" means proceeds from a
Permitted Bridge Equity Financing.
"PERMITTED ENCUMBRANCES" means the following types of Liens
(excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
6.3;
(ii) statutory Liens of landlords, statutory Liens of banks
and rights of set-off, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed
by law, in each case incurred in the ordinary course of business (a)
for amounts not yet overdue or (b) for amounts that are overdue and
that (in the case of any such amounts overdue for a period in excess of
30 days) are being contested in good faith by appropriate proceedings,
so long as (1) such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such
contested amounts, and (2) in the case of a Lien with respect to any
portion of the Collateral, such contest proceedings conclusively
operate to stay the sale of any material portion of the Collateral on
account of such Lien;
<PAGE> 42
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with
respect to any material portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 8.8; (v) leases or subleases granted to
third parties in accordance with any applicable terms of the Collateral
Documents and not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries or
resulting in a material diminution in the value of any Collateral as
security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments,
and other minor defects or irregularities in title, in each case which
do not and will not interfere in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries or result
in a material diminution in the value of any Collateral as security for
the Obligations;
(vii) any (a) interest or title of a lessor's or sublessor
under any lease permitted by this Agreement, (b) restriction or
encumbrance that the interest or title of such lessor's or sublessor
may be subject to, or (c) subordination of the interest of the lessee
or sublessee under such lease to any restriction or encumbrance
referred to in the preceding clause (b), so long as the holder of such
restriction or encumbrance agrees to recognize the rights of such
lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods;
<PAGE> 43
(x) any zoning or similar law or right reserved to or vested
in any governmental office or agency to control or regulate the use of
any real property;
(xi) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business of Company and its Subsidiaries; and
(xii) licenses of patents, trademarks and other intellectual
property rights granted by Company or any of its Subsidiaries in the
ordinary course of business and not interfering in any material respect
with the ordinary conduct of the business of Company or such
Subsidiary.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLANNED ACQUISITIONS" means the intended acquisition by the
Company or its Subsidiaries of interests in (i) Genesis Systems, Ltd. (the
consideration for such acquisition to consist only of Capital Stock of Company
or any of its Subsidiaries), (ii) Indalco Alloys Inc. (75% of which is currently
owned by Lincoln Electric Company of Canada Limited) and (iii) World Wire Srl.
"PLANT ASSETS" means assets that would be included in
"property, plant and equipment" reflected in the consolidated balance sheet of
Company and its Subsidiaries.
"PLEDGE AGREEMENT" means (i) the Pledge Agreement to be
executed and delivered by Company and the Collateral Agent on the Closing Date,
substantially in the form of EXHIBIT XII annexed hereto, as such Pledge
Agreement may thereafter be amended, supplemented or otherwise modified from
time to time, (ii) a Pledge Agreement to be executed from time to time by any
Subsidiary of the Company pursuant to this Agreement, in respect of the Capital
Stock of any Material
<PAGE> 44
Domestic Subsidiary in favor of the Collateral Agent, substantially in the form
of Exhibit XII annexed hereto, as such Pledge Agreement may thereafter be
amended, supplemented or otherwise modified from time to time and (iii) one or
more Pledge Agreements (or effective equivalents) in respect of Capital Stock of
any Material Foreign Subsidiary required to be executed under the terms of this
Agreement in a form acceptable to the Administrative Agent and customary for
transactions of the type contemplated thereby (and no more onerous than the form
in Exhibit XII hereto) reflecting the relevant foreign legal requirements.
"PLEDGED COLLATERAL" means, collectively, the "Pledged
Collateral" as defined in the Pledge Agreement.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"POUNDS" means pounds sterling in lawful currency of the
United Kingdom.
"PRESS RELEASE" means the United Kingdom press release of
Newco, dated as of April 26, 2000, in the agreed form attached hereto as
SCHEDULE 3.24(A) by which the Offer is announced.
"PRIME RATE" means the rate that CSFB announces from time to
time as its prime lending rate, as in effect from time to time. The Prime Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. CSFB or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to any Tranche A Term Loan Commitment or
any Tranche A Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche A Term Loan Exposure of that Lender by (y) the aggregate Tranche A
Term Loan Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to any Tranche B Term Loan Commitment or
any Tranche B Term Loan of any Lender, the percentage obtained by dividing (x)
the Tranche B Term Loan Exposure of that Lender by (y) the aggregate Tranche B
Term Loan Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender or
<PAGE> 45
in any Swing Line Loans, the percentage obtained by DIVIDING (x) the Revolving
Loan Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders and (iv) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Term Loan Exposure of that
Lender plus the Revolving Loan Exposure of that Lender by (y) the sum of the
aggregate Term Loan Exposure of all Lenders plus the aggregate Revolving Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 11.1. The initial Pro
Rata Share of each Lender for purposes of each of clauses (i), (ii), (iii) and
(iv) of the preceding sentence is set forth opposite the name of that Lender in
SCHEDULE 2.1 annexed hereto.
"RATING" means a senior unsecured corporate credit rating by
S&P or Moody's.
"REFINANCING" means (x) the initial transactions providing for
the downstreaming of money to Target and its Subsidiaries with respect to the
repayment of Scheduled Indebtedness of Target and its Subsidiaries and (y) the
refinancing of Scheduled Indebtedness, each of which shall be in form and
substance reasonably satisfactory to the Requisite Lenders.
"REFINANCING DATE" means the date on which the Refinancing
with respect to Target and its Subsidiaries has been completed.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(iii).
"REGISTER" has the meaning assigned to that term in subsection
2.1E.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in
subsection 3.3B.
"RELEASE" means any release, spill, emission, discharge,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration into the indoor or outdoor environment (including, without
limitation, ambient air, surface water, groundwater, and surface or subsurface
strata) or into or out of any
<PAGE> 46
property, including the movement of Hazardous Materials through or in the air,
soil, surface water, groundwater or property.
"RELEVANT EVENT" has the meaning assigned to such term in
subsection 6.17.
"REPLACED LENDER" and "REPLACEMENT LENDER" have the meanings
assigned to those terms in subsection 2.8B.
"REQUISITE LENDERS" means Lenders having or holding in the
aggregate 51% of the sum of (i) the aggregate Term Loan Exposure of all Lenders
plus (ii) the aggregate Revolving Loan Exposure of all Lenders; provided that if
at any time there are only two Lenders then Requisite Lenders shall mean both of
such Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend, return of
capital or other distribution (or authorization therefor), direct or indirect,
on account of any shares of any class of stock of Company now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Company now or hereafter outstanding, (iii)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of
Company now or hereafter outstanding, and (iv) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, exchange, acquisition for value (including, without limitation, by
way of depositing with a trustee with respect thereto money or securities before
due for the purpose of paying when due), defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, any
Subordinated Indebtedness.
"RESTRUCTURING" means the proposed group reorganization of the
Target and its Subsidiaries, if any, to be undertaken after completion of the
Acquisition, in form and substance reasonably satisfactory to the Requisite
Lenders.
"REVOLVING LENDER" means a Lender having a Revolving Loan
Commitment.
<PAGE> 47
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender
to make Revolving Loans to Company pursuant to subsection 2.1A(iv) as set forth
on SCHEDULE 2.1, and "REVOLVING LOAN COMMITMENTS" means such commitments of all
Lenders in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means six years
from the Closing Date.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as
of any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Dollar Revolving Loans of that Lender plus
(b) the Dollar Equivalent of the aggregate principal amount of all outstanding
Revolving Loans of such Lender that are Alternative Currency Loans, plus in the
event that Lender is an Issuing Lender and without duplication from amounts
counted under (a) above, the aggregate Letter of Credit Usage in respect of all
Letters of Credit issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any unreimbursed
drawings thereunder) plus (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Letters of Credit or any
unreimbursed drawings under any Letters of Credit plus (d) in the case of any
Lender other than the Swing Line Lender, the aggregate amount of all
participations purchased by that Lender in any outstanding Swing Line Loans plus
(e) in the case of the Swing Line Lender, the aggregate outstanding principal
amount of all Swing Line Loans (net of any participations therein purchased by
other Lenders).
"REVOLVING LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(iv).
"REVOLVING NOTES" means (i) the promissory notes of the
Borrowers issued pursuant to subsection 2.1F(iv) on the Closing Date and (ii)
any promissory notes issued by Company pursuant to the last sentence of
subsection 11.1B(i) in connection with assignments of the Revolving Loan
Commitments and Revolving Loans of any Lenders, in each case substantially in
the form of EXHIBIT VII annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
<PAGE> 48
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
"SCHEDULED INDEBTEDNESS" has the meaning assigned to such term
in subsection 5.23.
"SEC" means the Securities Exchange Commission.
"SECURED OBLIGATIONS" has the meaning assigned to such term in
subsection 2.4D(i).
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SECURITY AGREEMENT" means (i) the Security Agreement in such
form as is customary for transactions of this type and as may be approved by the
Administrative Agent to be entered into by Administrative Agent, Collateral
Agent, Company and Material Domestic Subsidiaries and (ii) such other Security
Agreements in respect of Material Foreign Subsidiaries in such form as is
customary for transactions of this type as may be approved by Administrative
Agent as are required to be executed pursuant to Section 6.9A of this Agreement.
"SHARES" means the outstanding share capital of Target.
"SOLVENCY CERTIFICATE" means a Solvency Certificate in
substantially the form of EXHIBIT XV annexed hereto.
"SOLVENT" means, with respect to any Person, that as of the
date of determination (i) the then fair saleable value of the property of such
Person, including without limitation any rights of subrogation and contribution,
is (y) greater
<PAGE> 49
than the total amount of liabilities (including contingent liabilities) of such
Person and (z) not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond its ability to
pay such debts as they become due. For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"SPV" has the meaning given such term in subsection 11.1E.
"STANDBY LETTER OF CREDIT" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries, and
(v) performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries; provided that Standby Letters of Credit may not be issued for the
purpose of supporting (a) trade payables or (b) any Indebtedness constituting
"antecedent debt" (as that term is used in Section 547 of the Bankruptcy Code).
"STATUTORY RESERVES" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board for Eurocurrency Liabilities (as defined
in Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurocurrency Rate Loans shall be deemed
to constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
<PAGE> 50
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Company
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
reasonably satisfactory to Administrative Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any
corporation, company, partnership, limited liability company, association, joint
venture or other business entity of which more than 50% of the total voting
power of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of the Person or
Persons (whether directors, managers, trustees or other Persons performing
similar functions) having the power to direct or cause the direction of the
management and policies thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof.
"SUBSIDIARY GUARANTOR" means any Subsidiary of Company that
executes and delivers a counterpart of the Subsidiary Guaranty on the Closing
Date or from time to time thereafter pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means (i) the Subsidiary Guaranty to be
executed and delivered by the Domestic Subsidiaries on the Closing Date and to
be executed and delivered by additional Subsidiaries of Company from time to
time thereafter in accordance with subsection 6.8, substantially in the form of
EXHIBIT XIII annexed hereto, and (ii) any Subsidiary Guaranty executed by any
Foreign Subsidiaries after the Closing Date in substantially the form on Exhibit
XIII but so that the Guaranteed Obligations thereunder shall not include the
Obligations of Company and the Domestic Subsidiaries or of Target and its
Subsidiaries, as such Subsidiary Guaranty may hereafter be amended, supplemented
or otherwise modified from time to time.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to
such term in subsection 9.1B.
"SWING LINE LENDER" means CSFB, or any Person serving as a
successor Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
<PAGE> 51
"SWING LINE LOAN COMMITMENT" means the commitment of the Swing
Line Lender to make Swing Line Loans to Company pursuant to subsection
2.1A(iii).
"SWING LINE LOANS" means the Loans made by the Swing Line
Lender pursuant to subsection 2.1A(iii).
"SWING LINE NOTE" means (i) the promissory notes of Company
issued pursuant to subsection 2.1F(iii) on the Closing Date with respect to the
Swing Line Loans and (ii) any promissory notes issued by Company pursuant to the
last sentence of subsection 11.1B(i) in connection with assignments of the Swing
Line Loan Commitments or Swing Line Loans of the Swing Line Lender, in each case
substantially in the form of EXHIBIT VI annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.
"SYNDICATION AGENT" has the meaning assigned to such term in
the preamble to this Agreement.
"TAKEOUT DEBT" means the senior unsecured notes to be issued
by Company to refinance or replace (whether before or after the Closing Date)
the Bridge Loans Facility (and pay fees or expenses in connection therewith) and
the Indebtedness represented thereby.
"TAKEOUT DEBT DOCUMENTS" means any indenture or other
agreement under which any Takeout Debt is issued and all other instruments,
agreements and other documents evidencing or governing any Takeout Debt or
providing for any guarantee or other right in respect thereof.
"TARGET" has the meaning assigned to that term in the recitals
to this Agreement.
"TARGET SETTLEMENT DAY" means any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided that "TAX ON THE OVERALL NET INCOME" of a Person
shall be construed as a reference to a tax imposed by one of: the jurisdiction
in which that
<PAGE> 52
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains of that Person
(and/or, in the case of a Lender, its lending office).
"TERM LENDER" means a Tranche A Term Lender or a Tranche B
Term Lender.
"TERM LOAN BORROWING" means a Tranche A Term Borrowing or a
Tranche B Term Borrowing.
"TERM LOAN COMMITMENT" means the Tranche A Term Loan
Commitment and the Tranche B Term Loan Commitment.
"TERM LOAN EXPOSURE" means the Tranche A Term Loan Exposure
and the Tranche B Term Loan Exposure.
"TERM LOAN MATURITY DATE" means, as applicable, the Tranche A
Term Loan Maturity Date or the Tranche B Term Loan Maturity Date.
"TERM LOAN PREPAYMENT AMOUNT" means the Tranche A Term Loan
Prepayment Amount and an additional $100,000,000 of outstanding Term Loans to be
prepaid as required pursuant to subsection 2.4B.
"TERM LOANS" means the Tranche A Term Loans and the Tranche B
Term Loans.
"TERM NOTES" means the Tranche A Term Notes and the Tranche B
Term Notes.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Bank for any amount drawn under any Letter of Credit, in each case to the extent
not yet so applied) PLUS (ii) the aggregate principal amount of all outstanding
Swing Line Loans PLUS (iii) the Letter of Credit Usage.
<PAGE> 53
"TRANCHE A TERM LENDER" means a Lender having a Tranche A Term
Loan Commitment, or who has made a Tranche A Term Loan, and any assignee of such
Lender pursuant to subsection 11.1.
"TRANCHE A TERM LOAN BORROWING" means a Borrowing comprised of
Tranche A Term Loans.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a
Lender to make a Tranche A Term Loan as set forth on SCHEDULE 2.1, as the same
may be (a) reduced from time to time pursuant to subsection 2.4 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to subsection 11.1.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination (i) prior to the funding of all of the
Tranche A Term Loans, that Lender's Tranche A Term Loan Commitment and (ii)
after all of the funding of the Tranche A Term Loans, the outstanding principal
amount of the Tranche A Term Loan of that Lender.
"TRANCHE A TERM LOAN MATURITY DATE" means the date six years
following the Closing Date.
"TRANCHE A TERM LOAN PREPAYMENT AMOUNT" means $100,000,000 of
the outstanding Tranche A Term Loans to be prepaid as required pursuant to
subsection 2.4B, which prepayments shall be credited pro rata to the final eight
scheduled quarterly installments of the Tranche A Term Loan.
"TRANCHE A TERM LOANS" means the term loans made by Lenders to
Company pursuant to subsection 2.1(A)(i).
"TRANCHE A TERM NOTES" means (i) the promissory notes of
Company issued pursuant to subsection 2.1F(i) on the Closing Date with respect
to the Tranche A Term Loans and (ii) any promissory notes issued by Company
pursuant to the last sentence of subsection 11.1B(i) in connection with
assignments of the Tranche A Term Loan Commitments or Tranche A Term Loans of
any Lenders, in each case substantially in the form of EXHIBIT IV annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.
<PAGE> 54
"TRANCHE B TERM LENDER" means a Lender having a Tranche B Term
Loan Commitment, or who has made a Tranche B Term Loan, and any assignee of such
Lender pursuant to subsection 11.1.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a
Lender to make a Tranche B Term Loan as set forth on SCHEDULE 2.1, as the same
may be (a) reduced from time to time pursuant to subsection 2.4 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to subsection 11.1.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any
Lender as of any date of determination (i) prior to the funding of the Tranche B
Term Loans, that Lender's Tranche B Term Loan Commitment and (ii) after the
funding of the Tranche B Term Loans, the outstanding principal amount of the
Tranche B Term Loan of that Lender.
"TRANCHE B TERM LOAN MATURITY DATE" means the date eight years
following the Closing Date.
"TRANCHE B TERM LOANS" means the term loans made by Lenders to
Company pursuant to subsection 2.1(A)(ii).
"TRANCHE B TERM NOTES" means (i) the promissory notes of
Company issued pursuant to subsection 2.1F(ii) on the Closing Date with respect
to the Tranche B Term Loans and (ii) any promissory notes issued by Company
pursuant to the last sentence of subsection 11.1B(i) in connection with
assignments of the Tranche B Term Loan Commitments or Tranche B Term Loans of
any Lenders, in each case substantially in the form of EXHIBIT V annexed hereto,
as they may be amended, supplemented or otherwise modified from time to time.
"TRANSACTIONS" means the Offer, the Acquisition, the financing
pursuant to the Bridge Loan Documents, the Takeout Debt, the Refinancing and the
transactions contemplated by the Loan Documents.
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable jurisdiction.
"UK DEBENTURE" means the Guarantee and Debenture to be
executed and delivered by Newco on the Closing Date in the form of Exhibit XVII
hereto.
<PAGE> 55
"UK SHARE CHARGE" means the Share Charge to be executed and
delivered on the Closing Date by Lincoln Electric International Holding Company
in respect of its shareholding in Newco in the form of Exhibit XVI hereto.
"WHITEWASH PROCEDURE" means the procedure required to be
undertaken pursuant to the Companies Act in order to make use of the private
company exemption to prohibitions against financial assistance thereunder.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of which
securities (except for directors' qualifying shares) or other ownership
interests representing 100% of the equity or 100% of the ordinary voting power
or 100% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, directly or indirectly, by Company or
one or more Wholly Owned Subsidiaries.
"WHOLLY OWNED SUBSIDIARY GUARANTOR" means a Wholly Owned
Subsidiary which is a Subsidiary Guarantor.
2.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT; FISCAL PERIODS FOR DETERMINING COMPLIANCE AND
PRICING.
A. Except as otherwise expressly provided in this Agreement,
all accounting terms not otherwise defined herein shall have the meanings
assigned to them in conformity with GAAP. Financial statements and other
information required to be delivered by Company to Lenders pursuant to clauses
(i), (ii) and (iii) of subsection 6.1 shall be prepared in accordance with GAAP
as in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(iv)).
B. For purposes of determining Consolidated EBITDA for
purposes determining compliance with the financial covenants of subsections
7.6A, 7.6B and 7.6C for any period, pro forma effect shall be given to any
Permitted Acquisition and any Asset Sale after the Closing Date as if such
Permitted Acquisition or Asset Sale occurred on the first day of the applicable
period.
2.3 EXCHANGE RATES. On each Calculation Date, Administrative
Agent shall determine the Exchange Rate as of such Calculation Date to be used
for calculating relevant Dollar Equivalent and Alternative Currency Equivalent
amounts.
<PAGE> 56
The Exchange Rates so determined shall become effective on such Calculation
4Date, shall remain effective until the next succeeding Calculation Date and
shall for all purposes of this Agreement (other than any provision expressly
requiring the use of a current Exchange Rate) be the Exchange Rates employed in
converting any amounts between the applicable currencies.
2.4 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
B. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided.
C. The use in any of the Loan Documents of the word "include"
or "including," when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
2.5 SCHEDULES. The Schedules hereto may be amended during the
Clean-up Period with the consent of Administrative Agent (which consent shall
not be unreasonably withheld) to take into account information with respect to
Target and its Subsidiaries.
3 SECTION
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
4.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company
herein set forth, each Tranche A Term Lender hereby severally agrees to make the
Tranche A Term Loans described in subsection 2.1A(i), each Tranche B Term Lender
hereby severally agrees to make the Tranche B Term Loans described in subsection
2.1A(ii), the Swing Line Lender hereby severally agrees to make the
<PAGE> 57
Swing Line Loans described in subsection 2.1A(iii) and each Revolving Lender
hereby severally agrees to make the Revolving Loans described in subsection
2.1A(iv).
(i) TRANCHE A TERM LOANS. Each Tranche A Term Lender severally
agrees to lend to any Borrower during the Availability Period in
Dollars an amount not exceeding its Pro Rata Share of the aggregate
amount of the Tranche A Term Loan Commitments, to be used for the
purposes identified in subsection 2.5A. The amount of each Tranche A
Term Lender's Tranche A Term Loan Commitment is set forth opposite its
name on SCHEDULE 2.1 annexed hereto and the aggregate amount of the
Tranche A Term Loan Commitments is $600,000,000; provided that the
Tranche A Term Loan Commitments of Tranche A Term Lenders shall be
adjusted to give effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 11.1B. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) TRANCHE B TERM LOANS. Each Tranche B Term Lender
severally agrees to lend to the Company or other Domestic Borrower on
the Closing Date in Dollars an amount not exceeding its Pro Rata Share
of the aggregate amount of the Tranche B Term Loan Commitments to be
used for the purposes identified in subsection 2.5A. The amount of each
Tranche B Term Lender's Tranche B Term Loan Commitment is set forth
opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate
amount of the Tranche B Term Loan Commitments is $500,000,000; provided
that the Tranche B Term Loan Commitments of Tranche B Term Lenders
shall be adjusted to give effect to any assignments of the Tranche B
Term Loan Commitments pursuant to subsection 11.1B. Amounts borrowed
under this subsection 2.1A(ii) and subsequently repaid or prepaid may
not be reborrowed.
(iii) SWING LINE LOANS. The Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the maximum
aggregate amount of all Swing Line Loans outstanding from time to time,
to make a portion of the Revolving Loan Commitments available to
Company from time to time during the period from the Closing Date to
but excluding the Revolving Loan Commitment Termination Date by making
Alternate Base Rate Loans as Swing Line Loans to Company in an
aggregate amount not to exceed the amount of the Swing Line Loan
Commitment, to be used
<PAGE> 58
for the purposes identified in subsection 2.5B, notwithstanding the
fact that such Swing Line Loans, when aggregated with the sum of the
Swing Line Lender's outstanding Revolving Loans and the Swing Line
Lender's Pro Rata Share of the Letter of Credit Usage then in effect,
may exceed the Swing Line Lender's Revolving Loan Commitment. The
original amount of the Swing Line Loan Commitment is $15,000,000;
PROVIDED that the amounts of the Swing Line Loan Commitment are subject
to reduction as provided in clause (b) of the next paragraph. The Swing
Line Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Swing Line Loans and all other amounts owed
hereunder with respect to the Swing Line Loans shall be paid in full no
later than that date. Amounts borrowed under this subsection 2.1A(iii)
may be repaid and reborrowed to but excluding the Revolving Loan
Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, the
Swing Line Loans and the Swing Line Loan Commitment shall be subject to
the following limitations:
(a) in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the Revolving
Loan Commitments then in effect; and
(b) any reduction of the Revolving Loan Commitments
made pursuant to subsection 2.4A(iii) or 2.4B which reduces
the aggregate Revolving Loan Commitments to an amount less
than the then current amount of the Swing Line Loan Commitment
shall result in an automatic corresponding reduction of the
Swing Line Loan Commitment such that the amount thereof equals
the amount of the Revolving Loan Commitments, as so reduced,
without any further action on the part of Company,
Administrative Agent or the Swing Line Lender.
With respect to any Swing Line Loans which have not been
voluntarily prepaid by Company pursuant to subsection 2.4B(i), the
Swing Line Lender may, at any time in its sole and absolute discretion,
deliver to Administrative Agent (with a copy to Company), no later than
11:00 a.m. (New York time) at least one (1) Business Day in advance of
the proposed Funding Date, a notice (which shall be deemed to be a
Notice of Borrowing given by Company) requesting the Lenders to make
Revolving Loans that are
<PAGE> 59
Alternate Base Rate Loans to Company on such Funding Date in an amount
equal to the amount of such Swing Line Loans (the "REFUNDED SWING LINE
LOANS") outstanding on the date such notice is given which the Swing
Line Lender requests the Lenders to prepay. Anything contained in this
Agreement to the contrary notwithstanding, (i) the proceeds of such
Revolving Loans made by the Lenders other than the Swing Line Lender
shall be immediately delivered by Administrative Agent to the Swing
Line Lender (and not to Company) and applied to repay a corresponding
portion of the Refunded Swing Line Loans and (ii) on the day such
Revolving Loans are made, the Swing Line Lender's Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds
of a Revolving Loan made by the Swing Line Lender to the Borrowers, and
such portion of the Swing Line Loans deemed to be so paid shall no
longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of the Swing Line Lender but shall instead
constitute part of the Swing Line Lender's outstanding Revolving Loans
to Company and shall be due under the Revolving Note issued by Company
to the Swing Line Lender. If any portion of any such amount paid (or
deemed to be paid) to the Swing Line Lender should be recovered by or
on behalf of any Borrower from the Swing Line Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders in the
manner contemplated by subsection 11.5.
If for any reason Revolving Loans are not made pursuant to
this subsection 2.1A(iii) in an amount sufficient to repay any amounts
owed to the Swing Line Lender in respect of any outstanding Swing Line
Loans on or before the third (3rd) Business Day after demand for
payment thereof by the Swing Line Lender, each Lender shall be deemed
to, and hereby agrees to, have purchased a participation in such
outstanding Swing Line Loans, and in an amount equal to its Pro Rata
Share of the applicable unpaid amount together with accrued interest
thereon. Upon one (1) Business Day's notice from the Swing Line Lender,
each Lender shall deliver to the Swing Line Lender an amount equal to
its respective participation in the applicable unpaid amount in same
day funds at the office of the Swing Line Lender located at the Funding
and Payment Office. In order to evidence such participation each Lender
agrees to enter into a participation agreement at the request of the
Swing Line Lender in form and substance satisfactory to the Swing Line
Lender. In the event any Lender fails to make available to the Swing
Line Lender the amount of such Lender's participation as provided in
<PAGE> 60
this paragraph, the Swing Line Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon at the
rate customarily used by the Swing Line Lender for the correction of
errors among banks for three (3) Business Days and thereafter at the
Alternate Base Rate, as applicable.
Notwithstanding anything contained herein to the contrary, (i)
each Lender's obligation to make Revolving Loans for the purpose of
repaying any Refunded Swing Line Loans pursuant to the second preceding
paragraph and each Lender's obligation to purchase a participation in
any unpaid Swing Line Loans pursuant to the immediately preceding
paragraph shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrowers or any other Person
for any reason whatsoever; (b) the occurrence or continuation of a
Potential Event of Default or Event of Default; (c) any adverse change
in the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any of its Subsidiaries; (d)
any breach of this Agreement or any other Loan Document by any party
thereto; or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; PROVIDED that such
obligations of each Lender are subject to the condition that the Swing
Line Lender believed in good faith that all conditions under Section 4
to the making of the applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, were satisfied at the time such Refunded Swing
Line Loans or unpaid Swing Line Loans were made, or the satisfaction of
any such condition not satisfied had been waived by Requisite Lenders
prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made; and (ii) the Swing Line Lender shall not be
obligated to make any Swing Line Loans if it has elected not to do so
after the occurrence and during the continuation of a Potential Event
of Default or Event of Default.
(iv) REVOLVING LOANS. Each Revolving Lender severally agrees,
subject to the limitations set forth below with respect to the maximum
amount of Revolving Loans permitted to be outstanding from time to
time, to lend to any Borrower from time to time during the period from
the Closing Date to but excluding the Revolving Loan Commitment
Termination Date an aggregate amount not exceeding its Pro Rata Share
of the aggregate amount of the Revolving Loan Commitments; provided,
however, that the Dollar
<PAGE> 61
Equivalent of the Alternative Currency Loans in any Alternative
Currency made by all Revolving Lenders shall not exceed the sublimit
for such Alternative Currency set forth on SCHEDULE 2.1A(i); provided,
further, that the Foreign Borrower Exposure shall not exceed the
sublimits for each such Foreign Borrower as set forth on SCHEDULE
2.1A(iv). Revolving Loans are to be used for the purposes identified in
subsection 2.5B. The original amount of each Revolving Lender's
Revolving Loan Commitment is set forth opposite its name on SCHEDULE
2.1 annexed hereto and the aggregate original amount of the Revolving
Loan Commitments is $200,000,000; provided that the Revolving Loan
Commitments of Revolving Lenders shall be adjusted to give effect to
any assignments of the Revolving Loan Commitments pursuant to
subsection 11.1B; and provided, further, that the amount of the
Revolving Loan Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsections 2.4B(ii).
Each Revolving Lender's Revolving Loan Commitment shall expire on the
Revolving Loan Commitment Termination Date and all Revolving Loans and
all other amounts owed hereunder with respect to the Revolving Loans
and the Revolving Loan Commitments shall be paid in full no later than
that date. Amounts borrowed under this subsection 2.1A(iv) may be
repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
(v) BORROWING MECHANICS. Term Loans or Revolving Loans made on
any Funding Date (other than Revolving Loans made pursuant to a request
by the Swing Line Lender pursuant to subsection 2.1A(iii) for the
purpose of repaying any Refunded Swing Line Loans and other than
Revolving Loans made pursuant to subsection 3.3B for the purpose of
reimbursing any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it) shall be in an aggregate minimum amount
of $5,000,000 (or the Alternative Currency Equivalent thereof) and
integral multiples of $1,000,000 (or the Alternative Currency
Equivalent thereof) in excess of that amount. Swing Line Loans made on
any Funding Date shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $100,000 in excess of that amount. Whenever
Company desires that Lenders make Term Loans or Revolving Loans it
shall deliver to Administrative Agent a Notice of Borrowing no later
than (q) 10:00 A.M. (New York City time) at least three Business Days
in advance of the proposed Funding Date (in the case of a Eurocurrency
Rate Loan (other than an Alternative Currency Borrowing)), (r) no later
than 12:00 noon (New York City time) at least one Business Day in
advance of the proposed Funding Date (in the case of an Alternate Base
Rate Loan) or (s) no later than 12:00 noon,
<PAGE> 62
local time of the jurisdiction of such Alternative Currency, at least
four Business Days in advance of the proposed Funding Date (for an
Alternative Currency Borrowing). Whenever Company desires that the
Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a Notice of Borrowing no later than 12:00 Noon
(New York time) on the proposed Funding Date. The Notice of Borrowing
shall specify (t) the proposed Funding Date (which shall be a Business
Day), (u) the amount requested in Dollars or the applicable Alternative
Currency, as the case may be, and Class of Loans requested, (v) in the
case of Revolving Loans, whether such Borrowing is to be a Dollar
Borrowing or an Alternative Currency Borrowing, (w) the currency of
such Borrowing, (x) whether such Loans shall be Alternate Base Rate
Loans or Eurocurrency Rate Loans (except in the case of Swing Line
Loans which shall only be Alternate Base Rate Loans), (y) in the case
of any Loans requested to be made as Eurocurrency Rate Loans, the
initial Interest Period requested therefor and whether such
Eurocurrency Rate Loan will be a LIBOR Loan or a EURIBOR Loan and (z)
the entity which will be the Borrower for such Loan. Term Loans and
Revolving Loans may be continued as or converted into Alternate Base
Rate Loans and Eurocurrency Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company may give Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B;
provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Borrowing to Administrative Agent on or before
the applicable Funding Date. If no election as to the currency of
Borrowing is specified in any such notice, then the requested Borrowing
shall be denominated in Dollars.
(vi) Neither Administrative Agent nor any Lender shall incur
any liability to Company in acting upon any telephonic notice referred
to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized to borrow
on behalf of Company or for otherwise acting in good faith under this
subsection 2.1B, and upon funding of Loans by Lenders in accordance
with this Agreement pursuant to any such telephonic notice Company
shall have effected Loans hereunder.
(vii) Company shall notify Administrative Agent prior to the
funding of any Loans in the event that any of the matters to which
Company is required to certify in the applicable Notice of Borrowing is
no longer true and correct as of the applicable Funding Date, and the
acceptance by Company of the proceeds of any Loans shall constitute a
re-certification
<PAGE> 63
by Company, as of the applicable Funding Date, as to the matters to
which Company is required to certify in the applicable Notice of
Borrowing.
(viii) Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Borrowing for a Eurocurrency Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable, and Company
shall be bound to make a borrowing in accordance therewith.
B. PRIORITY OF DRAWS. Borrowings hereunder shall occur, to the
extent of the respective Commitments, in the following order: FIRST, as a
Tranche B Term Loan, SECOND, as a Tranche A Term Loan and THIRD, as either a
Revolving Loan or a Swing Line Loan.
(i) DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans
under this Agreement shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being
understood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular
Class of Loan requested be increased or decreased as a result of a
default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Administrative Agent shall notify
each Lender or the Swing Line Lender, as the case may be, of the
proposed Borrowing. Each Lender, other than the Swing Line Lender,
shall make the amount of its Loan available to Administrative Agent not
later than 12:00 Noon (New York City time) on the applicable Funding
Date, in same day funds, in Dollars or the applicable Alternative
Currency, at the Funding and Payment Office. Except as provided in
subsection 2.1A(iii) with respect to Revolving Loans used to repay
Refunded Swing Line Loans or subsection 3.3B with respect to Revolving
Loans used to reimburse any Issuing Lender for the amount of a drawing
under a Letter of Credit issued by it, upon satisfaction or waiver of
the conditions precedent specified in subsections 4.2 (in the case of
initial Borrowings), 4.3 (in the case of Offer Borrowings) and 4.4 (in
the case of Other Borrowings), Administrative Agent (or the Swing Line
Lender, in the case of any Swing Line Loan) shall make the proceeds of
such Loans available to the applicable Borrower on the applicable
Funding Date by causing an amount of same day funds in Dollars or the
Dollar Equivalent in an Alternative Currency equal to the proceeds of
all such Loans either received by Administrative Agent from the Lenders
for any Loan other than a Swing Line Loan, or directly from the Swing
Line Lender for any Swing Line
<PAGE> 64
Loan, to be credited to the account of such Borrower at the Funding and Payment
Office.
(ii) Unless Administrative Agent shall have been notified by
any Lender prior to the Funding Date for any Loans that such Lender
does not intend to make available to Administrative Agent the amount of
such Lender's Loan requested on such Funding Date, Administrative Agent
may assume that such Lender has made such amount available to
Administrative Agent on such Funding Date and Administrative Agent may,
in its sole discretion, but shall not be obligated to, make available
to the applicable Borrower a corresponding amount on such Funding Date.
If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be
entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding
Date until the date such amount is paid to Administrative Agent, at the
customary rate set by Administrative Agent for the correction of errors
among banks for three Business Days and thereafter at the Alternate
Base Rate. If such Lender does not pay such corresponding amount within
three Business Days after such amount should have been made available,
Administrative Agent shall promptly notify the Company and the
applicable Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from
such Funding Date until the date such amount is paid to Administrative
Agent, at the rate payable under this Agreement for Alternate Base Rate
Loans. Nothing in this subsection 2.1D shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that the Borrowers may have against any Lender as
a result of any default by such Lender hereunder.
(iii) THE REGISTER. Administrative Agent shall maintain, at
its address referred to in subsection 11.8, a register for the
recordation of the names and addresses of Lenders and the Commitments
and Loans of each Lender from time to time (the "REGISTER"). The
Register shall be available for inspection by the Borrowers at any
reasonable time and from time to time upon reasonable prior notice.
(iv) Administrative Agent shall record in the Register the
Term Loan Commitments and the Term Loans of each Term Lender, the
Revolving Loan Commitment and the Revolving Loans from time to time of
<PAGE> 65
each Revolving Lender and each repayment or prepayment in respect of
the principal amount of the Term Loans of each Term Lender and the
Revolving Loans of each Revolving Lender. Any such recordation shall be
prima facie evidence thereof, absent manifest error; provided that
failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitments or the Obligations in respect
of any applicable Loans.
(v) Each Lender shall record on its internal records
(including any Notes held by such Lender) the amount of each Term Loan
and each Revolving Loan made by it and each payment in respect thereof.
Any such recordation shall be prima facie evidence thereof, absent
manifest error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Lender's
Commitments or Obligations in respect of any applicable Loans; and
provided, further, that in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register
shall govern.
(vi) The Borrowers, Administrative Agent and Lenders shall
deem and treat the Persons listed as Lenders in the Register as the
holders and owners of the corresponding Commitments and Loans listed
therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case unless and
until an Assignment Agreement effecting the assignment or transfer
thereof shall have been accepted by Administrative Agent and recorded
in the Register as provided in subsection 11.1B(ii). Prior to such
recordation, all amounts owed with respect to the applicable Commitment
or Loan shall be owed to the Lender listed in the Register as the owner
thereof, and any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is
listed in the Register as a Lender shall be conclusive and binding on
any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
(vii) The Borrowers hereby designate CSFB to serve as their
agent solely for purposes of maintaining the Register as provided in
this subsection 2.1E, and each Borrower hereby agrees that, to the
extent CSFB serves in such capacity, CSFB and its officers, directors,
employees, agents and affiliates shall constitute Indemnitees for all
purposes under subsection 11.3.
<PAGE> 66
C. NOTES. At the request of any Lender, the Borrowers shall
execute and deliver to that Lender each of the following, as appropriate: (i) a
Tranche A Term Note substantially in the form of EXHIBIT IV annexed hereto to
evidence that Lender's Tranche A Term Loan, in the principal amount of that
Lender's Tranche A Term Loan Commitment and with other appropriate insertions,
(ii) a Tranche B Term Note substantially in the form of EXHIBIT V annexed hereto
to evidence that Lender's Tranche B Term Loan, in the principal amount of that
Lender's Tranche B Term Loan Commitment and with other appropriate insertions,
(iii) a Swing Line Note substantially in the form of EXHIBIT VI annexed hereto
to evidence the Swing Line Lender's Swing Line Loans, in the principal amount of
that Swing Line Lender's Swing Line Loan Commitment and with other appropriate
insertions, and (iv) a Revolving Note substantially in the form of EXHIBIT VII
annexed hereto to evidence that Lender's Revolving Loans, in the principal
amount of that Lender's Revolving Loan Commitment and with other appropriate
insertions. In the event a Lender requests such Notes prior to the Closing Date,
the Borrowers shall execute and deliver the Notes on the Closing Date.
4.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections
2.6 and 2.7, each Term Loan and each Revolving Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Alternate
Base Rate, Adjusted EURIBOR or Adjusted LIBOR. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made to the date repaid in full (whether by
acceleration or otherwise) at a rate determined by reference to the Alternate
Base Rate. The applicable basis for determining the rate of interest with
respect to any Term Loans or any Revolving Loans shall be selected by the
Borrowers initially at the time a Notice of Borrowing is given with respect to
such Loans pursuant to subsection 2.1B, and the basis for determining the
interest rate with respect to any Term Loans or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D. If on any day a Term Loan
or Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Alternate
Base Rate for any Loan made in Dollars and the 30-day Eurocurrency Rate for
Alternative Currency Loans. Subject to the provisions of subsections 2.2E and
2.7, the Term Loans and the Revolving Loans shall bear interest through maturity
as follows:
<PAGE> 67
(i) if an Alternate Base Rate Loan, then at the sum of the
Alternate Base Rate and the applicable margin (the "BASE RATE MARGIN")
set forth in the table below opposite the current Consolidated Leverage
Ratio of the Company:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------
APPLICABLE MARGIN
-------------------------------------
CONSOLIDATED TRANCHE A TRANCHE B TERM
CATEGORY LEVERAGE RATIO REVOLVER TERM LOANS LOANS
-----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 greater than or equal to 4.25 +150 bps +200 bps +250 bps
-----------------------------------------------------------------------------------------
2 greater than or equal 3.25 less than 4.25 +125 bps +175 bps +225 bps
-----------------------------------------------------------------------------------------
3 greater than or equal 2.50 less than 3.25 +87.5 bps +125 bps +225 bps
-----------------------------------------------------------------------------------------
4 greater than or equal 2.00 less than 2.50 +70 bps +100 bps +225 bps
-----------------------------------------------------------------------------------------
5 less than 2.00 +50 bps +75 bps +225 bps
-----------------------------------------------------------------------------------------
</TABLE>
provided that for the first six months following the Closing Date, the Base Rate
Margin shall be the applicable margin set forth in the table above opposite the
Consolidated Leverage Ratio for category 2.
(ii) if a Eurocurrency Rate Loan, then at the sum of the
Adjusted Eurocurrency Rate and the applicable margin (the "EUROCURRENCY
RATE MARGIN") set forth in the table below, opposite the current
Consolidated Leverage Ratio of the Company:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------
APPLICABLE MARGIN
--------------------------------------
CONSOLIDATED TRANCHE A TRANCHE B TERM
CATEGORY LEVERAGE RATIO REVOLVER TERM LOANS LOANS
-----------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 greater than or equal 4.25 +250 bps +300 bps +350 bps
-----------------------------------------------------------------------------------------
2 greater than or equal 3.25 less than 4.25 +225 bps +275 bps +325 bps
-----------------------------------------------------------------------------------------
3 greater than or equal 2.50 less than 3.25 +187.5 bps +225 bps +325 bps
-----------------------------------------------------------------------------------------
4 greater than or equal 2.00 less than 2.50 +170 bps +200 bps +325 bps
-----------------------------------------------------------------------------------------
5 Less than 2.00 +150 bps +175 bps +325 bps
-----------------------------------------------------------------------------------------
</TABLE>
provided that for the first six months following the Closing Date, the
Eurocurrency Rate Margin shall be the applicable margin set forth in the table
above opposite the Consolidated Leverage Ratio for category 2.
Changes in the applicable margin resulting from changes in the
Consolidated Leverage Ratio shall become effective on the date on which
financial statements are received by the Administrative Agent pursuant to
subsection 6.1(i) or 6.1(ii) (but in any event not later than the 60th day after
the end of each of the first three Fiscal Quarters of each Fiscal
<PAGE> 68
Year or the 90th day after the end of each Fiscal Year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
subsection 2.2A be deemed to be greater than 4.25 to 1.00. In addition, at all
times while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this subsection 2.2A be
deemed to be greater than 4.25 to 1.00. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the
Calculation Period ending at the end of the period covered by the relevant
financial statements.
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line
Loans shall bear interest to the date repaid in full at the sum of the Alternate
Base Rate PLUS the Base Rate Margin for Revolving Loans.
B. INTEREST PERIODS. In connection with each Eurocurrency Rate
Loan, Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at the Borrowers' option, either a one, two, three or six month period or,
if deposits in the relevant Eurocurrency interbank market are available to all
Lenders for such period (as determined by each Lender), a nine or twelve month
period (and, in the case of a Eurocurrency Rate Loan maturing or required to be
repaid in less than one month, the date thereafter requested by the applicable
Borrower and agreed to by Administrative Agent); provided that:
(i) the initial Interest Period for any Eurocurrency
Rate Loan shall commence on the Funding Date in respect of such Loan,
in the case of a Loan initially made as a Eurocurrency Rate Loan, or on
the date specified in the applicable Notice of Conversion/Continuation,
in the case of a Loan converted to a Eurocurrency Rate Loan;
(ii) in the case of immediately successive Interest
Periods applicable to a Eurocurrency Rate Loan continued as such
pursuant to a Notice of Conversion/Continuation, each successive
Interest Period shall commence on the day on which the next preceding
Interest Period expires;
<PAGE> 69
(iii) if an Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided that, if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (v) of this subsection 2.2B,
end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of
the Tranche A Term Loans shall extend beyond the Tranche A Term Loan
Maturity Date, no Interest Period with respect to any portion of the
Tranche B Term Loans shall extend beyond the Tranche B Term Loan
Maturity Date and no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion
of the Term Loans shall extend beyond a date on which Company is
required to make a scheduled payment of principal of such Term Loans
unless the sum of (a) the aggregate principal amount of Term Loans of
the Class to be repaid that are Alternate Base Rate Loans plus (b) the
aggregate principal amount of Term Loans of the Class to be repaid that
are Eurocurrency Rate Loans with Interest Periods expiring on or before
such date equals or exceeds the principal amount required to be paid on
the Term Loans of such Class on such date;
(vii) there shall be no more than 12 Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an
Interest Period for any Eurocurrency Rate Loan in the applicable Notice
of Borrowing or Notice of Conversion/Continuation, Company shall be
deemed to have selected an Interest Period of one month.
<PAGE> 70
C. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Revolving Loans that are Alternate
Base Rate Loans are prepaid pursuant to subsection 2.4B(i), interest accrued on
such Revolving Loans through the date of such prepayment shall be payable on the
next succeeding Interest Payment Date applicable to Alternate Base Rate Loans
(or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of
subsection 2.6, the Borrowers shall have the option (i) to convert at any time
all or any part of its outstanding Term Loans or Revolving Loans equal to
$5,000,000 (or the Alternative Currency Equivalent thereof) and integral
multiples of $1,000,000 (or the Alternative Currency Equivalent thereof) in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis or (ii) upon the expiration of any Interest
Period applicable to a Eurocurrency Rate Loan, to continue all or any portion of
such Loan equal to $5,000,000 (or the Alternative Currency Equivalent thereof)
and integral multiples of $1,000,000 (or the Alternative Currency Equivalent
thereof) in excess of that amount as a Eurocurrency Rate Loan; provided,
however, that a Eurocurrency Rate Loan may only be converted into an Alternate
Base Rate Loan on the expiration date of an Interest Period applicable thereto.
The Borrowers shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 10:00 A.M. (New York City time) at least
one Business Day in advance of the proposed conversion date (in the case of a
conversion to an Alternate Base Rate Loan) and at least three Business Days in
advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurocurrency Rate Loan). A Notice of
Conversion/Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount and Class of the Loan to
be converted/continued, (iii) the nature of the proposed
conversion/continuation, (iv) in the case of a conversion to, or a continuation
of, a Eurocurrency Rate Loan, the requested Interest Period, and (v) in the case
of a conversion to, or a continuation of, a Eurocurrency Rate Loan, that no
Potential Event of Default or Event of Default has occurred and is continuing.
In lieu of delivering the above-described Notice of Conversion/Continuation,
Company may give Administrative Agent telephonic notice by the required time of
any proposed conversion/continuation under this
<PAGE> 71
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of,
a Eurocurrency Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith.
E. DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments
thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable upon demand at a rate that is 2% per annum in excess of the interest
rate otherwise payable under this Agreement with respect to the applicable Loans
(or, in the case of any such fees and other amounts, at a rate which is 2% per
annum, in excess of the interest rate otherwise payable under this Agreement for
Alternate Base Rate Loans); provided that in the case of Eurocurrency Rate Loans
which are Dollar Loans, upon the expiration of the Interest Period in effect at
the time any such increase in interest rate is effective such Eurocurrency Rate
Loans shall thereupon become Alternate Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable under this Agreement for Alternate Base Rate
Loans; provided, further, that in the case of Eurocurrency Rate Loans which are
Alternative Currency Loans, upon the expiration of the Interest
<PAGE> 72
Period in effect at the time any such increase in interest rate is effective
such Eurocurrency Rate Loans shall continue as Eurocurrency Rate Loans with one
month Interest Periods and shall thereafter bear interest payable upon demand at
a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement for such Loans. Payment or acceptance of the increased
rates of interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be
computed on the basis of a 360-day year or, in the case of Alternate Base Rate
Loans or Eurocurrency Rate Loans denominated in Sterling, a 365 or 366 day year,
in each case for the actual number of days elapsed in the period during which it
accrues. In computing interest on any Loan, the date of the making of such Loan
or the first day of an Interest Period applicable to such Loan or, with respect
to an Alternate Base Rate Loan being converted from a Eurocurrency Rate Loan the
date of conversion of such Eurocurrency Rate Loan to such Alternate Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to an Alternate Base Rate Loan being converted to a Eurocurrency
Rate Loan, the date of conversion of such Base Rate Loan to such Eurocurrency
Rate Loan, as the case may be, shall be excluded; provided that if a Loan is
repaid on the same day on which it is made, one day's interest shall be paid on
that Loan.
4.3 FEES.
A. COMMITMENT AND FACILITY FEES. Company agrees to pay to
Agent, for distribution to each Lender in proportion to that Lender's Pro Rata
Share, (x) a facility fee for the period from and including the Closing Date to
but excluding the Revolving Loan Commitment Termination Date (or such earlier
date on which the Revolving Loan Commitment shall terminate as provided herein)
computed at the applicable rate set forth below opposite the applicable
Consolidated Leverage Ratio on the daily average amount of such Lender's
aggregate Revolving Loan Commitment and (y) a commitment fee for the period from
and including the Closing Date to but excluding the date on which the Tranche A
Term Loan Commitment is fully drawn or terminated in accordance with this
Agreement computed at the applicable rate set forth below on the daily average
amount of such Lender's undrawn Tranche A Term Loan Commitment. Such facility
fees and commitment fees to be calculated on the basis of a 365 or 366 day year
and the actual number of days elapsed and to be payable quarterly in arrears on
the fourth
<PAGE> 73
Business Day of each Janurary, April, July and October of each year, commencing
on the first such date after the Closing Date, and on the Revolving Loan
Commitment Termination Date or full utilization of the Tranche A Term Loan
Commitment, respectively:
CONSOLIDATED COMMITMENT
CATEGORY LEVERAGE RATIO AND FACILITY FEE
------------------------------------------------------------------------------
1 greater than or equal to 4.25 +50 bps
------------------------------------------------------------------------------
2 greater than or equal to 3.25 Less than 4.25 +50 bps
------------------------------------------------------------------------------
3 greater than or equal to 2.50 Less than 3.25 +37.5 bps
------------------------------------------------------------------------------
4 greater than or equal to 2.00 Less than 2.50 +30 bps
------------------------------------------------------------------------------
5 greater than 2.00 +25 bps
------------------------------------------------------------------------------
provided that for the first six months following the Closing Date, the
commitment and facility fee percentage shall be the fee set forth in the table
above opposite the Consolidated Leverage Ratio for category 2.
Changes in the applicable facility fee and commitment fee rates
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date on which financial statements are received by the Administrative
Agent pursuant to subsection 6.1(i) or 6.1(ii) (but in any event not later than
the 60th day after the end of each of the first three Fiscal Quarters of each
Fiscal Year or the 90th day after the end of each Fiscal Year, as the case may
be) and shall remain in effect until the next change to be effected pursuant to
this paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
subsection 2.3A be deemed to be greater than 4.25 to 1.00. In addition, at all
times while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this subsection 2.3A be
deemed to be greater than 4.25 to 1.00. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the
period of four consecutive Fiscal Quarters of the Company ending at the end of
the period covered by the relevant financial statements.
B. OTHER FEES. Company agrees to pay to Administrative Agent
such other fees in the amounts and at the times separately agreed upon between
Company and CSFB and JP Morgan in the Fee Letter.
<PAGE> 74
4.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) Tranche A Term Loans: The Borrowers shall make principal
payments on the Tranche A Term Loans beginning on the fourth Business
Day following the seventh complete Fiscal Quarter commencing after the
Closing Date in quarterly installments on the fourth Business Day
following each Fiscal Quarter in the amounts set forth below:
Year Principal Amount
---------------------------------------------------------
1, 1st Quarter $0
1, 2nd Quarter $0
1, 3rd Quarter $0
1, 4th Quarter $0
---------------------------------------------------------
1-TOTAL $0
---------------------------------------------------------
2, 1st Quarter $0
2, 2nd Quarter $0
2, 3rd Quarter $37,500,000
2, 4th Quarter $37,500,000
---------------------------------------------------------
2 -TOTAL 75,000,000
---------------------------------------------------------
3, 1st Quarter $25,000,000
3, 2nd Quarter $25,000,000
3, 3rd Quarter $25,000,000
3, 4th Quarter $25,000,000
---------------------------------------------------------
3-TOTAL 100,000,000
---------------------------------------------------------
4, 1st Quarter $25,000,000
4, 2nd Quarter $25,000,000
4, 3rd Quarter $25,000,000
4, 4th Quarter $25,000,000
---------------------------------------------------------
4-TOTAL 100,000,000
---------------------------------------------------------
5, 1st Quarter $40,500,000
5, 2nd Quarter $40,500,000
5, 3rd Quarter $40,500,000
5, 4th Quarter $40,500,000
---------------------------------------------------------
5-TOTAL 162,500,000
---------------------------------------------------------
6, 1st Quarter $40,500,000
6, 2nd Quarter $40,500,000
6, 3rd Quarter $40,500,000
6, 4th Quarter $40,500,000
---------------------------------------------------------
6-TOTAL 162,500,000
---------------------------------------------------------
$600,000,000
<PAGE> 75
(ii) Tranche B Term Loans: The Borrowers shall make principal
payments on the Tranche B Term Loans beginning on the fourth Business
Day following the third complete Fiscal Quarter commencing after the
Closing Date in quarterly installments on the fourth Business Day
following each Fiscal Quarter in the amounts set forth below:
Year Principal Amount
---------------------------------------------------------
1, 1st Quarter $0
1, 2nd Quarter $0
1, 3rd Quarter $1,250,000
1, 4th Quarter $1,250,000
---------------------------------------------------------
1-TOTAL 2,500,000
---------------------------------------------------------
2, 1st Quarter $1,250,000
2, 2nd Quarter $1,250,000
2, 3rd Quarter $1,250,000
2, 4th Quarter $1,250,000
---------------------------------------------------------
2-TOTAL 5,000,000
---------------------------------------------------------
3, 1st Quarter $1,250,000
3, 2nd Quarter $1,250,000
3, 3rd Quarter $1,250,000
3, 4th Quarter $1,250,000
---------------------------------------------------------
3-TOTAL 5,000,000
---------------------------------------------------------
4, 1st Quarter $1,250,000
4, 2nd Quarter $1,250,000
4, 3rd Quarter $1,250,000
4, 4th Quarter $1,250,000
---------------------------------------------------------
4-TOTAL 5,000,000
---------------------------------------------------------
5, 1st Quarter $1,250,000
5, 2nd Quarter $1,250,000
5, 3rd Quarter $1,250,000
5, 4th Quarter $1,250,000
---------------------------------------------------------
5-TOTAL 5,000,000
---------------------------------------------------------
6, 1st Quarter $1,250,000
6, 2nd Quarter $1,250,000
6, 3rd Quarter $1,250,000
6, 4th Quarter $1,250,000
---------------------------------------------------------
6-TOTAL 5,000,000
---------------------------------------------------------
7, 1st Quarter $59,062,500
7, 2nd Quarter $59,062,500
7, 3rd Quarter $59,062,500
7, 4th Quarter $59,062,500
---------------------------------------------------------
7-TOTAL 236,250,000
---------------------------------------------------------
8, 1st Quarter $59,062,500
8, 2nd Quarter $59,062,500
8, 3rd Quarter $59,062,500
8, 4th Quarter $59,062,500
---------------------------------------------------------
8-TOTAL 236,250,000
---------------------------------------------------------
$500,000,000
<PAGE> 76
(iii) The scheduled installments of principal of the Term
Loans set forth above shall be reduced in connection with any voluntary
or mandatory prepayments of the Term Loans in accordance with
subsection 2.4B(iv); and provided, further, that the Term Loans and all
other amounts owed hereunder with respect to the Term Loans shall be
paid in full no later than the applicable Term Loan Maturity Dates, and
the final installment payable by Company in respect of the Term Loans
on such date shall be in an amount, if such amount is different from
that specified above in clause (i) or (ii), sufficient to repay all
amounts owing by Company under this Agreement with respect to the
respective Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. The Borrowers may prepay, without
premium or penalty, any Swing Line Loan on any Business Day in whole or
in part in an aggregate minimum amount of $1,000,000 and integral
multiples of $100,000 in excess of that amount. In addition, so long as
no Swing Line Loans are then outstanding, the Borrowers may, upon not
less than one Business Day's prior written or telephonic notice, in the
case of Alternate Base Rate Loans, and three Business Days' prior
written or telephonic notice, in the case of Eurocurrency Rate Loans,
in each case given to Administrative Agent by 12:00 Noon (New York City
time) on the date
<PAGE> 77
required and, if given by telephone, promptly confirmed in writing to
Administrative Agent (which original written or telephonic notice
Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time prepay any
Term Loans or Revolving Loans on any Business Day in whole or in part
in an aggregate minimum amount of $5,000,000 (or the Alternative
Currency Equivalent thereof) and integral multiples of $1,000,000 (or
the Alternative Currency Equivalent thereof) in excess of that amount;
provided, however, that a Eurocurrency Rate Loan may only be prepaid on
the expiration of the Interest Period applicable thereto and the
Borrowers shall indemnify each Lender which is counterparty to a
Hedging Agreement for any liquidation costs that arise with respect to
such Hedging Agreement due to such prepayment. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans
specified in such notice shall become due and payable on the prepayment
date specified therein. Any such voluntary prepayment shall be applied
as specified in subsection 2.4B(iv).
(ii) REDUCTION OF COMMITMENTS. The Borrowers may, upon not
less than one Business Day's prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time
to time terminate in whole or permanently reduce in part, without
premium or penalty, the applicable Commitments in an amount up to the
amount by which such Commitment exceeds the aggregate principal amount
of outstanding related Loans or in the case of the Revolving Loan
Commitments, the Total Utilization of Revolving Loan Commitments, in
each case, at the time of such proposed termination or reduction;
provided that any such partial reduction of the Commitments shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount. The Borrowers' notice to
Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the applicable
Commitments shall be effective on the date specified in the Borrowers'
notice and shall reduce the applicable Commitment of each Lender
proportionately to its Pro Rata Share; provided that the Commitments
shall not be reduced below an amount necessary to purchase 100% of the
Shares and consummate the Refinancing.
<PAGE> 78
(iii) MANDATORY PREPAYMENTS. The Loans shall be prepaid in the
amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as more specifically
provided in subsection 2.4B(iv):
(a) PREPAYMENTS FROM EXCESS CASH FLOW. No later than
100 days after the end of each Fiscal Year of Company,
commencing with the Fiscal Year ending December 31, 2001,
Borrowers shall prepay Loans in an aggregate principal amount
equal to 50% of Excess Cash Flow for such Fiscal Year;
provided, however, that, to avoid imposition of any costs
pursuant to subsection 2.6D, in lieu of prepaying the Loans on
any such date, Borrowers may elect not to prepay the Loans by
(i) so notifying Administrative Agent in writing of such
election and (ii) paying such amount of Excess Cash Flow to
Administrative Agent to be held as Cash collateral for the
Obligations and applied in accordance with subsection 2.4B(iv)
to such prepayment on the first Interest Payment Date
thereafter with respect to the Class of Loans to be repaid;
provided, further, that no prepayments from Excess Cash Flow
shall be required under this subsection 2.4B(iii)(a) (x) for
any Fiscal Year in respect of which Company has delivered to
Administrative Agent a Compliance Certificate pursuant to
subsection 6.1(iii) which reflects a Consolidated Leverage
Ratio of less than or equal to 2.5 to 1.0 or (y) if at the
time such prepayment would otherwise be required to be made
the Company's Rating is at least Investment Grade.
(b) PREPAYMENTS AND REDUCTIONS FROM NET ASSET SALE
PROCEEDS. No later than the first Business Day following the
date of receipt by Company or any of its Subsidiaries of any
Net Asset Sale Proceeds in respect of any Asset Sale,
Borrowers shall prepay the Loans in an aggregate amount equal
to such Net Asset Sale Proceeds; provided, however, that, to
avoid imposition of any costs pursuant to subsection 2.6D, in
lieu of prepaying the Loans on such first Business Day after
receipt, Borrowers may elect not to prepay the Loans by (i) so
notifying Administrative Agent in writing of such election and
(ii) paying such Net Asset Sale Proceeds to Administrative
Agent to be held as Cash collateral for the Obligations and
applied in accordance with subsection 2.4B(iv) to such
prepayment on the first Interest Payment Date thereafter with
respect
<PAGE> 79
to the Class of Loans to be repaid; provided, further, that,
except as set forth in the following proviso, no prepayments
from Net Asset Sale Proceeds shall be required under this
subsection 2.4B(iii)(b) for any Fiscal Year in respect of
which Company has delivered to Administrative Agent a
Compliance Certificate pursuant to subsection 6.1(iii) which
reflects a Consolidated Leverage Ratio of less than or equal
to 2.5 to 1.0 and, if at the time such prepayment would
otherwise be required to be made, the Company's Rating is at
least Investment Grade; provided, further, that if any of the
Term Loan Prepayment Amount is outstanding, prepayments from
Net Asset Sale Proceeds shall be required as set forth above
irrespective of the Consolidated Leverage Ratio or the
Company's Rating.
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
DEBT SECURITIES. On the first Business Day following receipt
by Company or a Subsidiary of the Cash proceeds (any such
proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses, being "NET DEBT
SECURITIES PROCEEDS") from the issuance of debt Securities of
Company or such Subsidiary after the Closing Date other than
Indebtedness permitted under subsection 7.1 (other than
subsection 7.1(ix), in which case the Borrowers shall prepay
the Loans in an aggregate amount equal to 50% of such Net Debt
Security Proceeds from such senior subordinated Indebtedness)
and Borrowers shall prepay the Loans in an aggregate amount
equal to such Net Debt Securities Proceeds; provided, however,
that, to avoid imposition of any costs pursuant
<PAGE> 80
to subsection 2.6D, in lieu of prepaying the Loans on such
first Business Day after receipt, Borrowers may elect not to
prepay the Loans by (i) so notifying Administrative Agent in
writing to such election and (ii) paying such Net Debt
Securities Proceeds to Administrative Agent to be held as Cash
collateral for the Obligations and applied in accordance with
subsection 2.4B(iv) to such prepayment on the first Interest
Payment Date thereafter with respect to the Class of Loans to
be repaid; provided, further, that except as set forth in the
following proviso no mandatory prepayments shall be required
from, and Net Debt Securities Proceeds shall not include
proceeds from, the issuance of debt Securities at any time
when (x) the most recent Compliance Certificate delivered by
Company to Administrative Agent pursuant to subsection
6.1(iii) reflects a Consolidated Leverage Ratio of less than
or equal to 2.5 to 1.0 and (y) if, at the time of such
issuance of debt Securities, the Company's Rating is at least
Investment Grade; provided, further, that if any of the Term
Loan Prepayment Amount is outstanding, prepayments from Net
Debt Securities Proceeds shall be required as set forth above
irrespective of the Consolidated Leverage Ratio or the
Company's Rating; provided, further, that for the purposes of
this paragraph (c), Net Debt Securities Proceeds shall not
include any proceeds from the issuance of the Takeout Debt
except in accordance with subsection 7.1(iii).
(d) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF
EQUITY SECURITIES. On the first Business Day following receipt
by Company or a Subsidiary of the Cash proceeds (any such
proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith,
including reasonable legal fees and expenses, being "NET
EQUITY SECURITIES PROCEEDS") from the issuance of equity
Securities of Company or such Subsidiary after the Closing
Date other than to the Company or any of its Subsidiaries
(including, for avoidance of doubt, Target and its
Subsidiaries), including any hybrid equity Securities,
Borrowers shall prepay the Loans in an aggregate amount equal
to 50% of such Net Equity Securities Proceeds; provided,
however, that, to avoid imposition of any costs pursuant to
subsection 2.6D, in lieu of prepaying the Loans on such first
Business Day after receipt, Borrowers may elect not to prepay
the Loans by (i) so notifying Administrative Agent in writing
of such election and (ii) paying such Net Equity Securities
Proceeds to Administrative Agent to be held as Cash collateral
for the Obligations and applied in accordance with subsection
2.4B(iv) to such prepayment on the first Interest Payment Date
thereafter with respect to the Class of Loans to be repaid;
provided, further, that, except as set forth in the following
proviso, no mandatory prepayments shall be required from Net
Equity Securities Proceeds issued at any time when (x) the
most recent Compliance Certificate delivered by Company to
Administrative Agent pursuant to subsection 6.1(iii) reflects
a Consolidated Leverage Ratio of less than or equal to 2.5 to
1.0 or (y) if at the time of such issuance, Company's Rating
is at least Investment Grade; provided, further, that
notwithstanding anything to the contrary set forth above, to
the extent
<PAGE> 81
any of the Term Loan Prepayment Amount is outstanding, Company
shall be required to prepay an amount up to the amount of such
Net Equity Securities Proceeds until the Term Loan Prepayment
Amount has been prepaid in full irrespective of the
Consolidated Leverage Ratio or the Company's Rating, with any
amount of Net Equity Securities Proceeds in excess of the
amount of the outstanding Term Loan Prepayment Amount being
applied as otherwise set forth in this subsection
2.4B(iii)(d); provided, further, that, for purposes of this
paragraph (d), Net Equity Securities Proceeds shall not
include any proceeds from the issuance of (I) the Permitted
Bridge Period Equity, (II) equity issued as consideration for
the Planned Acquisition of Genesis Systems, Ltd or (III)
equity issued to employees in lieu of cash compensation.
(e) PREPAYMENTS AND REDUCTIONS FROM NET INSURANCE
PROCEEDS. No later than the first Business Day following the
date of receipt by Company or any of its Subsidiaries of any
Net Insurance Proceeds in respect of any Insurance or
Condemnation Event, Borrowers shall prepay the Loans in an
aggregate amount equal to such Net Insurance Proceeds;
provided, however, that, to avoid imposition of any costs
pursuant to subsection 2.6D, in lieu of prepaying the Loans on
such first Business Day after receipt, Company may elect not
to prepay the Loans by (i) so notifying Administrative Agent
in writing of such election and (ii) paying such Net Insurance
Proceeds to Administrative Agent to be held as Cash collateral
for the Obligations and applied in accordance with subsection
2.4B(iv) to such prepayment on the first Interest Payment Date
thereafter with respect to the Class of Loans to be repaid;
provided, further, that no prepayments from Net Insurance
Proceeds shall be required under this subsection 2.4B(iii)(e)
at any time when (x) the most recent Compliance Certificate
delivered by Company to the Administrative Agent pursuant to
subsection 6.1(iii) reflects a Consolidated Leverage Ratio of
less than or equal to 2.5 to 1.0 and (y) if at the time such
prepayment would otherwise be required to be made, the
Company's Rating is at least Investment Grade.
(f) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL
PREPAYMENTS AND REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS.
Concurrently with any prepayment of the Loans and/or
<PAGE> 82
reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(e), Company shall deliver to
Administrative Agent an Officers' Certificate demonstrating
the calculation of the amount (the "NET PROCEEDS AMOUNT") of
the applicable Net Asset Sale Proceeds, Net Insurance
Proceeds, Net Debt Securities Proceeds or Net Equity
Securities Proceeds that gave rise to such prepayment and/or
reduction. In the event that Company shall subsequently
determine that the actual Net Proceeds Amount was greater than
the amount set forth in such Officers' Certificate, Company
shall promptly make an additional prepayment of the Loans
(and/or, if applicable, the Revolving Loan Commitments shall
be permanently reduced) in an amount equal to the amount of
such excess, and Company shall concurrently therewith deliver
to Administrative Agent an Officers' Certificate demonstrating
the derivation of the additional Net Proceeds Amount resulting
in such excess.
(g) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
LOAN COMMITMENTS. The Borrowers shall from time to time prepay
the Swing Line Loans and/or Revolving Loans and Tranche A Term
Loans to the extent necessary so that (i) the Total
Utilization of Revolving Loan Commitments shall not at any
time exceed the Revolving Loan Commitments then in effect,
(ii) the Alternative Currency Exposure with respect to any
Alternative Currency shall not at any time exceed the
sublimits for such Alternative Currency or the aggregate
sublimit for all Alternative Currencies as set forth on
SCHEDULE 2.1A(i), (iii) the Foreign Borrower Exposure shall
not at any time exceed the sublimits for such Foreign Borrower
set forth on SCHEDULE 2.1A(iii) and (iv) the aggregate
principal amount of all outstanding Swing Line Loans shall not
at any time exceed the Swing Line Loan Commitment then in
effect. All Swing Line Loans shall be prepaid in full prior to
the prepayment of any Revolving Loans pursuant to this
subsection 2.4B(iii)(g).
(h) PREPAYMENTS DUE TO CURRENCY FLUCTUATIONS. If on
any Calculation Date in respect of an Alternative Currency
Loan which exceeds the applicable Commitment due to currency
fluctuations by more than 5% of the Revolving Loan
Commitments, Administrative Agent shall give notice thereof to
Company and Borrowers shall on the date falling two Business
Days thereafter
<PAGE> 83
prepay such Revolving Loans to the extent necessary so that
after giving effect to such prepayment, the aggregate exposure
for such Loans shall not exceed the Revolving Loan Commitment
therefor; provided, however, that, to avoid imposition of any
costs pursuant to subsection 2.6D, in lieu of prepaying the
Loans on such second Business Day after receipt of notice,
Company may elect not to prepay the Loans by (i) so notifying
Administrative Agent in writing of such election and (ii)
paying such excess to Administrative Agent to be held as Cash
collateral for the Obligations and applied in accordance with
subsection 2.4B(iv) to such prepayment on the first Interest
Payment Date thereafter with respect to the Revolving Loans to
be repaid.
(i) ELECTION TO PREPAY PRIOR TO END OF THE INTEREST
PERIOD. Notwithstanding the provisos of subsections
2.4B(iii)(a)-(e) and (h) above, the Borrowers may also elect,
by notifying Administrative Agent in writing, to cause the
Loans to be prepaid prior to the end of the Interest Period or
Interest Periods referred to therein (subject to subsection
2.6D). Any amounts held by Administrative Agent pursuant to
the election referred to in such subsections
2.4(B)(iii)(a)-(e) and (h) shall be invested in investments
agreed upon by Administrative Agent and the Borrowers in
writing for the account of the Borrowers, which investments
shall mature no later than the end of the appropriate Interest
Period.
(iv) APPLICATION OF PREPAYMENTS AND UNSCHEDULED REDUCTIONS OF
LOAN COMMITMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY CLASS OF
LOANS AND MATURITY. Any voluntary prepayments pursuant to
subsection 2.4B(i) shall be applied first, pro rata between
Tranche A Term Loans and Tranche B Term Loans based upon the
aggregate amounts then outstanding to the full extent thereof,
second, to outstanding Swing Line Loans to the full extent
thereof and third, to outstanding Revolving Loans to the full
extent thereof. Any voluntary prepayments of the Term Loans
pursuant to subsection 2.4B(i) shall be applied PRO RATA to
reduce the remaining scheduled installments of principal of
the Tranche A Term Loans and the Tranche B Term Loans set
forth in subsections 2.4A.
<PAGE> 84
(b) APPLICATION OF MANDATORY PREPAYMENTS BY CLASS OF
LOANS. Any amount required to be applied as a mandatory
prepayment of the Loans pursuant to subsection 2.4B(iii) (the
"APPLIED AMOUNT") shall be applied, first, to the outstanding
Tranche A Term Loan Prepayment Amount, if any, to the full
extent thereof, second, to the extent of any remaining portion
of the Applied Amount, to prepay the Tranche A Term Loans and
the Tranche B Term Loans pro rata between Tranche A Term Loans
and Tranche B Term Loans based upon the aggregate amounts then
outstanding to the full extent thereof, third, to the extent
of any remaining portion of the Applied Amount, to prepay the
Swing Line Loans to the full extent thereof and, fourth, to
the extent of any remaining portion of the Applied Amount, to
prepay the Revolving Loans to the full extent thereof.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM
LOANS. Any mandatory prepayments of the Tranche A Term Loans
and the Tranche B Term Loans pursuant to subsection 2.4B(iii)
in accordance with subsection 2.4B(iv) (b) shall be applied to
reduce the scheduled installments of principal of such Tranche
A Term Loans and Tranche B Term Loans (as the case may be) set
forth in subsection 2.4A on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) to
each such scheduled installment that is unpaid at the time of
such prepayment, except as applied to the Tranche A Term Loan
Prepayment Amount in accordance with the definition thereof.
(d) Notwithstanding anything to the contrary herein,
Tranche B Term Lenders may decline any mandatory prepayment or
voluntary prepayment of the Tranche B Term Loans, in the event
and to the extent that any Tranche A Term Loans remain
outstanding. Any mandatory prepayment or voluntary prepayment
of Tranche B Term Loans declined by a Tranche B Term Lender
will be applied to prepay Tranche A Term Loans of all Lenders
until all Tranche A Term Loans have been repaid in full.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
<PAGE> 85
(i) MANNER AND TIME OF PAYMENT. All payments by the
Borrowers of principal, interest, fees and other Obligations
hereunder and under the Notes denominated in Dollars shall be
made in Dollars or denominated in an Alternative Currency
shall be made in such Alternative Currency, each in same day
funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative
Agent not later than 12:00 Noon (New York City time) on the
date due at the Funding and Payment Office for the account of
Lenders; funds received by Administrative Agent after that
time on such due date shall be deemed to have been paid by the
Borrowers on the next succeeding Business Day. The Borrowers
hereby authorize Administrative Agent to charge its accounts
with Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being
available in its accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND
INTEREST. Except as provided in subsection 2.2C, all payments
in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments (and, in any event,
any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to
the payment of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Subject to
subsection 2.4B(iv)(d), aggregate principal and interest
payments in respect of Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans shall be apportioned among all
outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Agent
shall promptly distribute to each Lender, at its primary
address set forth below its name on the appropriate signature
page hereof or at such other address as such Lender may
request, its Pro Rata Share of all such payments received by
Agent and the commitment fees of such Lender when received by
Agent pursuant to subsection 2.3. Notwithstanding the
foregoing provisions of this subsection 2.4C(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender
or if any Affected Lender makes Alternate Base Rate Loans in
lieu of its Pro Rata Share of any Eurocurrency Rate Loans,
Agent shall give effect thereto in apportioning payments
received thereafter.
<PAGE> 86
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment
to be made hereunder shall be stated to be due on a day that
is not a Business Day, such payment shall, subject to Section
2.2B(iii) and (iv), be made on the next succeeding Business
Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the
commitment fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that
before disposing of any Note held by it, or any part thereof
(other than by granting participations therein), that Lender
will make a notation thereon of all Loans evidenced by that
Note and all principal payments previously made thereon and of
the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a
notation of any Loan made under such Note shall not limit or
otherwise affect the obligations of the Borrowers hereunder or
under such Note with respect to any Loan or any payments of
principal or interest on such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER
SUBSIDIARY GUARANTY.
(i) APPLICATION OF PROCEEDS OF COLLATERAL. All
proceeds received by the Collateral Agent in respect of any
sale of, collection from, or other realization upon all or any
part of the Collateral under any Collateral Document may, in
the discretion of the Collateral Agent, be held by Collateral
Agent as Collateral for, and/or (then or at any time
thereafter) applied in full or in part by the Collateral Agent
against, the applicable secured obligations (as defined in
such Collateral Document, the "SECURED OBLIGATIONS" ) in the
following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization, including reasonable
compensation to Collateral Agent and its agents and counsel,
and all other expenses, liabilities and advances made or
incurred by Collateral Agent in connection therewith, and all
amounts for which Collateral Agent is entitled to
indemnification under such Collateral Document and all
advances made by Collateral Agent thereunder for the account
of the applicable Loan Party, and to the payment of all costs
and expenses paid or incurred by Collateral Agent in
connection with the exercise of any right or remedy under such
Collateral
<PAGE> 87
Document, all in accordance with the terms of this Agreement
and such Collateral Document;
(b) thereafter, to the extent of any excess such
proceeds, to the payment of all other such Secured Obligations
for the ratable benefit of the holders thereof;
(c) thereafter, to the extent of any excess such
proceeds, to the payment of Cash collateral for Letters of
Credit for the ratable benefit of the Issuing Lenders thereof
and holders of participations therein; and
(d) thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of such Loan
Party or to whosoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER SUBSIDIARY GUARANTY. All
payments received by Administrative Agent under the Subsidiary Guaranty
shall be applied promptly from time to time by Agent in the following
order of priority:
(a) to the payment of the costs and expenses of any
collection or other realization under the Subsidiary Guaranty,
including reasonable compensation to Administrative Agent and
its agents and counsel, and all expenses, liabilities and
advances made or incurred by Administrative Agent in
connection therewith, all in accordance with the terms of this
Agreement and the Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such
payments, to the payment of all other Guarantied Obligations
(as defined in the Subsidiary Guaranty) for the ratable
benefit of the holders thereof;
(c) thereafter, to the extent of any excess such
payments, to the payment of Cash collateral for Letters of
Credit for the ratable benefit of the Issuing Lenders thereof
and holders of participations therein; and
<PAGE> 88
(d) thereafter, to the extent of any excess such
payments, to the payment to the applicable Subsidiary
Guarantor or to whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
4.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans shall be applied
by the Borrowers:
(i) to refinance the Scheduled Indebtedness in an
amount of approximately $365 million with respect to Target
(net of proceeds from Asset Sales with respect to Target and
its Subsidiaries) and approximately $135 million with respect
to Lincoln and its Subsidiaries;
(ii) for the financing of the Offer, the purchase of
Shares in the market, the purchase of Shares pursuant to the
Compulsory Acquisition, and the purchase or cancellation of
outstanding options in respect of Shares; and
(iii) to pay fees, expenses and Transaction costs in
connection with the Acquisition and Refinancing (and their
financing) in an aggregate amount of approximately $150
million.
B. REVOLVING LOANS AND SWING LINE LOANS. Revolving Loans in
the amount of $100,000,000 (or the Dollar Equivalent of such amounts in an
Alternative Currency) may be drawn on or after the Closing Date to be applied by
Borrowers for the purposes set forth in subsections 2.5A(i)-(iii). Thereafter,
Revolving Loans and Swing Line Loans shall be applied by Borrowers for working
capital requirements and general corporate purposes and, subject to a sublimit
of $25,000,000, to issue Letters of Credit.
C. MARGIN REGULATIONS. No portion of the proceeds of any
borrowing under this Agreement shall be used by any of the Borrowers to purchase
or carry Margin Stock or in any other manner that might cause the borrowing or
the application of such proceeds to violate Regulation U, Regulation T or
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.
<PAGE> 89
4.6 SPECIAL PROVISIONS GOVERNING EUROCURRENCY RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the following provisions shall govern with respect to Eurocurrency
Rate Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as
practicable after 10:00 A.M. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all parties)
the interest rate that shall apply to the Eurocurrency Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to the Borrowers and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the
event that Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto absent manifest
error), on any Interest Rate Determination Date with respect to any Eurocurrency
Rate Loans, that by reason of circumstances affecting the relevant Eurocurrency
interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the
definition of Adjusted Eurocurrency Rate, Administrative Agent shall on such
date give notice (by telefacsimile or by telephone confirmed in writing) to the
Borrowers and each Lender of such determination, whereupon (i) no Loans may be
made as, or converted to, Eurocurrency Rate Loans until such time as
Administrative Agent notifies the Borrowers and Lenders that the circumstances
giving rise to such notice no longer exist and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by the Borrowers with respect to the
Loans in respect of which such determination was made shall be deemed to be
rescinded by the Borrowers.
C. ILLEGALITY OR IMPRACTICABILITY OF EUROCURRENCY RATE LOANS.
In the event that on any date any Lender shall have determined (which
determination shall be final and conclusive and binding upon all parties hereto
absent manifest error but shall be made only after consultation with
Administrative Agent) that the making, maintaining or continuation of its
Eurocurrency Rate Loans (i) has become unlawful as a result of compliance by
such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law
<PAGE> 90
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially and
adversely affect the relevant Eurocurrency interbank market or the position of
such Lender in that market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to the Borrowers and Administrative Agent of
such determination (which notice Administrative Agent shall promptly transmit to
each other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Eurocurrency Rate Loans shall be suspended
until such notice shall be withdrawn by the Affected Lender, (b) to the extent
such determination by the Affected Lender relates to a Eurocurrency Rate Loan
then being requested by a Borrower pursuant to a Notice of Borrowing or a Notice
of Conversion/Continuation, the Affected Lender shall make such Loan as (or
convert such Loan to, as the case may be) an Alternate Base Rate Loan, (c) the
Affected Lender's obligation to maintain its outstanding Eurocurrency Rate Loans
(the "AFFECTED LOANS") shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into Alternate Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurocurrency Rate Loan then being
requested by a Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, such Borrower shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Administrative Agent of such rescission on
the date on which the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative Agent shall promptly
transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this subsection 2.6C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, Eurocurrency Rate Loans in accordance with the terms of this
Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST
PERIODS. The Borrowers shall compensate each Lender, upon written request by
that Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, expenses and liabilities
(including any interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Eurocurrency Rate Loans and any loss, expense or liability
<PAGE> 91
sustained by that Lender in connection with the liquidation or re-employment of
such funds) which that Lender may sustain: (i) if for any reason (other than a
default by that Lender) a borrowing of any Eurocurrency Rate Loan does not occur
on a date specified therefor in a Notice of Borrowing or a telephonic request
for borrowing, or a conversion to or continuation of any Eurocurrency Rate Loan
does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment (including any prepayment pursuant to subsection 2.4B(i))
or other principal payment or any conversion of any of its Eurocurrency Rate
Loans occurs on a date prior to the last day of an Interest Period applicable to
that Loan, (iii) if any prepayment of any of its Eurocurrency Rate Loans is not
made on any date specified in a notice of prepayment given by any Borrower, or
(iv) as a consequence of any other default by any Borrower in the repayment of
its Eurocurrency Rate Loans when required by the terms of this Agreement.
E. BOOKING OF EUROCURRENCY RATE LOANS. Any Lender may make,
carry or, subject to Section 11, transfer Eurocurrency Rate Loans at, to, or for
the account of any of its branch offices or the office of an Affiliate of that
Lender; provided that such making, carrying or transferring Eurocurrency Rate
Loans does not result in any costs or taxes to the Borrowers pursuant to
subsection 2.7.
F. ASSUMPTIONS CONCERNING FUNDING OF EUROCURRENCY RATE LOANS.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 2.7A shall be made as though that Lender had actually funded
each of its relevant Eurocurrency Rate Loans through the purchase of a deposit
in dollars or in an Alternative Currency, as applicable, bearing interest at the
rate obtained pursuant to the definition of Eurocurrency Rate in an amount equal
to the amount of such Eurocurrency Rate Loan and having a maturity comparable to
the relevant Interest Period and through the transfer of such Eurocurrency
deposit from an offshore office of that Lender to a domestic office of that
Lender in the United States of America; provided, however, that each Lender may
fund each of its Eurocurrency Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the purposes of calculating
amounts payable under this subsection 2.6 and under subsection 2.7A.
G. EUROCURRENCY RATE LOANS AFTER DEFAULT. After the occurrence
of and during the continuation of a Potential Event of Default or an Event of
Default, (i) except as provided in subsection 2.2(E), the Borrowers may not
elect to have a Loan be made or maintained as, or converted to, a Eurocurrency
Rate Loan after the
<PAGE> 92
expiration of any Interest Period then in effect for that Loan and (ii) subject
to the provisions of subsection 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation given by Company with respect to a requested borrowing
or conversion/continuation that has not yet occurred shall be deemed to be
rescinded by the Borrowers.
4.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the
provisions of subsection 2.7B (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the
Overall Net Income of such Lender) with respect to this
Agreement or any of its obligations hereunder or any payments
to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any
reserve (including any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan,
FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, or
advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with
respect to Eurocurrency Rate Loans that are reflected in the
definitions of Adjusted EURIBOR and Adjusted LIBOR); or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its
applicable lending office) or its obligations hereunder or the
interbank market; and the result of any of the foregoing is to
increase the cost to such Lender of agreeing to make, making
<PAGE> 93
or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable
lending office) with respect thereto;
then, in any such case, the Borrowers shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such
Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender for any such increased cost or reduction in
amounts received or receivable hereunder; provided that the Borrowers
shall not be required to compensate a Lender pursuant to this
subsection for any increased cost or reduction incurred more than six
months prior to the date that such Lender notifies the Borrowers of
such change giving rise to such increased cost or reduction and of such
Lender's intention to claim compensation therefor; provided, further,
that, if such change giving rise to such increased cost or reduction is
retroactive, then the six month period referred to above shall be
extended to include the period of retroactive effect thereof. Such
Lender shall deliver to the Borrowers (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the
basis for calculating the additional amounts owed to such Lender under
this subsection 2.7A, which statement shall be conclusive and binding
upon all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable
by the Borrowers under this Agreement and the other Loan
Documents shall (except to the extent required by law) be paid
free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the Overall Net
Income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any
political subdivision in or of the United States of America or
any other jurisdiction from which a payment is made by or on
behalf of the Borrowers or by any federation or organization
of which the United States of America or any such jurisdiction
is a member at the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If the Borrowers or any
other Person is required by law to make any deduction or
withholding on account of any such Tax from any sum paid or
payable by the Borrowers to Administrative Agent or any Lender
under any of the Loan Documents:
<PAGE> 94
(a) the Borrowers shall notify Administrative Agent
of any such requirement or any change in any such requirement
as soon as any Borrower becomes aware of it;
(b) the Borrowers shall pay any such Tax before the
date on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on the Borrowers) for
its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of Administrative Agent or such
Lender;
(c) the sum payable by the Borrowers in respect of
which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure
that, after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the case may
be, receives on the due date a net sum equal to what it would
have received had no such deduction, withholding or payment
been required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, the Borrowers shall
deliver to Administrative Agent evidence satisfactory to the
other affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant taxing
or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change in any law,
treaty or governmental rule, regulation or order, or any change therein or in
the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof (in the case of each Lender listed on
the signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
affecting any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date of this Agreement
<PAGE> 95
or at the date of such Assignment Agreement, as the case may be, in respect of
payments to such Lender.
(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is not a United States person as
defined in Section 7701(a)(30) of the Internal Revenue Code
(for purposes of this subsection 2.7B(iii), a "NON-US LENDER")
shall deliver to Administrative Agent for transmission to the
Borrowers, on or prior to the Closing Date (in the case of
each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to
which it becomes a Lender (in the case of each other Lender),
and at such other times as may be necessary in the
determination of the Borrowers or Administrative Agent (each
in the reasonable exercise of their discretion), (1) two
original copies of Internal Revenue Service Form 1001 or 4224
(or any successor forms), properly completed and duly executed
by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that
such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any payments
to such Lender of principal, interest, fees or other amounts
payable under any of the Loan Documents or (2) if such Lender
is not a "bank" or other Person described in Section 881(c)(3)
of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause
(1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8BEN (or
any successor form), properly completed and duly executed by
such Lender, together with any other certificate or statement
of exemption requested by the Borrowers required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect
to any payments to such Lender of interest payable under any
of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United States
federal income tax withholding matters pursuant to subsection
2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender
<PAGE> 96
of such forms, certificates or other evidence, whenever a
lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly (1) deliver
to Administrative Agent and the Borrowers two new original
copies of Internal Revenue Service Form 1001 or 4224, or a
Certificate re Non-Bank Status and two original copies of
Internal Revenue Service Form W-8BEN, as the case may be,
properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption requested
by the Borrowers required in order to confirm or establish
that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to payments to
such Lender under the Loan Documents or (2) notify
Administrative Agent and the Borrowers of its inability to
deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c) of
subsection 2.7B(ii) if such Lender shall have failed to
satisfy the requirements of clause (a) or (b)(1) of this
subsection 2.7B(iii); provided that if such Lender shall have
satisfied the requirements of subsection 2.7B(iii)(a) on the
Closing Date (in the case of each Lender listed on the
signature pages hereof) or on the date of the Assignment
Agreement pursuant to which it became a Lender (in the case of
each other Lender), nothing in this subsection 2.7B(iii)(c)
shall relieve the Borrowers of their obligation to pay any
additional amounts pursuant to clause (c) of subsection
2.7B(ii) in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or
order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not
subject to withholding as described in subsection
2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have
determined that the adoption, effectiveness, phase-in or applicability after the
date hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the
<PAGE> 97
interpretation or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by the Borrowers
from such Lender of the statement referred to in the next sentence, the
Borrowers shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis for
such reduction; provided that the Borrowers shall not be required to compensate
a Lender pursuant to this subsection for any reduction incurred more than six
months prior to the date that such Lender notifies the Borrowers of such change
giving rise to such reduction and of such Lender's intention to claim
compensation therefor; provided, further, that, if such change giving rise to
such reduction is retroactive, then the six month period referred to above shall
be extended to include the period of retroactive effect thereof. Such Lender
shall deliver to the Borrowers (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
D. REFUND AND CONTEST. If Administrative Agent or any Lender
receives a refund with respect to Tax deducted, withheld or paid by the
Borrowers and with respect to which the Borrowers have been required to and have
paid an additional amount under this subsection 2.7, which in the good faith
judgment of such Lender is allocable to such deduction, withholding or payment,
it shall promptly pay such refund, together with any other amount paid by the
Borrowers in connection with such refunded Tax, to the Borrowers, net of all
reasonable out-of-pocket expenses of such Lender incurred in obtaining such
refund, provided, however, that the Borrowers agree to promptly return such
refund to Administrative Agent or the applicable Lender, as the case may be, if
the Borrowers receive notice from Administrative Agent or applicable Lender that
such Administrative Agent or Lender is required to repay such refund. Each of
Administrative Agent and such
<PAGE> 98
Lender agrees that it will contest such Tax or liabilities paid by the
Borrowers if Agent or such Lender determines, in good faith and in its sole
discretion, that it would not be materially disadvantaged or prejudiced as a
result of such contest.
4.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE;
REPLACEMENT.
A. MITIGATION. Each Lender and Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or Issuing Lender
responsible for administering the Loans or Letters of Credit of such Lender or
Issuing Lender, as the case may be, becomes aware of the occurrence of an event
or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender or Issuing Lender to receive
payments under subsection 2.7 or subsection 3.6, it will, to the extent not
inconsistent with the internal policies of such Lender or Issuing Lender and any
applicable legal or regulatory restrictions, use reasonable efforts (i) to make,
issue, fund or maintain the Commitments of such Lender or the affected Loans or
Letters of Credit of such Lender or Issuing Lender through another lending or
letter of credit office of such Lender or Issuing Lender, or (ii) take such
other measures as such Lender or Issuing Lender may deem reasonable, if as a
result thereof the circumstances which would cause such Lender to be an Affected
Lender would cease to exist or the additional amounts which would otherwise be
required to be paid to such Lender or Issuing Lender pursuant to subsection 2.7
or subsection 3.6 would be materially reduced and if, as determined by such
Lender or Issuing Lender in its sole discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit through such other
lending or letter of credit office or in accordance with such other measures, as
the case may be, would not otherwise materially adversely affect such
Commitments or Loans or Letters of Credit or the interests of such Lender or
Issuing Lender; provided that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit office pursuant to
this subsection 2.8 unless the Borrowers agree to pay all reasonable incremental
expenses incurred by such Lender or Issuing Lender as a result of utilizing such
other lending or letter of credit office as described in clause (i) above. A
certificate as to the amount of any such expenses payable by the Borrowers
pursuant to this subsection 2.8 (setting forth in reasonable detail the basis
for requesting such amount) shall be submitted by such Lender or Issuing Lender
to the Borrowers (with a copy to Administrative Agent) and such certificate
shall be prima facie evidence thereof manifest error.
B. REPLACEMENT. In the event (a) of a refusal by a Lender to
consent to a proposed change, waiver, discharge or termination with respect to
this
<PAGE> 99
Agreement which has been approved by Requisite Lenders (but requires
consent of all Lenders) as provided in subsection 11.6, (b) any Lender becomes
an Affected Lender or requests compensation under subsection 2.7A, 2.7C or 3.6,
(c) the Borrowers are required to pay any additional amount to any Lender or any
governmental authority for the account of any Lender pursuant to subsection
2.7B, or (d) any Lender defaults in its obligation to fund Loans hereunder, then
the Borrowers may, at their sole expense and effort, if no Potential Event of
Default or Event of Default then exists, replace such Lender (a "REPLACED
LENDER") with one or more Eligible Assignees (collectively, the "REPLACEMENT
LENDER") reasonably acceptable to Administrative Agent, provided that (i) at the
time of any replacement pursuant to this subsection 2.8 the Replacement Lender
shall enter into one or more Assignment Agreements pursuant to subsection 11.1B
(and with all fees payable pursuant to such subsection 11.1B to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all
of the outstanding Loans and Commitments of, and participations in Letters of
Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all unpaid drawings with
respect to Letters of Credit that have been funded by (and not reimbursed to)
such Replaced Lender, together with all then unpaid interest with respect
thereto at such time and (C) an amount equal to all accrued, but theretofore
unpaid, fees owing to the Replaced Lender with respect thereto and (y) the
appropriate Issuing Lender an amount equal to such Replaced Lender's Pro Rata
Share of any unpaid drawings with respect to Letters of Credit (which at such
time remains an unpaid drawing) issued by it to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations (including
without limitation all such amounts, if any, owing under subsection 2.6D) of the
Borrowers owing to the Replaced Lender (other than those specifically described
in clause (i) above in respect of which the assignment purchase price has been,
or is concurrently being, paid), shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements and the acceptance thereof by Administrative Agent
pursuant to subsection 11.1B, the payment of amounts referred to in clauses (i)
and (ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the Borrowers,
the Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder except with respect to
indemnification provisions under this Agreement which by the terms of this
Agreement survive the termination of this Agreement, which indemnification
provisions shall survive as to such
<PAGE> 100
Replaced Lender. Notwithstanding anything to the contrary contained above, no
Issuing Lender may be replaced hereunder at any time while it has Letters of
Credit outstanding hereunder unless arrangements satisfactory to such Issuing
Lender (including the furnishing of a Standby Letter of Credit in form and
substance, and issued by an issuer satisfactory to such Issuing Lender or the
furnishing of cash collateral in amounts and pursuant to arrangements
satisfactory to such Issuing Lender) have been made with respect to such
outstanding Letters of Credit. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to require such
assignment and delegation cease to apply.
4.9 BORROWING SUBSIDIARIES.
Company, may, from time to time, designate any Person which is
or becomes a Domestic Subsidiary or Material Foreign Subsidiary (if such
Material Foreign Subsidiary becomes a Subsidiary Guarantor) to be a Domestic
Borrower or a Foreign Borrower, as the case may be, pursuant to this subsection
2.9 effective on a date not later than thirty days after written notice to
Administrative Agent accompanied by (a) an Assumption Agreement in the form of
Exhibit XIV attached hereto executed by such Subsidiary and acknowledged by
Company and each Subsidiary Guarantor, (b) a certificate of good standing (or
equivalent thereof, if any) of such Subsidiary in the jurisdiction of its
organization, (c) certified resolutions of the Board of Directors of such
Subsidiary authorizing the execution and delivery of the Assumption Agreement,
and any other documents required to be delivered by this subsection 2.9,
subsection 6.8 or subsection 6.9, and (d) such other information, certificates
or legal opinions as Administrative Agent reasonably may request. Unless
Administrative Agent notifies Company prior to the effective date specified in
the designation notice that the Joint Lead Arrangers have decided that such
Subsidiary shall not become a Borrower, such Subsidiary shall become a Borrower
on the effective date specified in the designation notice or such earlier date
agreed to by the Joint Lead Arrangers. In respect of each Foreign Borrower,
Company shall, with the approval of the Administrative Agent (which approval
shall not be withheld or delayed), specify the relevant sublimit for Borrowings
under this Agreement by such Foreign Borrower and shall update Schedule
2.1(a)(iv) accordingly.
5 SECTION
LETTERS OF CREDIT
<PAGE> 101
6.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to any Borrower requesting
that Revolving Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and
that the Swing Line Lender make Swing Line Loans pursuant to subsection
2.1A(iii), Company and Domestic Borrowers may request, in accordance with the
provisions of this subsection 3.1, from time to time during the period from the
Closing Date to, but excluding the date that is 30 days prior to the Revolving
Loan Commitment Termination Date, that one or more Revolving Lenders issue
Letters of Credit for the account of Company or a Domestic Borrower for the
purposes specified in the definition of Standby Letters of Credit. Subject to
the terms and conditions of this Agreement and in reliance upon the
representations and warranties of the Borrowers herein set forth, any one or
more Revolving Lenders may, but (except as provided in subsection 3.1B(ii))
shall not be obligated to, issue such Letters of Credit in accordance with the
provisions of this subsection 3.1; provided that such Letters of Credit shall be
issued on a sight basis only and Borrowers shall not request that any Revolving
Lender issue (and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to
such issuance, the Total Utilization of Revolving Loan Commitments
would exceed the Revolving Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to
such issuance, the Letter of Credit Usage would exceed $25,000,000;
(iii) any Letter of Credit denominated in a currency
other than Dollars;
(iv) any Letter of Credit having an expiration date
later than the earlier of (a) the date that is ten Business Days prior
to the Revolving Loan Commitment Termination Date and (b) the date
which is one year from the date of issuance of such Letter of Credit;
provided that the immediately preceding clause (b) shall not prevent
any Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend
for any such additional period; and provided, further, that such
Issuing Lender shall elect not to extend such Letter of Credit if it
has knowledge that an Event of Default or Potential Event of Default
has occurred and is continuing (and has not been waived in accordance
with subsection 11.6) at
<PAGE> 102
the time such Issuing Lender must elect whether or not to allow such
extension; or
(v) any Letter of Credit for the account of a Foreign
Borrower.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company or a
Domestic Borrower desires the issuance of a Letter of Credit, Company
shall deliver to Administrative Agent a Notice of Request to Issue
Letter of Credit in the form of EXHIBIT III annexed hereto no later
than 12:00 Noon (New York City time) at least three Business Days or in
any case such shorter period as may be agreed to by the Issuing Lender
in any particular instance, in advance of the proposed date of
issuance. The Notice of Request to Issue Letter of Credit shall specify
(a) the proposed date of issuance (which shall be a Business Day), (b)
the face amount of the Letter of Credit, (c) the expiration date of the
Letter of Credit, (d) the name and address of the beneficiary, (e) the
account party, and (d) either the verbatim text of the proposed Letter
of Credit or the proposed terms and conditions thereof, including a
precise description of any documents to be presented by the beneficiary
which, if presented by the beneficiary prior to the expiration date of
the Letter of Credit, would require the Issuing Lender to make payment
under the Letter of Credit; provided that the Issuing Lender, in its
reasonable discretion, may require changes in the text of the proposed
Letter of Credit or any such documents.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender) prior
to the issuance of any Letter of Credit in the event that any of the matters to
which the applicable Borrower is required to certify in the applicable Notice of
Request to Issue Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the issuance of any
Letter of Credit, Company shall be deemed to have re-certified, as of the date
of such issuance, as to the matters to which the applicable Borrower is required
to certify in the applicable Notice of Request to Issue Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by
Administrative Agent of a Notice of Request to Issue Letter of Credit
<PAGE> 103
pursuant to subsection 3.1B(i) requesting the issuance of a Letter of
Credit, in the event Administrative Agent elects to issue such Letter
of Credit, Administrative Agent shall promptly so notify the applicable
Borrower, and Administrative Agent shall be the Issuing Lender with
respect thereto. In the event that Administrative Agent, in its sole
discretion, elects not to issue such Letter of Credit, Administrative
Agent shall promptly so notify the applicable Borrower, whereupon the
applicable Borrower may request any other Revolving Lender to issue
such Letter of Credit by delivering to such Revolving Lender a copy of
the applicable Notice of Request to Issue Letter of Credit. Any
Revolving Lender so requested to issue such Letter of Credit shall
promptly notify the applicable Borrower and Administrative Agent
whether or not, in its sole discretion, it has elected to issue such
Letter of Credit, and any such Revolving Lender which so elects to
issue such Letter of Credit shall be the Issuing Lender with respect
thereto. In the event that all other Revolving Lenders shall have
declined to issue such Letter of Credit, notwithstanding the prior
election of Administrative Agent not to issue such Letter of Credit,
Administrative Agent shall be obligated to issue such Letter of Credit
and shall be the Issuing Lender with respect thereto, notwithstanding
the fact that the Letter of Credit Usage with respect to such Letter of
Credit and with respect to all other Letters of Credit issued by
Administrative Agent, when aggregated with Administrative Agent's
outstanding Revolving Loans, may exceed Administrative Agent's
Revolving Loan Commitment then in effect.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction
or waiver (in accordance with subsection 11.6) of the conditions set
forth in subsection 4.3, the Issuing Lender shall issue the requested
Letter of Credit in accordance with the Issuing Lender's standard
operating procedures.
(iv) NOTIFICATION TO REVOLVING LENDERS. Upon the
issuance of any Letter of Credit, the applicable Issuing Lender shall
promptly notify Administrative Agent and the Administrative Agent shall
notify each other Revolving Lender of such issuance, which notice shall
be accompanied by a copy of such Letter of Credit. Promptly after
receipt of such notice (or, if Administrative Agent is the Issuing
Lender, together with such notice), Administrative Agent shall notify
each Revolving Lender of the amount of such Revolving Lender's
respective participation in such Letter of Credit, determined in
accordance with subsection 3.1C.
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(v) REPORTS TO REVOLVING LENDERS. Within 3 days after
the end of each calendar quarter ending after the Closing Date, so long
as any Letter of Credit shall have been outstanding during such
calendar quarter, each Issuing Lender shall deliver to Administrative
Agent a report setting forth for such calendar quarter the daily
aggregate amount available to be drawn under the Letters of Credit
issued by such Issuing Lender that were outstanding during such
calendar quarter.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of Credit, each Revolving
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased from
the Issuing Lender a participation in such Letter of Credit and any drawings
honored thereunder in an amount equal to such Revolving Lender's Pro Rata Share
of the maximum amount which is or at any time may become available to be drawn
thereunder.
6.2 LETTER OF CREDIT FEES.
The Borrowers agree to pay the following amounts with respect
to Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a
fronting fee, payable directly to the applicable Issuing
Lender for its own account, equal to (i) the greater of $500
or 0.1875% per annum of the daily amount available to be drawn
under such Letter of Credit or (ii) such lesser amount as is
negotiated between the applicable Borrower and the applicable
Issuing Lender and (b) a letter of credit fee, payable to
Administrative Agent for the account of Revolving Lenders,
equal to the applicable Eurocurrency Rate Margin per annum of
the daily amount available to be drawn under such Letter of
Credit, each such fronting fee or letter of credit fee to be
payable in arrears on and to (but excluding) the fourth
Business Day of April, July, October and January of each year
and computed on the basis of a 360 day year for the actual
number of days elapsed;
(ii) with respect to the issuance, amendment or
transfer of each Letter of Credit and each payment of a
drawing made thereunder (without duplication of the fees
payable under clauses (a) and (b) above), documentary and
processing charges payable directly to the applicable Issuing
Lender for its own account in accordance with such Issuing
Lender's
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standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may
be.
For purposes of calculating any fees payable under clause (i)
of this subsection 3.2, the daily amount available to be drawn under any Letter
of Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) of this subsection 3.2, Administrative Agent shall
distribute to each Revolving Lender its Pro Rata Share of such amount.
6.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS
OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS.
In determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. REIMBURSEMENT BY THE BORROWERS OF AMOUNTS PAID UNDER
LETTERS OF CREDIT. In the event an Issuing Lender has determined to honor a
drawing under a Letter of Credit issued by it, such Issuing Lender shall
immediately notify the Borrowers and Administrative Agent, and the Borrowers
shall reimburse such Issuing Lender on or before the Business Day immediately
following the date on which such drawing is honored (the "REIMBURSEMENT DATE")
in an amount in Dollars and in same day funds equal to the amount of such
honored drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless the Borrowers shall have notified
Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New York City
time) on the date such drawing is honored that the Borrowers intend to reimburse
such Issuing Lender for the amount of such
<PAGE> 106
honored drawing with funds other than the proceeds of Revolving Loans, the
Borrowers shall be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Revolving Lenders to make Revolving Loans that
are Alternate Base Rate Loans on the Reimbursement Date in an amount in Dollars
equal to the amount of such honored drawing and (ii) subject to satisfaction or
waiver of the conditions specified in subsections 4.3 and 4.4, Revolving Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Alternate Base
Rate Loans in the amount of such honored drawing, the proceeds of which shall be
applied directly by Administrative Agent to reimburse such Issuing Lender for
the amount of such honored drawing; and provided, further, that if for any
reason proceeds of Revolving Loans are not received by such Issuing Lender on
the Reimbursement Date in an amount equal to the amount of such honored drawing,
the Borrowers shall reimburse such Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such honored drawing over
the aggregate amount of such Revolving Loans, if any, which are so received.
Nothing in this subsection 3.3B shall be deemed to relieve any Revolving Lender
from its obligation to make Revolving Loans on the terms and conditions set
forth in this Agreement, and the Borrowers shall retain any and all rights they
may have against any Revolving Lender resulting from the failure of such
Revolving Lender to make such Revolving Loans under this subsection 3.3B.
C. PAYMENT BY REVOLVING LENDERS OF UNREIMBURSED AMOUNTS PAID
UNDER LETTERS OF CREDIT.
(i) PAYMENT BY REVOLVING LENDERS. In the event that
the Borrowers shall fail for any reason to reimburse any Issuing Lender
as provided in subsection 3.3B in an amount equal to the amount of any
drawing honored by such Issuing Lender under a Letter of Credit issued
by it, such Issuing Lender shall promptly notify the Administrative
Agent which shall promptly notify each other Revolving Lender of the
unreimbursed amount of such honored drawing and of such other Revolving
Lender's respective participation therein based on such Revolving
Lender's Pro Rata Share. Each Revolving Lender shall make available to
the Administrative Agent for the benefit of such Issuing Lender which
the Administrative Agent shall make available to such Issuing Lender an
amount equal to its respective participation, in Dollars and in same
day funds, at the office of such Issuing Lender specified in such
notice, not later than 12:00 Noon (New York City time) on the first
business day (under the laws of the jurisdiction in which such office
of such Issuing Lender is located) after the date notified by such
Issuing Lender. In the event that any Revolving Lender fails to make
available to the Administrative Agent for the benefit of such Issuing
Lender on such business day the amount of such Revolving Lender's
participation in such Letter of Credit as provided in this subsection
3.3C, such Issuing Lender shall be entitled to recover through the
Administrative Agent such amount on demand from such Revolving Lender
together with interest thereon at the rate customarily used by such
Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Alternate Base Rate. Nothing in
this subsection 3.3C shall be deemed to prejudice the right of any
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Revolving Lender to recover from any Issuing Lender through the
Administrative Agent any amounts made available by such Revolving
Lender through the Administrative Agent to such Issuing Lender pursuant
to this subsection 3.3C in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such Issuing Lender in respect of
which payment was made by such Revolving Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) DISTRIBUTION TO REVOLVING LENDERS OF
REIMBURSEMENTS RECEIVED FROM THE Borrowers. In the event any Issuing
Lender shall have been reimbursed by other Revolving Lenders through
the Administrative Agent pursuant to subsection 3.3C(i) for all or any
portion of any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, such Issuing Lender shall distribute to the
Administrative Agent who shall distribute to each other Revolving
Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Revolving
Lender's Pro Rata Share of all payments subsequently received by such
Issuing Lender from the Borrowers in reimbursement of such honored
drawing when such payments are received. Any such distribution shall be
made to a Revolving Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Revolving Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY THE BORROWERS. The
Borrowers agree to pay to each Issuing Lender, with respect to drawings
honored under any Letters of Credit issued by it, interest on the
amount paid by such Issuing Lender in respect of each such honored
drawing from the date such drawing is honored to but excluding the date
such amount is reimbursed by the Borrowers (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date
such drawing is honored to but excluding the Reimbursement Date, the
rate then in effect under this Agreement with respect to Revolving
Loans that are Alternate Base Rate Loans and (b) thereafter, a rate
which is 2% per annum in excess of the rate of interest otherwise
payable under this Agreement with respect to Revolving Loans that are
Alternate Base Rate Loans. Interest payable pursuant to this subsection
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3.3D(i) shall be computed on the basis of a 365 or 366 day year for the
actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on
which the related drawing under a Letter of Credit is reimbursed in
full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING
LENDER. Promptly upon receipt by any Issuing Lender of any payment of
interest pursuant to subsection 3.3D(i) with respect to a drawing
honored under a Letter of Credit issued by it, (a) such Issuing Lender
shall distribute to the Administrative Agent for distribution to each
other Revolving Lender, out of the interest received by such Issuing
Lender in respect of the period from the date such drawing is honored
to but excluding the date on which such Issuing Lender is reimbursed
for the amount of such drawing (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B), the
amount that such other Revolving Lender would have been entitled to
receive in respect of the letter of credit fee that would have been
payable in respect of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been honored under such Letter of
Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i)
for all or any portion of such honored drawing, such Issuing Lender
shall distribute to the Administrative Agent for distribution to each
other Revolving Lender which has paid all amounts payable by it under
subsection 3.3C(i) with respect to such honored drawing such other
Revolving Lender's Pro Rata Share of any interest received by such
Issuing Lender in respect of that portion of such honored drawing so
reimbursed by other Revolving Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Revolving Lenders
to but excluding the date on which such portion of such honored drawing
is reimbursed by the Borrowers. Any such distribution shall be made to
a Revolving Lender at its primary address set forth below its name on
the appropriate signature page hereof or at such other address as such
Revolving Lender may request.
6.4 OBLIGATIONS ABSOLUTE.
The obligation of the Borrowers to reimburse each Issuing
Lender for drawings honored under the Letters of Credit issued by it and to
repay any Revolving Loans made by Revolving Lenders pursuant to subsection 3.3B
and the obligations of Revolving Lenders under subsection 3.3C(i) shall be
unconditional and
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irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, set-off, defense or
other right which the Borrowers or any Revolving Lender may have at any
time against a beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such transferee may be acting), any
Issuing Lender or other Revolving Lender or any other Person or, in the
case of a Revolving Lender, against the Borrowers, whether in
connection with this Agreement, the transactions contemplated herein or
any unrelated transaction (including any underlying transaction between
the Borrowers or any of their Subsidiaries and the beneficiary for
which any Letter of Credit was procured);
(iii) any draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under
any Letter of Credit against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of
Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of
Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a
Potential Event of Default shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful
<PAGE> 110
misconduct of such Issuing Lender under the circumstances in question (as
determined by a final judgment of a court of competent jurisdiction).
6.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as provided
in subsection 3.6, the Borrowers hereby agree to protect, indemnify, pay and
save harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
Governmental Authority (all such acts or omissions herein called "GOVERNMENTAL
ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between the Borrowers
and any Issuing Lender, the Borrowers assume all risks of the acts and omissions
of, or misuse of the Letters of Credit issued by such Issuing Lender by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Lender shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) 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; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of
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Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of such Issuing Lender,
including any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of such Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth in the first paragraph of this subsection 3.5B,
any action taken or omitted by any Issuing Lender under or in connection with
the Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
under any resulting liability to the Borrowers.
Notwithstanding anything to the contrary contained in this
subsection 3.5, the Borrowers shall retain any and all rights they may have
against any Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of such Issuing Lender, as determined by a
final judgment of a court of competent jurisdiction.
6.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Revolving Lender shall determine (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto) that any law, treaty or governmental rule, regulation or order, or any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Revolving Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Revolving Lender
(or its applicable lending or letter of credit office) to any
additional Tax (other than any Tax on the Overall Net Income of such
Issuing Lender or Revolving Lender) with respect to the issuing or
maintaining of any Letters of Credit or the purchasing or maintaining
of any participations therein or any other obligations under this
Section 3, whether directly or by such being imposed on or suffered by
any particular Issuing Lender;
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(ii) imposes, modifies or holds applicable any
reserve (including any marginal, emergency, supplemental, special or
other reserve), special deposit, compulsory loan, FDIC insurance or
similar requirement in respect of any Letters of Credit issued by any
Issuing Lender or participations therein purchased by any Revolving
Lender; or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Issuing Lender or
Revolving Lender (or its applicable lending or letter of credit office)
regarding this Section 3 or any Letter of Credit or any participation
therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Revolving Lender of agreeing to issue, issuing or maintaining any
Letter of Credit or agreeing to purchase, purchasing or maintaining any
participation therein or to reduce any amount received or receivable by such
Issuing Lender or Revolving Lender (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, the Borrowers shall
promptly pay to such Issuing Lender or Revolving Lender, upon receipt of the
statement referred to in the next sentence, such additional amount or amounts as
may be necessary to compensate such Issuing Lender or Revolving Lender for any
such increased cost or reduction in amounts received or receivable hereunder;
provided that the Borrowers shall not be required to compensate a Lender
pursuant to this subsection for any increased cost or reduction incurred more
than six months prior to the date that such Lender notifies the Borrowers of
such change giving rise to such increased cost or reduction and of such Lender's
intention to claim compensation therefor; provided, further, that, if such
change giving rise to such increased cost or reduction is retroactive, then the
six months period referred to above shall be extended to include the period of
retroactive effect thereof. Such Issuing Lender or Revolving Lender shall
deliver to the Borrowers (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Issuing Lender or Revolving Lender under this
subsection 3.6, which statement shall be prima facie evidence thereof absent
manifest error.
7 SECTION
8 CONDITIONS
8.1 ANNOUNCEMENT DATE AND EFFECTIVENESS OF COMMITMENTS.
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The effectiveness of each Lender's Commitment was subject to
the following conditions precedent, each of which was satisfied on or prior to
the Announcement Date (and the Administrative Agent's written confirmation that
the following conditions were satisfied was conclusive evidence thereof for
purposes of this subsection 4.1 but does not deny Administrative Agent or the
Lenders of the exercise of any remedies, which exercise shall not be
inconsistent with the confirmation to be given for the purposes of compliance
with Rule 24.7 of the City Code):
A. Administrative Agent received all of the following, each of
which was an original unless otherwise specified, was properly
executed by each party thereto, was dated as of the
Announcement Date and was in form and substance reasonably
satisfactory to Administrative Agent and its legal counsel:
(i) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to Administrative
Agent for additional executed counterparts, sufficient in number for
distribution to the Lenders and Borrowers together with all Exhibits
thereto;
(ii) (x) a certificate as to the good standing of
each Loan Party as of a recent date, from the Secretary of State of the
state of such Loan Party's organization (other than for Newco); (y) a
certificate of the Secretary or Assistant of each Loan Party dated the
Announcement Date and certifying (A) that attached thereto is a true
and complete copy of the articles or certificate of incorporation, the
by-laws or memorandum and articles of association and other
organizational documents of such Loan Party as in effect on the
Announcement Date and at all times since the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors or
a Committee of the Board of Directors of such Loan Party, as
applicable, authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party (including in the case
of each Borrower, the borrowings hereunder and in the case of Company,
the Company Guaranty of the borrowings hereunder), and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of
incorporation of Company have not been amended since the date of the
last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (x) above, and (D) as to the incumbency
and specimen signature of each officer authorized, to the extent
applicable, to act
<PAGE> 114
with respect to the Loan Documents and each of the other documents
related thereto; and (z) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (y) above;
(iii) a Solvency Certificate of the chief financial
officer of the Company; and
B. Administrative Agent received, on behalf of itself and the
Lenders and the Issuing Bank, a favorable written opinion of each of (i) Jones,
Day, Reavis & Pogue, special United States counsel for the Loan Parties,
substantially to the effect set forth in EXHIBIT IX-A, (ii) General Counsel of
Company to the effect set forth in EXHIBIT IX-B and (iii) Allen & Overy, special
United Kingdom counsel for the Loan Parties, substantially to the effect set
forth in EXHIBIT IX-C.
C. Administrative Agent's fees payable pursuant to subsection
2.3 and other amounts due and payable prior to the Announcement Date were paid.
D. Except as set forth on SCHEDULE 5.6 or the most recent Form
10-K filed by the Company, no material action, suit, proceeding or investigation
was pending against any Borrower; no law, regulation, judgment or court order
was applicable that constrained, prevented or imposed materially adverse
conditions upon the Offer or the making of the Loans; and each Borrower received
all governmental and material third party approvals and consents necessary and
advisable in connection with the Transactions (other than those relating to
antitrust and competition requirements) and all such approvals and consents were
in full force and effect.
E. No circumstance or event occurred that constitutes a
Material Adverse Effect since December 31, 1999.
F. The reasonable costs and expenses of Administrative Agent
in connection with the preparation of the Loan Documents payable pursuant to
subsection 11.2 as identified in writing to Company were paid.
G. The representations and warranties of each Borrower
contained in Section 5 were true and correct in all material respects.
<PAGE> 115
H. Administrative Agent received evidence that the Offer was
recommended by the Board of Directors of Target.
I. Administrative Agent received copies, certified as being
true and complete copies by an authorized officer of Company, of the Press
Release (in sufficient quantity for each Lender) which was issued for the
purposes of and in accordance with Rule 2.5 of the City Code prior to May 30,
2000.
J. Administrative Agent received evidence that the resolutions
of the Board of Directors of Company necessary to launch the Offer were
obtained.
K. No Potential Event of Default or Event of Default occurred.
L. Administrative Agent received evidence of satisfactory
insurance coverage for the Company and its Subsidiaries after giving effect to
the Acquisition.
M. Administrative Agent received (i) historical audited
financial statements of Company and Target, (ii) 1999 pro forma financial
statements of Company after giving effect to the Acquisition and (iii) five year
projections of Company after giving effect to the Acquisition.
N. Administrative Agent received evidence that satisfactory
arrangements have been implemented in order to downstream proceeds of Offer
Borrowings made to the Company.
O. Administrative Agent received evidence that the Bridge Loan
Documents which were to have been executed as of the Announcement Date were
executed.
8.2 CONDITIONS TO CLOSING.
The obligation of each Lender to make the initial Borrowing on
the Closing Date is subject to the Announcement Date having occurred, and to the
satisfaction of the following conditions precedent (unless all of the Lenders,
in their sole and absolute discretion, shall agree otherwise):
(i) Administrative Agent shall have received a copy,
certified as being a true and complete copy by an authorized officer of
<PAGE> 116
Company, of the Offer Document reflecting the terms of the Press
Release previously approved by the Joint Lead Arrangers;
(ii) Administrative Agent shall have received a copy
of the announcement that the Offer has been declared or become
unconditional in all respects together with an Officer's Certificate
that no condition to the Offer has been knowingly waived except to the
extent permitted by this Agreement;
(iii) Administrative Agent shall have received
evidence that any actions of the shareholders of Company required to
implement the Offer have been taken or confirmation from the Company
that no such action is required;
(iv) All fees and other amounts due and payable by
the Company under the Loan Documents prior to the Closing Date and
notified in writing to Company (including pursuant to any fee letter
signed by Company) shall have been paid in full;
(v) To the extent requested, Notes executed by each
Borrower in favor of each Lender with respect to each Class of Loan,
each in a principal amount equal to that Lender's Commitment with
respect to each Class of Loan;
(vi) Execution and delivery to the Collateral Agent
of the Pledge Agreement (together with all stock certificates and notes
the subject thereof), the UK Share Charge and the UK Debenture;
(vii) Execution of the Subsidiary Guaranty by each of
Lincoln Electric International Holding Company, The Lincoln Electric
Company, Lincoln Global, Inc. and Harris Calorific, Inc.;
(viii) The condition in the Offer relating to the
obtaining of all anti-trust and competition Governmental Authorizations
necessary in connection with the Offer shall have been satisfied (or
waived with the consent of the Joint Lead Arrangers);
(ix) All Scheduled Indebtedness shall have been
repaid in full or shall be repaid in full with the proceeds of the
initial Loans, except as
<PAGE> 117
otherwise agreed by the Requisite Lenders and except for Scheduled
Indebtedness of Target or its Subsidiaries; and
(x) Administrative Agent shall have received evidence
that funding has occurred (or will occur simultaneously) under the
Bridge Loan Documents or that the Takeout Debt has been or will
simultaneously be) issued under the Takeout Debt Documents.
8.3 CONDITIONS TO OFFER BORROWINGS.
The obligation of each Lender to make any Offer Borrowing is
subject to the Announcement Date and the Closing Date having occurred (or having
occurred simultaneously therewith), and to the following conditions precedent,
each of which shall be satisfied prior to the making of any Offer Borrowing
(unless the Requisite Lenders, in their sole and absolute discretion, shall
agree otherwise):
(i) Prior to or contemporaneously with such Offer
Borrowing, Newco shall have received acceptances for or acquired and/or
agreed to acquire, whether pursuant to the Offer or otherwise, Shares
carrying in aggregate at least equal to a percentage previously agreed
to by Company and the Joint Lead Arrangers of the voting rights of
Target;
(ii) No Event of Default pursuant to subsections 8.6,
8.7, 8.9 or 8.12 shall have occurred and be continuing in respect of
Target or any Borrower;
(iii) Newco shall not (without the consent of the
Requisite Lenders) have waived any of the material conditions or varied
any of the material terms of the Offer (other than those as required by
the City Code) as set forth in the Announcement, other than any waiver
of the Acceptance Condition (but not below the agreed percentage
referred to in (i) above) or an extension of the time for acceptance of
the Offer (but not later than the Offer Termination Date, without the
consent of the Requisite Lenders) or any waiver of the conditions
referred to in subsection 4.2(viii) with the consent of the Joint Lead
Arrangers;
(iv) The price payable per share of Target common
stock pursuant to the Offer shall not, without the consent of the
Requisite Lenders, have been increased above a price per share agreed
to in writing with the Joint Lead Arrangers; and
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(v) Administrative Agent's receipt of a Notice of
Borrowing for such Offer Borrowing.
8.4 CONDITIONS TO OTHER BORROWINGS.
The obligation of each Lender to make any Other Borrowing, and
the obligation of the Issuing Lender to issue any Letter of Credit, is subject
to the Announcement Date and the Closing Date having occurred, and to the
following conditions precedent (unless the Requisite Lenders or, in any case
where the approval of all of the Lenders is required pursuant to subsection
11.6, all of the Lenders in their sole and absolute discretion, shall agree
otherwise):
(i) Administrative Agent shall have received prior
written Notice of Borrowing;
(ii) The representations and warranties contained in
Section 5 shall be true and correct in all material respects on and as
of the date of the Loan as though made on that date;
(iii) No Potential Event of Default or Event of
Default shall have occurred and be continuing; and
(iv) No circumstance or event shall have occurred
that constitutes a Material Adverse Effect since the Closing Date.
9 SECTION
10 REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit and to
induce other Lenders to purchase participations therein, each Borrower: (i)
represented and warranted to each Lender (both before and after giving effect to
the Acquisition and the transactions in connection therewith), on the date of
the Existing Agreement, that the following statements were true, correct and
complete and (ii) represents and warrants to each Lender (both before and after
giving effect to the Acquisition and the transactions in connection therewith),
on the date of this Agreement, on each
<PAGE> 119
Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
10.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING,
BUSINESS AND SUBSIDIARIES.
A. ORGANIZATION AND POWERS. The Company and each of its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization as specified in
SCHEDULE 5.1 annexed hereto. The Company and each of its Subsidiaries has all
requisite corporate power and authority to own and operate its properties and
assets, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. The Company and each of
its Subsidiaries is qualified to do business and in good standing in every
jurisdiction in which it owns or leases real property and wherever necessary to
carry out its business and operations, except in jurisdictions where the failure
to be so qualified or in good standing has not had and could not reasonably be
expected to have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in pursuant to subsection
7.14.
D. SUBSIDIARIES. All of the Subsidiaries of Company are
identified in SCHEDULE 5.1 annexed hereto, as said SCHEDULE 5.1 may be
supplemented from time to time pursuant to the provisions of subsection 6.1(xv).
The capital stock of each of the Subsidiaries of Company identified in SCHEDULE
5.1 annexed hereto (as so supplemented) is duly authorized, validly issued,
fully paid and nonassessable and free and clear of all liens except liens
created by the Loan Documents and liens permitted thereunder and none of such
capital stock constitutes Margin Stock. Each of the Subsidiaries of Company
identified in SCHEDULE 5.1 annexed hereto (as so supplemented) is an entity duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation set forth therein, has all requisite
power and authority to own and operate its properties and to carry on its
business as now conducted and as proposed to be conducted, and is qualified to
do business and in good standing in every jurisdiction where it owns or leases
real property and wherever necessary to carry out its business and operations,
in each
<PAGE> 120
case except where the failure to be so qualified or in good standing or
a lack of such corporate power and authority has not had and could not
reasonably be expected to have a Material Adverse Effect. SCHEDULE 5.1 annexed
hereto (as so supplemented) correctly sets forth the ownership interests of
Company and each of its Subsidiaries in each of the Subsidiaries of Company
identified therein.
10.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents have been duly authorized by all necessary
action on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by any
Loan Party of the Loan Documents to which it is a party and the consummation of
the Transactions do not and will not (i) violate any provision of any law,
statute, or any governmental rule or regulation applicable to such Loan Party,
the Certificate or Articles of Incorporation or Bylaws, or any comparable
organizational document, of such Loan Party or any order, judgment, writ,
injunction or decree of any court or other agency of government binding on such
Loan Parties, (ii) conflict with, be inconsistent with, result in a breach of
any of the terms, covenants, conditions or provisions of, or constitute (with
due notice or lapse of time or both) a default under any Material Contract of
such Loan Party (except for the Material Contracts referred to on Schedule 2.5,
with respect to performance, but not execution and delivery, are violations),
(iii) result in or require the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the properties or assets of such Loan
Party (other than any Liens created under any of the Loan Documents in favor of
the Collateral Agent on behalf of Lenders) pursuant to the terms of any
indenture, mortgage, deed of trust, agreement or other instrument to which such
Loan Party is a party or by which any of its property or assets is bound or to
which it may be subject, or (iv) require any approval of stockholders or any
approval or consent of any Person under any Material Contract of such Loan Party
(except for the Material Contracts referred to on Schedule 2.5, with respect to
which performance of the Loan Documents, but not execution and delivery thereof,
are violations), except for such approvals or consents which will be obtained on
or before the Closing Date and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
(i) the execution,
<PAGE> 121
delivery and performance of any Loan Document by any Loan Party that is a party
thereto or the consummation of the Acquisition or (ii) the legality, validity,
binding effect or enforceability of any Loan Document with respect to any Loan
Party that is a party thereto, except (x) those listed on SCHEDULE 5.2C that (I)
have already been duly made or obtained and remain in full force and effect or
(II) will have been made or obtained and be in full force and effect on the date
of the initial Borrowings hereunder and (y) the filing of UCC-1 financing
statements in the appropriate filing offices and the recording of the Mortgages
in the appropriate recording offices and in the case of the UK Share Charge and
the UK Debenture, the registrations under section 395 Companies Act, and
otherwise, compliance with and registration under any analogous requirements in
any other relevant jurisdiction in respect of any Loan Documents.
D. BINDING OBLIGATION. Subject to compliance with any
formalities referred to in 5.2 C above, each of the Loan Documents has been duly
executed and delivered by each Loan Party that is a party thereto and is the
legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and (ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant of good faith and
fair dealing.
10.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the audited financial statements (including balance sheets and
statements of operations, stockholders' equity and cash flows) of Company and
its Subsidiaries for the fiscal year ended December 31, 1999. All such
statements were prepared in conformity with GAAP and fairly present the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the date thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for the
period then ended. Company does not (and will not immediately following the
funding of the initial Loans) have any Contingent Obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing financial statements
or the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets or financial condition of Company and
its Subsidiaries taken as a whole.
10.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR
PAYMENTS.
<PAGE> 122
Since December 31, 1999, no event, act, condition or change
has occurred that has caused, evidences or could reasonably be expected to have,
either in any case or in the aggregate, a Material Adverse Effect. Since
December 31, 1999, neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5.
10.5 TITLE TO PROPERTIES; LIENS.
Company and its Subsidiaries have (i) good and marketable
title to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property),
or (iii) good and marketable title to (in the case of all other personal
property), all of their respective real properties, personal properties and
assets necessary or useful for the conduct of their business, in each
case except for assets disposed of since the date of the most recent financial
statements received by Administrative Agent in the ordinary course of business
or as otherwise permitted under subsection 7.7 and except where failure to have
such title would not, individually or in the aggregate, have a Material Adverse
Effect. Except as permitted under subsection 7.2, all such properties and assets
are free and clear of Liens. Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all of their respective leases, except where any
failure could not reasonably be expected to have a Material Adverse Effect.
10.6 LITIGATION; ADVERSE FACTS.
Except as set forth on SCHEDULE 5.6, there are no actions,
suits, proceedings, arbitrations or investigations (whether or not purportedly
on behalf of Company or any of its Subsidiaries) at law or in equity, or before
or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign
(including any Environmental Claims) that are pending or, to the knowledge of
Company, threatened against or affecting Company or any of its Subsidiaries or
any property, license or registration of Company or any of its Subsidiaries and
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is
in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or
<PAGE> 123
foreign, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
10.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all Tax
returns and reports of Company and its Subsidiaries required to be filed by any
of them have been timely filed, and all Taxes shown on such Tax returns to be
due and payable and Taxes imposed on Company and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable, except for Taxes that are being
contested in good faith by appropriate proceedings for which Company or relevant
Subsidiary, as applicable, has set aside on its books adequate reserves in
accordance with GAAP. Neither Company nor any of its Subsidiaries knows of any
proposed Tax assessment against Company or any of its Subsidiaries which is not
being actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings (but only to the extent such assessment or the failure
to pay the same could reasonably be expected to have a Material Adverse Effect);
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
10.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS;
MATERIAL CONTRACTS.
A. Neither Company nor any of its Subsidiaries is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of its Material Contracts, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, could not reasonably be expected
to have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to
or is otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. SCHEDULE 5.8 contains a true, correct and complete list of
all the Material Contracts in effect on the Announcement Date and on the date
hereof. Except as described on SCHEDULE 5.8, all such Material Contracts are in
full force and effect and no defaults currently exist thereunder.
10.9 GOVERNMENTAL REGULATION; ACCREDITATION.
<PAGE> 124
Neither Company nor any of its Subsidiaries is (x) an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
10.10 SECURITIES ACTIVITIES.
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
10.11 EMPLOYEE BENEFIT PLANS.
A. Except as would not reasonably be expected to result in a Material Adverse
Effect: (i) Company, each of its Subsidiaries and each of their respective ERISA
Affiliates are in compliance with all applicable provisions and requirements of
ERISA and the regulations and with respect to each Employee Benefit Plan and
have performed all their obligations under each Employee Benefit Plan and (ii)
each Pension Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified.
B. No ERISA Event that would reasonably be expected to result
in a Material Adverse Effect has occurred or is reasonably expected to occur.
C. As of the most recent valuation date for any Pension Plan,
the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which if amortized over ten years, would not
reasonably be expected, after considering the financial condition of all of the
ERISA Affiliates, to result in a Material Adverse Effect.
D. For each Multiemployer Plan as of the most recent valuation
date for which an actuarial report has been received, the potential liability of
Company, its Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
<PAGE> 125
from all Multiemployer Plans, based on information available pursuant to Section
4221(e) of ERISA, would not reasonably be expected, after considering the
financial condition of all of the ERISA Affiliates, to result in a Material
Adverse Effect.
10.12 CERTAIN FEES.
Other than certain fees payable to CSFB or its affiliates, no
broker's or finder's fee or commission will be payable with respect to this
Agreement or any of the transactions contemplated hereby, and the Borrowers
hereby indemnify Lenders against, and agree that they will hold Lenders harmless
from, any claim, demand or liability for any such broker's or finder's fees
alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
10.13 ENVIRONMENTAL PROTECTION.
(a) Except as set forth in SCHEDULE 5.13, (i) Company
and each of its Subsidiaries have been and are in compliance
with all applicable Environmental Laws, (ii) Company and each
of its Subsidiaries have all Environmental Approvals required
to operate their businesses as presently conducted or as
reasonably anticipated to be conducted, all such Environmental
Approvals are in effect, no appeal or other action is pending
to revoke any such Environmental Approval, and Company and
each of its Subsidiaries are in full compliance with all terms
and conditions of such Environmental Approvals, (iii) neither
Company, any of its Subsidiaries nor any of their
Environmental Affiliates has received any communication
(written or oral), whether from a governmental authority,
citizens group, employee or otherwise, that alleges that
Company, any of its Subsidiaries or any of their Environmental
Affiliates are not in full compliance with all Environmental
Laws, and (iv) to the Loan Parties' best knowledge after due
inquiry, there are no circumstances that may prevent or
interfere with such full compliance in the future, except to
the extent any of the circumstances described in the foregoing
clauses (i) through (iv) could not reasonably be expected to
have a Material Adverse Effect.
(b) Except as set forth in SCHEDULE 5.13, and except
for any Environmental Claims which individually or in the
aggregate could not reasonably be expected to have a Material
Adverse Effect,
<PAGE> 126
there is no Environmental Claim pending or threatened against
Company, any of its Subsidiaries or any of their Environmental
Affiliates.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge or
disposal of any Hazardous Materials, that could form the basis
of any Environmental Claims against Company, any of its
Subsidiaries or any of their Environmental Affiliates, which
Environmental Claims, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(d) No Release or Cleanup has occurred at any
property currently or formerly owned or leased by Company or
any of its Subsidiaries that could reasonably be expected to
result in the assertion or creation of a Lien on said property
by any governmental body or agency with respect thereto, nor
has any such assertion of a Lien been made by any governmental
body or agency with respect thereto, except for any such Liens
which, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(e) Company is not aware of any current or pending
Environmental Laws, including Environmental Approvals that are
subject to renewal, that are reasonably likely to require
Company or its Subsidiaries, individually or in the aggregate,
to incur, over the six fiscal years commencing with the year
2000, costs for capital expenditures for the purposes of
maintaining or coming into compliance with said current or
pending Environmental Laws, except for capital expenditures
that could not, individually or in the aggregate, have a
Material Adverse Effect.
10.14 EMPLOYEE MATTERS.
Except as set forth on SCHEDULE 5.14, there are currently no
collective bargaining agreements or Multiemployer Plans covering the employees
of Company or any of its Subsidiaries. There is no strike or work stoppage in
existence or threatened involving Company or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
<PAGE> 127
10.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations
by such Loan Party on any date on which this representation is made, will be,
Solvent.
10.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution
and delivery of the Collateral Documents by each Loan Party which is a party to
such Collateral Documents on any date on which this representation is made,
together with (i) if applicable, the actions to be taken pursuant to subsections
6.8 and 6.9A and (ii) the delivery to the Collateral Agent of any Pledged
Collateral not delivered to Collateral Agent at the time of execution and
delivery of the applicable Collateral Document by such Loan Party are or will
be, as the case may be, effective to create in favor of the Collateral Agent for
the benefit of Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the Collateral covered by such
Collateral Documents, and other actions necessary or desirable to perfect and
maintain the perfection and First Priority status of such Liens have been duly
made or taken and remain in full force and effect or will be duly made or taken
and remain in full force and effect at the time of execution and delivery of
such Collateral Documents by such Loan Party.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by any Loan Party
of the Liens with respect to the Pledged Collateral purported to be created in
favor of the Collateral Agent pursuant to any of the Collateral Documents to
which such Loan Party is a party or (ii) the exercise by the Collateral Agent of
any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except for filings or recordings (x)
contemplated by subsections 5.16A and, if applicable, 6.9A, (y) as may be
required in connection with the disposition of any Collateral, by laws generally
affecting the offering, sale or disposition of property of the same type as the
Collateral and (z) such authorizations, approvals or other actions, filings or
recordings which will have been obtained or made at the time of execution and
delivery of such Collateral Documents by the applicable Loan Party.
C. MARGIN REGULATIONS. Neither (i) the making of any Loan nor
the use of proceeds thereof, nor (ii) the pledge of the Pledged Collateral
pursuant to
<PAGE> 128
the Collateral Documents will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.
D. INFORMATION REGARDING COLLATERAL. All information supplied
to the Collateral Agent by or on behalf of any Loan Party with respect to any of
the Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
10.17 DISCLOSURE.
A. No representation or warranty of any Borrower contained in
any Loan Document or in any other document, certificate or written statement
furnished to any Lender by or on behalf of any Borrower for use in connection
with the transactions contemplated by this Agreement contains any untrue
statement of a material fact or omits to state a material fact (known to
Company, in the case of any document not furnished by any Borrower) necessary in
order to make the statements contained herein or therein, taken as a whole, not
misleading in light of the circumstances in which the same were made; provided
that no representation is made as to projections or pro forma financial
information except as set forth in the next sentence. Any projections and pro
forma financial information contained in such materials are based upon good
faith estimates and assumptions believed by the Borrowers to be reasonable at
the time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There are no facts known to the Borrowers (other than matters of a
general economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
B. No information submitted to Administrative Agent in its due
diligence investigation is known to any Borrower to contain any untrue
statements of material fact, or omit material facts, which untrue statements or
material omissions could reasonably be determined, when taken as a whole, to be
material and adverse to the business, assets, financial position, operations or
results of operations of Target and its Subsidiaries, taken as a whole.
10.18 INSURANCE.
The broker's insurance certificate and Officer's Certificate
delivered to the Joint Lead Arrangers pursuant to subsection 4.1L set forth a
complete and
<PAGE> 129
accurate description of all policies of insurance maintained by Company and its
Subsidiaries as of the Announcement Date and as of the date hereof. The
Borrowers have paid all premiums due on or prior to the Announcement Date and
the date hereof in respect of such policies and all such policies are in full
force and effect.
10.19 PATENTS, TRADEMARKS, ETC.
Company and its Subsidiaries have obtained and hold in full
force and effect all patents, trademarks, servicemarks, trade names, copyrights
and other such rights, free from burdensome restrictions, which are reasonably
necessary for the operation of their businesses as presently conducted. No
material product, process, method, substance, part or other material presently
sold by or employed by Company or any of its Subsidiaries in connection with
such business infringes any patent, trademark, service mark, trade name,
copyright, license or other right owned by any other Person. There is not
pending or overtly threatened any claim or litigation against or affecting
Company or any of its Subsidiaries contesting its right to sell or use any such
product, process, method, substance, part or other material which could be
reasonably likely to have a Material Adverse Effect.
10.20 LICENSES, ETC.
Company and each of its Subsidiaries have obtained and hold in
full force and effect, all material franchises, licenses, permits, certificates,
authorizations, qualifications, easements, rights of way and other rights,
consents and approvals which are reasonably necessary for the operation of their
respective businesses as presently conducted.
10.21 COMPLIANCE WITH LAW.
Except as disclosed on Schedule 5.6, Company and each of its
Subsidiaries is in compliance with all laws, rules, regulations, orders,
judgments, writs and decrees except where such non-compliance, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
10.22 ABSENCE OF UNDISCLOSED LIABILITIES.
Company and each of its Subsidiaries do not have any material
liability or material contingent liability required under GAAP to be reflected
or disclosed, which are not reflected or disclosed, in the balance sheet
described in subsection 6.1, other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial
statements.
10.23 PURPOSE OF LOANS.
<PAGE> 130
The proceeds of the Loans shall be used (i) to refinance the
Indebtedness set forth on SCHEDULE 2.5 hereof (the "SCHEDULED INDEBTEDNESS") in
an amount of approximately $365 million with respect to Target (net of proceeds
from Asset Sales with respect to Target and its Subsidiaries) and approximately
$135 million with respect to Lincoln and its Subsidiaries; (ii) to finance the
Offer, the purchase of Shares in the market, the purchase of Shares pursuant to
the Compulsory Acquisition, and the purchase of outstanding options in respect
of Shares; (iii) to pay fees and expenses in connection with the Acquisition and
Refinancing (and their financing) in an aggregate amount of approximately $150
million; and (iv) for working capital requirements and general corporate
purposes.
10.24 SENIOR INDEBTEDNESS. The Obligations constitute
"Designated Senior Debt" under and as defined in the Bridge Loan Documents.
11 SECTION
COMPANY'S AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, each Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 6.
12.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Each Borrower will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Company will deliver to Administrative Agent
and each of the Lenders:
(i) QUARTERLY FINANCIAL: as soon as available and in
any event within 60 days after the end of each Fiscal Quarter (other
than the fourth Fiscal Quarter in the Fiscal Year), (a) the
consolidated balance sheets of Company and its Subsidiaries and
consolidating balance sheets for each of the following divisions, or
combination of divisions, of Company and its Subsidiaries: (i) the
Howden group and the Specialty engineering business
<PAGE> 131
group, (ii) the ESAB welding business and (iii) Company and its
Subsidiaries immediately prior to the Closing Date, as at the end of
such Fiscal Quarter and the related consolidated statements of
operations, changes in stockholders' equity and cash flows and
consolidating statements of operations of the three divisions referred
to in clauses (i) - (iii) above for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for
the current Fiscal Year, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments, and (b)
beginning with the first Fiscal Quarter ending after the Closing Date,
a statement of operations and any narrative report for Company and its
Subsidiaries as provided to the Board of Directors of Company with
respect to such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, setting
forth in comparative form the corresponding figures for the
corresponding Fiscal Quarter of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal
Quarter, certified by the chief financial officer of Company as
aforesaid;
(ii) YEAR-END FINANCIAL: as soon as available and in
any event within 90 days after the end of each Fiscal Year, (a) the
consolidated balance sheets of Company and its Subsidiaries and
consolidating balance sheets for each of the following divisions of
Company and its Subsidiaries: (i) the Howden group and the Specialty
engineering business group, (ii) the ESAB welding business and (iii)
Company and its Subsidiaries immediately prior to the Closing Date, as
at the end of such Fiscal Year and the related consolidated statements
of operations, changes in stockholders' equity and cash flows and
consolidating statements of operations of Company and its Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form
the corresponding figures for the previous Fiscal Year and the
corresponding figures from the Financial Plan for the Fiscal Year
covered by such financial statements, all in reasonable detail and
certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company
and its Subsidiaries as at the dates
<PAGE> 132
indicated and the results of their operations and their cash flows for
the periods indicated, (b) beginning the first Fiscal Year ending after
the Closing Date, a statement of operations and any narrative report
for Company and its Subsidiaries as provided to the Board of Directors
of Company for such Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial
statements, certified by the chief financial officer of Company as
aforesaid, and (c) in the case of such consolidated financial
statements, a report thereon of Ernst & Young, any other "big four"
accounting firm or any other independent certified public accountants
of recognized national standing selected by Company, which report shall
be unqualified, shall express no doubts about the ability of Company
and its Subsidiaries to continue as a going concern, and shall state
that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Company and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements), and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards;
(iii) OFFICERS' AND COMPLIANCE CERTIFICATES: Together
with each delivery of the consolidated financial statements of Company
and its Subsidiaries pursuant to subdivisions (i) or (ii) above, (a) an
Officers' Certificate of Company stating that the signers have reviewed
the terms of this Agreement and have made, or caused to be made under
their supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting
period covered by such financial statements and that such review has
not disclosed the existence during or at the end of such accounting
period, and that the signers do not have knowledge of the existence as
at the date of such Officers' Certificate, of any condition or event
that constitutes an Event of Default or Potential Event of Default, or,
if any such condition or event existed or exists, specifying the nature
and period of existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and as
at the end of the applicable accounting periods with the restrictions
contained in Section 7;
<PAGE> 133
(iv) RECONCILIATION STATEMENTS: If, as a result of
any change in accounting principles and policies from those used in the
preparation of the audited financial statements most recently delivered
pursuant to subsection 5.3 or this subsection 6.1, the consolidated
financial statements of Company and its Subsidiaries delivered pursuant
to subdivisions (i) or (ii) of this subsection 6.1 will differ in any
material respect from the consolidated financial statements that would
have been delivered pursuant to such subdivisions had no such change in
accounting principles and policies been made, then together with the
first delivery of financial statements pursuant to subdivision (i) or
(ii) of this subsection 6.1 following such change, a written statement
of the chief accounting officer or chief financial officer of Company
setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth
in subsection 7.6) which would have resulted if such financial
statements had been prepared without giving effect to such change;
(v) ACCOUNTANTS' CERTIFICATION: Together with each
delivery of consolidated financial statements of Company and its
Subsidiaries pursuant to subdivision (ii) above, a written statement by
the independent certified public accountants giving the report thereon
(a) stating that their audit examination has included a review of the
terms of this Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with their audit
examination, any condition or event that constitutes an Event of
Default or Potential Event of Default has come to their attention and,
if such a condition or event has come to their attention, specifying
the nature and period of existence thereof; provided that such
accountants shall not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination,
and (c) stating that based on their audit examination nothing has come
to their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant
to subdivision (iv) above is not correct or that the matters set forth
in the Compliance Certificates delivered therewith pursuant to clause
(b) of subdivision (iv) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vi) ACCOUNTANTS' REPORTS: Promptly upon receipt
thereof, copies of the annual letter to management prepared by
Company's independent certified public accountants;
<PAGE> 134
(vii) SEC FILINGS AND PRESS RELEASES: Promptly upon
their becoming available, copies of (a) all financial statements,
reports, notices and proxy statements sent or made available generally
by Company to its security holders or by any Subsidiary of Company to
its security holders other than Company or another Subsidiary of
Company, (b) all regular and periodic reports and all registration
statements (other than on Form S-8 or a similar form) and prospectuses,
if any, filed by Company or any of its Subsidiaries with any securities
exchange or with the SEC or any governmental or private regulatory
authority (other than filings in the ordinary course of business to
maintain Company's licenses and permits), and (c) all press releases
and other statements made available generally by Company or any of its
Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(viii) EVENTS OF DEFAULT, ETC.: Promptly and in any
event within two Business Days after any officer of Company obtains
knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any
Lender has given any notice (other than to Administrative Agent) or
taken any other action with respect to a claimed Event of Default or
Potential Event of Default, (b) that any Person has given any notice to
Company or any of its Subsidiaries or taken any other action with
respect to a claimed default or event or condition of the type referred
to in subsection 8.2, (c) of any condition or event that would be
required to be disclosed in a current report filed by Company with the
SEC on Form 8-K (Items 1, 2, 3, 4 and 6 of such Form as in effect on
the date hereof) if Company or any of its Subsidiaries were required to
file such reports under the Exchange Act, or (d) of the occurrence of
any event or change that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect (including, without
limitation, termination or modification of customer contracts), an
Officers' Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice given or
action taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action Company or any of its Subsidiaries has taken, are taking
and propose to take with respect thereto;
(ix) LITIGATION OR OTHER PROCEEDINGS: Promptly and in
any event within two Business Days after any officer of Company obtains
<PAGE> 135
knowledge of (a) the institution of any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property, license or registration of Company or any
of its Subsidiaries (collectively, "PROCEEDINGS") not previously
disclosed in writing by Company or any of its Subsidiaries to Lenders
or not disclosed in any report referred to in subsection 6.1(viii)
furnished to the Lenders or (b) any material development in any
Proceeding that, in any case:
(1) if adversely determined, could reasonably be
expected to have a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as
a result of, the transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company or any of its Subsidiaries to enable
Lenders and their counsel to evaluate such matters;
(x) ERISA EVENTS: Promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event that would
reasonably be expected to result in a Material Adverse Effect, a
written notice specifying the nature thereof, what action Company or
any of its Subsidiaries or any of their respective ERISA Affiliates has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto;
(xi) ERISA NOTICES: With reasonable promptness,
copies of (a) all notices received by Company or any of its
Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event that would
reasonably be expected to result in a Material Adverse Effect; and (b)
copies of such other documents or governmental reports or filings
relating to any Pension Plan as Administrative Agent shall reasonably
request;
(xii) FINANCIAL PLANS: As soon as practicable and in
any event no later than 45 days after the beginning of each Fiscal
Year, a consolidated
<PAGE> 136
plan and financial forecast for such Fiscal Year (the "FINANCIAL
PLAN"), the form of which is attached hereto as EXHIBIT XVIII,
including (a) forecasted consolidated balance sheet as of the last day
of such Fiscal Year and forecasted consolidated statement of operations
and a forecasted consolidated statement of cash flows of Company and
its Subsidiaries for such Fiscal Year, accompanied by a written
explanation of the assumptions on which such forecasts are based,
together with an Officers' Certificate prepared by the chief financial
officer of Company to the effect that such financial forecasts and
assumptions are reasonable and represent Company's good faith estimate
of its financial requirements and performance for such Fiscal Year (b)
forecasted consolidated statements of operations and cash flows of
Company and its Subsidiaries for each Fiscal Quarter of such Fiscal
Year, accompanied by a written explanation of the assumptions on which
such forecasts are based, together with an Officers' Certificate
prepared by the chief financial officer of Company to the effect that
such financial forecasts and assumptions are reasonable and represent
Company's good faith estimate of its future financial requirements and
performance and (c) such other information and projections as any
Lender through Administrative Agent may reasonably request;
(xiii) INSURANCE: As soon as practicable and in any
event by the last day of each Fiscal Year, a report in form and
substance satisfactory to Administrative Agent outlining all material
insurance coverage maintained as of the date of such report by Company
and its Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(xiv) BOARD OF DIRECTORS: With reasonable promptness,
written notice of any change in the Board of Directors of Company;
(xv) NEW SUBSIDIARIES: Promptly upon any Person
becoming a Subsidiary of Company or any of its Subsidiaries, a written
notice setting forth with respect to such Person (a) the date on which
such Person became a Subsidiary of Company or any of its Subsidiaries
and (b) all of the data required to be set forth in SCHEDULE 5.1
annexed hereto with respect to all Subsidiaries of the Company (it
being understood that such written notice shall be deemed to supplement
SCHEDULE 5.1 annexed hereto for all purposes of this Agreement);
<PAGE> 137
(xvi) LICENSING, REGISTRATION AND ACCREDITATION: With
reasonable promptness, information regarding proceedings regarding any
licensing, registration or accreditation of Company or any of its
Subsidiaries by or with any Governmental Authority, if failure to
obtain or maintain such license, registration or accreditation could
reasonably be expected to have a Material Adverse Effect;
(xvii) ENVIRONMENTAL. Promptly and in any event
within two Business Days after the existence of any of the following
conditions becomes known to any officer of Company, an Officers'
Certificate of Company specifying in detail the nature of such
condition and Company's or the applicable Subsidiary's proposed
response thereto: (i) the receipt by any Loan Party of any
communication (written or oral), whether from a governmental authority,
citizens group, employee or otherwise, that alleges that Company or any
of its Subsidiaries or an Environmental Affiliate is not in compliance
with applicable Environmental Laws but only to the extent such
non-compliance could reasonably be expected to have a Material Adverse
Effect, or (ii) Company or any of its Subsidiaries shall obtain actual
knowledge that there exists any Environmental Claim pending or
threatened against Company or any of its Subsidiaries or Environmental
Affiliates, but only to the extent such Environmental Claim could
reasonably be expected to have a Material Adverse Effect; and
(xviii) OTHER INFORMATION: With reasonable
promptness, such other information and data with respect to Company or
any of its Subsidiaries as from time to time may be reasonably
requested by any Lender through Administrative Agent.
12.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect its corporate existence and all rights and franchises material
to its business; provided, however, that neither Company nor any of its
Subsidiaries shall be required to preserve any such right or franchise if the
Board of Directors of Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Company or such Subsidiary, as the case may be, and that the loss thereof could
not reasonably be expected to have a Material Adverse Effect.
<PAGE> 138
12.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to,
pay all Taxes imposed upon it or any of its properties or assets or in respect
of any of its income, businesses or franchises before any penalty accrues
thereon, and all claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided that no such
Tax or claim need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as (1)
adequate reserves or other appropriate provisions have been established with
respect thereto, in conformity with GAAP and (2) in the case of a Tax or claim
which has or may become a Lien against any of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such Tax or claim.
B. Company will not, nor will Company permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person (other than Company or any of their Subsidiaries).
12.4 MAINTENANCE OF PROPERTIES; INSURANCE.
A. MAINTENANCE OF PROPERTIES. Company will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries and
from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.
B. INSURANCE. Company will maintain or cause to be maintained,
with financially sound and reputable insurers, such public liability insurance,
third party property damage insurance, business interruption insurance and
casualty insurance with respect to liabilities, losses or damage in respect of
the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry; provided that Company will
maintain or cause to be maintained, with financially sound and reputable
insurers, the insurance described in the Officer's
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Certificate of the Company delivered pursuant to subsection 4.1L at no less than
the levels as of the Announcement Date.
12.5 INSPECTION RIGHTS; LENDER MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of
its Subsidiaries to, permit any authorized representatives designated by
Administrative Agent (on its behalf or on behalf of any Lender), or if an Event
of Default has occurred and is continuing, the Lenders, to visit and inspect any
of the properties of Company or of any of its Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided that Company may, if it so chooses,
be present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. LENDER MEETING. The Borrowers will, upon the request of
Administrative Agent or Requisite Lenders, participate in a meeting of Agents
and Lenders once during each Fiscal Year to be held at Company's corporate
offices (or at such other location as may be agreed to by the Borrowers and
Administrative Agent) at such time as may be agreed to by the Borrowers and
Administrative Agent to discuss topics including, but not limited to, the
current Fiscal Year's Financial Plan and the outlook and projections for the
Borrowers for the next two Fiscal Years.
12.6 COMPLIANCE WITH LAWS, ETC.
A. COMPLIANCE. Company shall comply and operate in compliance,
and shall cause each of its Subsidiaries to comply and to operate in compliance,
with the requirements of all applicable laws, rules, statutes, decrees,
regulations and orders of any Governmental Authority (including Environmental
Laws) at all times, noncompliance with which could reasonably be expected to
cause, individually or in the aggregate, a Material Adverse Effect.
B. LICENSES. Company shall, and shall cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditation, easements, rights
of way and other rights, consents and approvals except where the failure to so
preserve any of the foregoing (other than existence) could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect
and to the extent not obtained prior to the
<PAGE> 140
Announcement Date or the date hereof, Company and its Subsidiaries will obtain
all patents, trademarks, servicemarks, tradenames, copyrights, franchises,
licenses, permits, certificates, authorizations, qualifications, accreditation,
easements, rights of way and other rights, consents and approvals required to
conduct the businesses conducted by Target and its Subsidiaries at the times
required by applicable law, except those that the failure to obtain which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
12.7 ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL
LAWS.
Except as could not reasonably be expected to cause,
individually or in the aggregate, a Material Adverse Effect, Company shall
promptly take, and shall use best efforts to cause each of its Subsidiaries
promptly to take, any and all actions necessary to (i) cure any violation of
applicable Environmental Laws by Company or its Subsidiaries, (ii) promptly
Cleanup any Releases of Hazardous Materials at the properties owned, used or
operated by the Company or any of its Subsidiaries; and (iii) make an
appropriate response to any Environmental Claim against Company or any of its
Subsidiaries and discharge any obligations it may have to any Person thereunder.
12.8 EXECUTION OF LOAN DOCUMENTS BY CERTAIN SUBSIDIARIES AND
FUTURE SUBSIDIARIES.
A. EXECUTION OF SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS.
In the event that any Person becomes a Subsidiary of Company after the date
hereof, Company will promptly notify Agents of that fact and (subject as
follows) cause such Subsidiary to execute and deliver, at the appropriate time
for such execution and delivery, to Collateral Agent the documents required in
clauses (b), (c) and (d) of subsection 2.9, the Subsidiary Guaranty, the Pledge
Agreement and any other Collateral Documents then required pursuant to
subsection 6.9A hereof (in each case adapted appropriately for any Foreign
Subsidiary), and to take all such further actions and execute all such further
documents and instruments as may be necessary or, in the opinion of Collateral
Agent, desirable to create in favor of Collateral Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of the property of
such Subsidiary described in the applicable forms of Collateral Documents (to
the extent required by subsection 6.9A). All obligations set forth in this
subsection 6.8A shall be required to the extent permitted by applicable law and
in accordance with all applicable legal requirements (except where the Person
becoming a Subsidiary after the date hereof shall be a Foreign Subsidiary, in
which case the decision as to whether such Foreign Subsidiary shall comply with
this subsection 6.8A shall also be determined based on an opinion of counsel to
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Company in form and substance satisfactory to Company and Administrative Agent
that compliance with the foregoing requirements will not have an adverse U.S.
income tax effect on Company) and, if any legal requirement would prevent the
satisfaction of any such obligation, Company will, and will cause its
Subsidiaries to, use their commercially reasonable efforts to satisfy any such
requirement. In addition, where the compliance with this subsection 6.8A in
respect of a Foreign Subsidiary would involve excessive costs for Company or
such Foreign Subsidiary, Administrative Agent shall consult with Company as to
whether such compliance is required in all respects.
B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC.
Substantially concurrent with the execution and delivery by a Subsidiary of the
Loan Documents described under subsection 6.8A, Company shall deliver to
Administrative Agent, together with such Loan Documents, (i) certified copies of
such Subsidiary's Certificate or Articles of Incorporation or comparable
organizational document, together with a good standing certificate from the
Secretary of State of the jurisdiction of its organization and, to the extent
generally available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the appropriate taxing
authority of such jurisdiction, each to be dated a recent date prior to their
delivery to Administrative Agent, (ii) a copy of such Subsidiary's Bylaws or
comparable organizational documents, certified by its corporate secretary or an
assistant secretary as of a recent date prior to their delivery to
Administrative Agent, (iii) a certificate executed by the secretary or an
assistant secretary of such Subsidiary as to (a) the fact that the attached
resolutions of the Board of Directors of such Subsidiary approving and
authorizing the execution, delivery and performance of such Loan Documents are
in full force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary executing such Loan
Documents, and (iv) a favorable opinion of counsel to such Subsidiary, in form
and substance satisfactory to Administrative Agent and its counsel, as to (a)
the due organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Loan Documents,
(c) the enforceability of such Loan Documents against such Subsidiary, (d) such
other matters (including matters relating to the creation and perfection of
Liens in any Collateral pursuant to such Loan Documents) as Administrative Agent
may reasonably request, all of the foregoing to be reasonably satisfactory in
form and substance to Administrative Agent and its counsel; provided, however,
that nothing in this subsection shall require documents which are duplicative of
documents delivered pursuant to subsection 2.9.
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12.9 CERTAIN MATTERS REGARDING COLLATERAL.
A. ADDITIONAL COLLATERAL. Within two (2) Business Days
following the Closing Date, and from time to time thereafter, Company shall
grant or cause to be granted to the Collateral Agent on behalf of Lenders a
valid and perfected First Priority Lien on substantially all tangible and
intangible material assets of Company and its Subsidiaries (other than Target
and its Subsidiaries) pursuant to the applicable Collateral Documents (adapted
appropriately for any Foreign Subsidiaries). Such Liens shall secure the
Domestic Obligations and/or the Foreign Obligations to the extent and in the
manner provided in the applicable Collateral Document, it being understood and
agreed that the intent of the parties hereto in respect of causing Foreign
Subsidiaries (other than Target and its Subsidiaries) to comply with this
subsection 6.9A is to avoid any adverse Tax consequence to the Company as a
result of such compliance by any such Foreign Subsidiaries, with the
determination as to whether any such adverse Tax consequences would result from
such transaction to be based on an opinion of counsel to Company in form and
substance satisfactory to Company and Administrative Agent. In addition, where
the compliance with this subsection 6.9A in respect of a Foreign Subsidiary
shall involve excessive costs for Company or such Foreign Subsidiary,
Administrative Agent shall consult with Company as to whether such compliance is
required in all respects.
At such time, Company and its Subsidiaries (other than Target
and its Subsidiaries) shall, subject to the previous paragraph, execute and
deliver to Administrative Agent a Security Agreement and Mortgages in respect of
Company and its Subsidiaries granting First Priority Liens in all Collateral
purported to be covered thereby (but so that in respect of Foreign Subsidiaries,
no Mortgage shall be requested in respect of real property which is not of
material value or which would result in material Taxes being paid by the
relevant Foreign Subsidiary), which Security Agreement and Mortgages shall be in
full force and effect (and all consents of third parties required for the
effectiveness or enforceability of the Liens created by such Security Agreement
and Mortgages, including the assignment of contract rights, shall be obtained),
and each document (including each UCC financing statement and each filing with
respect to intellectual property owned by Company and such Subsidiaries party to
such Security Agreement required by law or reasonably requested by Collateral
Agent to be filed, registered or
<PAGE> 143
recorded in order to create in favor of Collateral Agent for the benefit of
Lenders a valid, legal and perfected First Priority Lien on the Collateral
subject to such Security Agreement and Mortgages (subject to any Lien expressly
permitted thereby) shall be so filed, registered or recorded and evidence
thereof delivered to Agents. Agents shall receive consents from each person
required under the terms of any agreement to which Company and its Subsidiaries
(other than Target and its Subsidiaries) shall be party to consent to the
assignment pursuant to the Security Agreement of the rights of Company and such
Subsidiaries under such agreement in order for such assignment to be effective,
which consents shall be executed and delivered in form and substance
satisfactory to Agents. With respect to each Mortgage, Administrative Agent
shall have received with respect to the Mortgaged Property covered thereby (i) a
report as to the compliance of such Mortgaged Property with all Environmental
Laws, except to the extent any noncompliance could not reasonably be expected to
have a Material Adverse Effect, (ii) a recent survey of such Mortgaged Property
in form and substance reasonably satisfactory to the Administrative Agent and
(iii) title insurance in form and substance and from a title issuer reasonably
satisfactory to the Administrative Agent. Agents may request such other
certificates, instruments and opinions as Agents may reasonably believe
necessary to confirm the Liens required to be granted under this subsection
6.9A. Administrative Agent shall also have received a copy of, or a certificate
as to coverage under, the insurance policies required by applicable provisions
of the Collateral Documents, each of which shall be endorsed or otherwise
amended to include a "standard" or "New York" lender's loss payable endorsement
(or an appropriate foreign equivalent) and to name Collateral Agent as
additional insured, in form and substance satisfactory to Agents.
Notwithstanding the foregoing, such Security Agreement and Mortgages will not
encumber any property or assets of a Foreign Subsidiary if the creation of a
Lien on such property or assets could result in adverse Tax consequences to
Company (the determination of same to be made in the manner described in the
immediately preceding paragraph).
B. RELEASE OF COLLATERAL. Any Collateral with respect to which
a Lien shall have been granted pursuant to subsection 6.9A shall be released
pursuant to the terms of the applicable Collateral Document.
12.10 BOOKS, RECORDS AND INSPECTIONS.
Company shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all requirements of law shall be made of all
dealings and transactions in relation to its business and activities.
12.11 PERFORMANCE OF OBLIGATIONS.
<PAGE> 144
Company shall, and shall cause each of its Subsidiaries to,
perform all of its obligations under the terms of each mortgage, indenture,
security agreement, debt instrument, lease, undertaking and contract by which it
or any of its properties is bound or to which it is a party if the failure to so
perform, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
12.12 FURTHER ASSURANCES.
At any time or from time to time upon the request of
Administrative Agent or Collateral Agent, Company will, at its expense, promptly
execute, acknowledge and deliver such further documents and do such other acts
and things as Administrative Agent or Collateral Agent may reasonably request in
order to effect fully the purposes of the Loan Documents and to provide for
payment of the Obligations in accordance with the terms of this Agreement, the
Notes and the other Loan Documents. In furtherance and not in limitation of the
foregoing, Company shall take, and cause each of its Subsidiaries to take, such
actions as Administrative Agent or Collateral Agent may reasonably request from
time to time (including, without limitation, the execution and delivery of
guaranties, security agreements, pledge agreements, mortgages, deeds of trust,
landlord's consents and estoppels, stock powers, financing statements and other
documents, the delivery of any UCC searches not received by Administrative Agent
prior to Announcement Date, the filing or recording of any of the foregoing,
title insurance with respect to any of the foregoing that relates to an interest
in real property, and the delivery of stock certificates and other collateral
with respect to which perfection is obtained by possession) to ensure that the
Obligations are guarantied by the Guarantors and are secured by substantially
all of the assets of Company and its Subsidiaries. Notwithstanding the foregoing
or anything else in this Agreement or any other Loan Document to the contrary,
(i) no Foreign Subsidiary (other than Newco) shall enter into, or be required to
enter into, a Subsidiary Guaranty or any other guaranty or Collateral Document
(or, in any case, grant any Lien) in favor of the Collateral Agent or any
Lenders in respect of any Company Obligations or any Domestic Obligations if
doing so would result in adverse Tax consequences to Company, with the
determination of same to be made based upon an opinion of counsel to Company in
form and substance satisfactory to Company and Administrative Agent, and (ii)
none of Target or any of its Subsidiaries shall enter into, or be required to
enter into, a Subsidiary Guaranty or any other guaranty or Collateral Document
(or, in any case, grant any Lien) in favor of the Collateral Agent or any
Lenders in respect of any Company Obligations, any Domestic Obligations or any
Foreign Obligations (other than Foreign Obligations of Target and its
Subsidiaries).
<PAGE> 145
12.13 USE OF PROCEEDS.
All proceeds of each Loan will be used by Company and its
Subsidiaries only in accordance with the provisions of subsection 2.5 and no
part of such proceeds shall be used to purchase or carry Margin Stock.
12.14 MAINTENANCE OF CORPORATE SEPARATENESS.
Company will, and will cause each of its Subsidiaries to,
satisfy customary corporate formalities, including the holding of regular board
of directors' and shareholders' meetings or action by directors or shareholders
without a meeting and the maintenance of corporate offices and records. Other
than pursuant to any Company Guaranty or Subsidiary Guaranty entered into
pursuant to this Agreement, neither Company nor any of its Subsidiaries shall
make any payment to a creditor of any other Subsidiary in respect of any
liability of any such Subsidiary, and no bank account of any Subsidiary shall be
commingled with any bank account of Company or any other Subsidiary. Any
financial statements distributed to any creditors of any Subsidiary shall
clearly establish or indicate the corporate separateness of such Subsidiary from
Company and its other Subsidiaries. Finally, neither Company nor any of its
Subsidiaries shall take any action, or conduct its affairs in a manner, which is
likely to result in the corporate existence of Company or any of its
Subsidiaries being ignored, or in the assets and liabilities of Company or any
of its Subsidiaries being substantively consolidated with those of any other
such Person in a bankruptcy, reorganization or other insolvency proceeding.
12.15 COMPLIANCE WITH MATERIAL CONTRACTS.
Company shall, and shall cause each of its Subsidiaries to,
promptly and fully comply with all Material Contracts to which any one or more
of them is a party.
12.16 SYNDICATION PROCESS.
After the Announcement Date, Company will cooperate in all
such respects as may be requested by Joint Lead Arrangers in connection with the
syndication of the Commitments under this Agreement, including the provision of
information for inclusion in written materials furnished to respective syndicate
members and the participation by those Persons eligible to sign Officers'
Certificates on behalf of Company in meetings with respective syndicate members.
The Company agrees to enter into such amendments hereto as may be requested by
the Joint Lead Arrangers in the event the Joint Lead Arrangers exercise their
right to
<PAGE> 146
change any of the terms hereof to the extent and in the manner provided
in the Fee Letter.
12.17 OFFER.
(i) Promptly upon the occurrence of the Offer
Termination Date, Company will give notice to Administrative Agent (who
shall notify the Lenders) that the same has occurred.
(ii) Promptly upon satisfaction of the condition
specified in Section 429 (1) or (2) of the Companies Act for giving a
notice under that Section in respect of any Shares and the Offer
becoming or being declared unconditional in all respects, Company shall
if it is entitled to do so cause Newco to (a) implement the procedures
set out in Section 429 et seq. of the Companies Act to acquire any
outstanding Shares and (b) use all commercially reasonable endeavors to
acquire 100 per cent of the Shares as promptly as practicable.
(iii) Company and Newco covenant and agree that
without the prior written agreement of Administrative Agent neither
Company nor Newco will (a) issue or cause to be issued (or permit any
other Affiliate of Company to issue) any press release or other public
statement, the relevant portion of the text of which has not been
previously approved by Administrative Agent (which such approval shall
not be unreasonably withheld or delayed), which makes reference to this
Agreement or to some or all of the Lenders unless the public statement
is required by applicable law, the City Code or any stock exchange (in
which case Company shall notify Administrative Agent and the Lenders as
soon as practicable upon becoming aware that the public statement is
required) (provided that Administrative Agent and the Lenders
acknowledge that, pursuant to the City Code, (x) a summary of the
principal terms of this Agreement will be disclosed in the Offer
Document, and (y) this Agreement will be available for public
inspection while the Offer remains open for acceptance) or (b) take or
permit to be taken any step as a result of which the offer price stated
in the Offer Document is, or may be required to be, increased beyond
the level agreed between Company and Joint Lead Arrangers from time to
time; or
(iv) Each of Company and Newco covenants and agrees
that, in respect of the Offer, it will comply with the City Code
(subject to any
<PAGE> 147
applicable waivers by the Panel), the Financial Services Act 1986, the
Companies Act and all other applicable laws.
(v) Unless to do so would be a breach of any other
provision of this subsection 6.17, Newco covenants and agrees that it
will keep Administrative Agent informed as to the status and progress
of the Offer and, in particular, will from time to time and promptly on
request give to Administrative Agent reasonable details as to the
current level of acceptances of the Offer (including a copy of every
certificate concerning the level of acceptances delivered by the
receiving banker in respect of the Offer to Newco, Company, or their
respective advisers pursuant to the City Code) and such other matters
relevant to the Offer as Administrative Agent may reasonably request.
12.18 REFINANCING. Company shall use, and shall cause its
Subsidiaries and Target and its Subsidiaries to use, commercially reasonable
efforts to refinance the Scheduled Indebtedness of Target and its Subsidiaries
as promptly as practicable but in no event later than the end of the Clean-up
Period. In any event, Company shall deliver to the Lenders its formal plan of
Refinancing with respect to the Indebtedness of Target and its Subsidiaries
within thirty (30) days following the Closing Date, after which time the
Requisite Lenders shall have fourteen (14) days to approve such plan of
Refinancing. If such plan is not approved by the Requisite Lenders, a revised
plan addressing the concerns of the Requisite Lenders must continue to be
resubmitted as promptly as practicable until such time as the approval of the
Requisite Lenders has been received and, in any event, within such time period
to allow for the Refinancing to take place within the Clean-up Period.
12.19 RESTRUCTURING. If any Restructuring shall be undertaken
by Company, Company shall use, and shall cause its Subsidiaries and Target and
its Subsidiaries to use, commercially reasonable efforts to complete such
Restructuring as promptly as practicable after the Closing Date; provided, that,
if a Restructuring is undertaken, Company shall deliver to the Lenders its
formal plan of Restructuring within the Clean-up Period, after which time the
Required Lenders shall have fourteen (14) days to approve such plan of
Restructuring. If such plan is not approved by the Requisite Lenders, a revised
plan addressing the concerns of the Requisite Lenders must be resubmitted as
promptly as practicable until such time as the approval of the Requisite Lenders
has been received and, in any event, within such time period to allow for the
Restructuring to take place as promptly as practicable. If any Restructuring
shall be undertaken by Company, Company shall complete the Restructuring in
accordance with the plan of Restructuring prepared by
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Company in all material respects and any amendment or modification of the
material aspects of such plan shall require the approval of the Requisite
Lenders (which approval shall not be unreasonably withheld or delayed).
12.20 RATINGS PROCESS.
In the event the initial Rating is not received prior to the
Announcement Date, Company shall use commercially reasonable efforts to obtain a
Rating as promptly as practicable and shall cooperate to the fullest extent
possible as may be reasonably requested by the Joint Lead Arrangers in
connection with the process of obtaining such Rating, including the provision of
information for inclusion in written materials furnished to S&P and Moody's and
the participation by officers of Company in meetings with S&P and Moody's.
12.21 FINANCIAL ASSISTANCE.
Any Subsidiaries of the Company to which Section 151 et seq.
Companies Act applies shall at all times comply with the provisions thereof
(including, where appropriate, by following the Whitewash Procedure).
12.22 INTERCOMPANY LOANS.
In connection with any Intercompany Loan made by Newco to
Target, Company and Newco shall cause Target to (i) grant to Newco a valid and
perfected First Priority Lien on substantially all tangible and intangible
assets of Target pursuant to applicable documentation and (ii) promptly execute,
deliver and acknowledge such further documents and do such other acts and things
as reasonably requested by the Administrative Agent to fully effect such
security interest.
12.23 HEDGING.
Within ninety (90) days after the Closing Date, Borrowers
shall enter into and shall maintain in full force and effect arrangements which
hedge interest rate exposure with respect to an amount equal to no less than
$450,000,000 either through one or more Hedging Agreements or the issuance of
the Takeout Debt. Each Hedging Agreement shall be in form and substance, and
with counterparties acceptable to, the Joint Lead Arrangers.
13 SECTION
<PAGE> 149
COMPANY'S NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any of the
Commitments hereunder shall remain in effect and until payment in full of all of
the Loans and other Obligations and the cancellation or expiration of all
Letters of Credit, unless Requisite Lenders shall otherwise give prior written
consent, each Borrower shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 7.
14.1 INDEBTEDNESS.
Company shall not, nor shall it permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and its Subsidiaries may become and
remain liable with respect to the Obligations;
(ii) Company may become and remain liable with
respect to the Bridge Loans;
(iii) Company may become and remain liable with
respect to the Takeout Debt; provided that (A) the terms and conditions
of such Takeout Debt and the related Takeout Debt Documents relating to
the interest rate, fees, maturity (provided such Indebtedness shall not
mature or have . mandatory prepayments or sinking fund provisions prior
to the date which is ten years after the Closing Date), redemption,
covenants, collateral, guarantees, events of default and remedies shall
be reasonably satisfactory in all respects to the Joint Lead Arrangers
and (B) the proceeds therefrom are applied to pay fees and expenses of
issuance of such Takeout Debt and to refinance or replace (whether
before or after the Closing Date) the Bridge Facility and, to the
extent of any such proceeds in respect of Takeout Debt in excess of the
fees and expenses of issuance paid with such proceeds and the principal
amount of Bridge Loans so refinanced or replaced, to prepay Loans as
provided in subsection 2.4B(iii).
(iv) Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations permitted by
subsection 7.4 and, upon any matured obligations actually arising
pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
<PAGE> 150
(v) Company and its Subsidiaries may become and
remain liable with respect to Indebtedness in respect of Capital Leases
and other purchase money Indebtedness, in each case incurred to finance
Consolidated Capital Expenditures permitted under subsection 7.8, not
in excess of $30,000,000 in the aggregate at any one time outstanding;
provided that any such Indebtedness shall not exceed the purchase price
or the fair market value of the asset so financed;
(vi) Company may become and remain liable with
respect to Indebtedness to any of its Subsidiaries, (x) any Wholly
Owned Subsidiary Guarantor that is a Domestic Subsidiary may become and
remain liable with respect to Indebtedness to Company or any other
Wholly Owned Subsidiary Guarantor that is a Domestic Subsidiary, (y)
any non-Wholly Owned Subsidiary Guarantor that is a Domestic Subsidiary
may become and remain liable with respect to Indebtedness of any other
non-Wholly Owned Subsidiary Guarantor that is a Domestic Subsidiary,
and (z) any Subsidiary of Company which is not a Subsidiary Guarantor
may become and remain liable with respect to Indebtedness to any other
Subsidiary of Company which is not a Subsidiary Guarantor, provided
that, in each case, (a) all such intercompany Indebtedness shall be
evidenced by promissory notes which (other than in the case of any such
promissory notes issued to Subsidiaries which are not Subsidiary
Guarantors) shall have been pledged to Collateral Agent pursuant to the
Collateral Documents, (b) all such intercompany Indebtedness owed by
Company to any of its respective Subsidiaries shall be unsecured and
subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement that in any such case, (x)
include provisions as to waiver of any subrogation rights until after
the Obligations have been paid in full and (y) are reasonably
satisfactory to Administrative Agent and (c) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Company or to any of its
Subsidiaries for whose benefit such payment is made;
(vii) Company and its Subsidiaries, as applicable,
may remain liable with respect to Indebtedness under facilities
described in SCHEDULE 7.1 annexed hereto and extensions, renewals, and
replacement of any such Indebtedness that do not increase the
outstanding principal amount
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thereof or result in an earlier maturity date or decreased weighted
average life thereof; provided, however, that if collateral
arrangements required pursuant to this Agreement and the Collateral
Documents with respect to the tangible and intangible assets, including
real property, of the applicable borrower of such existing Indebtedness
are not reasonably satisfactory to the Requisite Lenders as a result of
any existing Liens securing such Indebtedness or limitations on Liens
under the terms of such Indebtedness, the underlying Indebtedness must
be repaid in full as promptly as practicable;
(viii) Indebtedness of any Person that becomes a
Subsidiary after the date hereof, provided that (A) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created
in contemplation of or in connection with such Person becoming a
Subsidiary and (B) the acquisition in which such Person becomes a
subsidiary is a Permitted Acquisition;
(ix) Company may become and remain liable with
respect to senior subordinated Indebtedness other than the Bridge Loans
in the form of debt securities in an aggregate principal amount not to
exceed $200,000,000 at any time outstanding, provided, however, that
the proceeds of such Indebtedness shall be applied in the manner set
forth in subsection 2.4B(iii)(c), provided, further, such Indebtedness
does not mature or have mandatory prepayments or sinking fund
provisions prior to the date which is ten years after the Closing Date;
provided, however, that any such Indebtedness does not have covenants
requiring the maintenance of specified financial ratios and otherwise
has covenants no more restrictive than those set forth in this
Agreement or in the Takeout Debt as previously approved by the Joint
Lead Arrangers (other than a provision requiring redemption of such
Indebtedness in the event of a change of control of Company
substantially the same as contemplated by subsection 8.11 hereof);
(x) Foreign Subsidiaries may become and remain liable
with respect to Foreign Subsidiary Financings in an aggregate principal
amount outstanding at any time not to exceed at any time $35,000,000
(or the equivalent thereof in any foreign currency; provided, however,
that at no time shall the aggregate outstanding amounts permitted
pursuant to this subsection 7.1(x) and subsection 7.1(xii) exceed
$50,000,000);
<PAGE> 152
(xi) any Scheduled Indebtedness listed on Schedule
2.5 until such time as such Indebtedness is required to be repaid under
subsection 6.18;
(xii) any Borrower and its Subsidiaries may become
and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $25,000,000 at any time outstanding
provided, however, that at no time shall the aggregate outstanding
amounts permitted pursuant to subsection 7.1(x) and this subsection
7.1(xii) exceed $50,000,000;
(xiii) Company and its Subsidiaries may become and
remain liable with respect to any Investments permitted by 7.3; and
(xiv) the Borrowers may become and remain liable with
respect to Indebtedness outstanding under the Hedging Agreements.
14.2 PROHIBITION ON LIENS.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist, directly or indirectly, any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or
accounts receivable) of any Borrower or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file, or
permit to remain in effect, any financing statement or other similar notice of
any Lien with respect to any such property, asset, income or profits under the
UCC of any state or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral
Documents;
(iii) Liens described in SCHEDULE 7.2 annexed hereto;
provided that such Liens shall secure only those obligations secured on
the date hereof and extensions, renewals, and replacements thereof that
do not increase the outstanding principal amount thereof;
(iv) Any Lien existing on any property or asset prior
to the acquisition thereof by Company or any
<PAGE> 153
of its Subsidiaries or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary, provided that (A) such Lien is not created
in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, (B) such Lien shall not apply to any
other property or assets of Company or any of its Subsidiaries and (C)
such Lien shall secure only those obligations that it secures on the
date of such acquisition or the date such Person becomes a Subsidiary,
as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired,
constructed or improved by any Borrower or any Subsidiary, provided
that (A) such security interests secure Indebtedness permitted by
subsection 7.1(v), (B) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (C)
the Indebtedness secured thereby does not exceed 75% (100% of the
Indebtedness if in the form of a Capital Lease) of the cost of
acquiring, constructing or improving such fixed or capital assets and
(D) such security interests shall not apply to any other property or
assets of any Borrower or any Subsidiary; and
(vi) Other Liens securing Indebtedness in an
aggregate amount not to exceed $15,000,000 at any time outstanding.
14.3 INVESTMENTS; JOINT VENTURES.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Wholly Owned Subsidiary
Guarantors may make and own Investments in each other and Investments
in other Subsidiaries in connection with the Refinancing and other
Subsidiaries of the Company may make and own Investments in the Company
or any Wholly Owned Subsidiary Guarantor;
<PAGE> 154
(iii) Company and its Subsidiaries may make
Consolidated Capital Expenditures permitted by subsection 7.8;
(iv) Company and its Subsidiaries may continue to own
the Investments owned by them and described in SCHEDULE 7.3 annexed
hereto and extensions, renewals and replacements of any such
Investments that do not increase the amount thereof;
(v) Company and its Subsidiaries may own promissory
notes given in payment of the purchase price of assets purchased from
Company and its Subsidiaries as permitted by subsection 7.7;
(vi) Company and Wholly Owned Subsidiary Guarantors
may make Permitted Acquisitions permitted by subsection 7.7(v); and
(vii) Company and its Subsidiaries may make and own
other Investments in an aggregate amount not to exceed at any time
$25,000,000.
14.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Company may become and remain liable with respect
to the Company Guaranty and Subsidiaries of Company may become and
remain liable with respect to the Subsidiary Guaranty;
(ii) Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of
Letters of Credit and Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of
other letters of credit in an aggregate amount not to exceed at any
time $15,000,000;
(iii) Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment obligations
incurred in connection with Asset Sales or other sales of assets
permitted by subsection 7.7;
<PAGE> 155
(iv) Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations under guarantees
in the ordinary course of business of obligations to suppliers,
customers, franchisees and licensees of Company and its Subsidiaries;
(v) Company and its Subsidiaries may become and
remain liable with respect to Contingent Obligations in respect of any
Indebtedness of Company or any of its Subsidiaries permitted by
subsection 7.1;
(vi) Company and its Subsidiaries, as applicable, may
remain liable with respect to Contingent Obligations described in
SCHEDULE 7.4 annexed hereto and extensions, renewals and replacements
of any such Contingent Obligations that do not increase the amount
thereof; and
(vii) Company and its Subsidiaries may become and
remain liable with respect to other Contingent Obligations; provided
that the maximum aggregate liability, contingent or otherwise, of
Company and its Subsidiaries in respect of all such Contingent
Obligations shall at no time exceed $15,000,000.
14.5 RESTRICTED JUNIOR PAYMENTS.
Except as set forth on Schedule 7.5 hereto, the Borrowers
shall not, and shall not permit any of their Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment at any time on or prior to the date on which the Company's Rating
is Investment Grade; provided, however the Company may make any payment of
regularly scheduled interest and principal payments as and when due in respect
of any Indebtedness (and refinancings and repayments of Bridge Loans pursuant to
the following proviso), other than payments in respect of any Alternate
Financing prohibited by the subordination provisions thereof; PROVIDED that any
payment of principal in respect of any Alternate Financing shall not be
permitted, other than pursuant to refinancings or repayments, as the case may
be, of Bridge Loans with (A) Takeout Debt or (B) the proceeds of any Permitted
Bridge Equity Financing; PROVIDED FURTHER, that no Potential Event of Default or
Event of Default exists at the time of such refinancing or repayment.
14.6 FINANCIAL COVENANTS.
<PAGE> 156
A. MINIMUM INTEREST COVERAGE RATIO. The Borrowers shall not
permit the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest
Expense for any Calculation Period to be less than the correlative
ratio indicated below for the date on which such period ends:
--------------------------------------------------------------
END OF CALCULATION MINIMUM INTEREST
PERIOD COVERAGE RATIO
--------------------------------------------------------------
12/31/2000 - 3/31/2001 2.00 : 1.00
--------------------------------------------------------------
4/1/2001 - 9/30/2001 2.25 : 1.00
--------------------------------------------------------------
10/1/2001 - 3/31/2002 2.50 : 1.00
--------------------------------------------------------------
4/1/2002 - 9/30/2002 2.75 : 1.00
--------------------------------------------------------------
10/1/2002 - 3/31/2003 3.00 : 1.00
--------------------------------------------------------------
4/1/2003 - 9/30/2003 3.25 : 1.00
--------------------------------------------------------------
10/1/2003 - 3/31/2004 3.50 : 1.00
--------------------------------------------------------------
4/1/2004 - 9/30/2004 3.75 : 1.00
--------------------------------------------------------------
10/1/2004 - 6/30/2010 4.00 : 1.00
--------------------------------------------------------------
B. MINIMUM CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Company
shall not permit the Consolidated Fixed Charge Coverage Ratio for any
Calculation Period to be less than the correlative amount indicated below for
the date on which such period ends:
--------------------------------------------------------------
MINIMUM
FIXED CHARGE COVERAGE
END OF CALCULATION PERIOD RATIO
--------------------------------------------------------------
12/31/2000 - 6/30/2001 1.10 : 1.00
--------------------------------------------------------------
7/1/2001 - 6/30/2010 1.15 : 1.00
--------------------------------------------------------------
C. MAXIMUM LEVERAGE RATIO. Company shall not permit the
Consolidated Leverage Ratio as of the last day of any Fiscal Quarter to exceed
the correlative ratio indicated below for the date on which such Fiscal Quarter
ends:
--------------------------------------------------------------
MAXIMUM
END OF FISCAL QUARTER LEVERAGE RATIO
--------------------------------------------------------------
12/31/2000 - 3/31/2001 4.60 : 1.00
--------------------------------------------------------------
4/1/2001 - 9/30/2001 4.30 : 1.00
--------------------------------------------------------------
10/1/2001 - 3/31/2002 4.00 : 1.00
--------------------------------------------------------------
4/1/2002 - 9/30/2002 3.70 : 1.00
--------------------------------------------------------------
<PAGE> 157
--------------------------------------------------------------
10/1/2002 - 3/31/2003 3.35 : 1.00
--------------------------------------------------------------
4/1/2003 - 9/30/2003 3.10 : 1.00
--------------------------------------------------------------
10/1/2003 - 3/31/2004 2.85 : 1.00
--------------------------------------------------------------
4/1/2004 - 9/30/2004 2.75 : 1.00
--------------------------------------------------------------
10/1/2004 - 6/30/2010 2.50 : 1.00
--------------------------------------------------------------
14.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND
ACQUISITIONS.
Company shall not, and shall not permit any of its
Subsidiaries to, alter the corporate or legal structure of Company or any of its
Subsidiaries, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sublease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, except:
(i) any Subsidiary of Company may be merged with or
into Company or any Wholly Owned Subsidiary Guarantor, or be
liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions,
to Company or any Wholly Owned Subsidiary Guarantor; provided that, in
the case of such a merger involving Company, Company shall be the
continuing or surviving corporation, in the case of any such merger
involving a Domestic Subsidiary (but not Company), a Domestic
Subsidiary shall be the continuing or surviving corporation and in the
case of any such merger involving a Wholly Owned Subsidiary Guarantor
(but not Company), a Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving corporation;
(ii) any Borrower and its Subsidiaries may make
Consolidated Capital Expenditures permitted under subsection 7.8;
(iii) any Borrower and its Subsidiaries may dispose
of obsolete, worn out or surplus property in the ordinary course of
business;
(iv) any Borrower and its Subsidiaries may sell or
otherwise dispose of assets in transactions that do not constitute
Asset Sales;
<PAGE> 158
provided that the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof (determined in
good faith by the board of directors of the Company) and no less than
80% thereof shall be paid in cash;
(v) any Borrower and its Wholly Owned Subsidiary
Guarantors may make Permitted Acquisitions, provided, that except for
the Acquisition and the Planned Acquisitions, (i) such acquisition is
reasonably related to a significant line of business carried out by
Company and/or any Subsidiary as of the date of such acquisition, (ii)
such acquisition does not occur prior to the date of repayment or
refinancing in full of the Bridge Loans and prior to the date upon
which $200 million of the Term Loans have been prepaid pursuant to
subsections 2.4B(iii)(b) and 2.4B(iii)(c), (iii) no single acquisition
or acquisitions which are reasonably determined by Administrative Agent
to be part of the same overall transaction may exceed $20,000,000 and
(iv) all such acquisitions may not exceed, in the aggregate,
$50,000,000 since the Announcement Date;
(vi) the Company and its Subsidiaries may engage in
those transactions contemplated by the Restructuring; and
(vii) subject to subsection 7.13, any Borrower and
its Subsidiaries may make Asset Sales, the aggregate value of all such
sales having a book value not exceeding 15% of the consolidated total
assets of the Company on the date of such sale, provided that (x) the
consideration received for such assets in each such Asset Sale shall
(i) be in an amount at least equal to the fair market value thereof and
(ii) consists of not less than 75% in Cash or Cash Equivalents; (y) no
more than $40,000,000 of the consideration received in the aggregate
for all such sales shall be non-cash; and (z) the Net Asset Sale
Proceeds of such Asset Sales shall be applied as required by subsection
2.4B(iii)(b).
14.8 CONSOLIDATED CAPITAL EXPENDITURES.
No Borrower shall, and no Borrower shall permit its
Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal
Year, in an aggregate amount in excess of $125 million (the "MAXIMUM
CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"); provided that the Maximum
Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased
by an amount equal to the excess, if any, of the Maximum Consolidated Capital
Expenditures Amount for the previous Fiscal Year
<PAGE> 159
(as adjusted in accordance with this proviso) over the actual amount of
Consolidated Capital Expenditures for such previous Fiscal Year; provided,
further, that in no event shall the amount of such increase exceed 25% of the
Maximum Consolidated Capital Expenditures Amount (prior to any adjustment in
accordance with this proviso).
14.9 FISCAL YEAR.
Company shall not change its Fiscal Year-end from December 31.
14.10 SALES AND LEASE-BACKS.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as
a guarantor or other surety with respect to any lease, whether an Operating
Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) which Company or any of its
Subsidiaries has sold or transferred or is to sell or transfer to any other
Person (other than Company or any of its Subsidiaries) or (ii) which Company or
any of its Subsidiaries intends to use for substantially the same purpose as any
other property which has been or is to be sold or transferred by Company or any
of its Subsidiaries to any Person (other than Company or any of its
Subsidiaries) in connection with such lease except that Company and its
Subsidiaries may enter into sale and lease-back transactions with respect to the
properties listed on SCHEDULE 7.10 annexed hereto.
14.11 SALE OR DISCOUNT OF RECEIVABLES.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, sell with recourse, or discount or
otherwise sell for less than the face value thereof, any of its notes or
accounts receivable, other than the sale or discount without recourse of past
due accounts receivable arising in the ordinary course of business in connection
with the compromise or collection thereof.
14.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any holder of 5% or more of any class of
equity Securities of Company or any of its Subsidiaries or with any Affiliate of
Company or of any such holder, on terms that are less favorable to Company or
that Subsidiary, as the case may be, than those that might be obtained at the
time from Persons who are not such a holder or Affiliate; provided that the
foregoing restriction shall not apply to (i) any transaction
<PAGE> 160
between Company and any of its Wholly Owned Subsidiary Guarantors or between any
of its Wholly Owned Subsidiary Guarantors or (ii) reasonable and customary fees
paid to members of the Boards of Directors of Company and its Subsidiaries.
14.13 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale in compliance with the provisions of
subsections 7.7(vi) and (vii) of 100% of the capital stock or other equity
Securities of any of its Subsidiaries or pursuant to the Collateral Documents,
Company shall not:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock or other
equity Securities of any of its Subsidiaries, except to qualify
directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock or other equity Securities of any of its
Subsidiaries (including such Subsidiary), except to Company, another
Subsidiary of Company, or to qualify directors if required by
applicable law.
14.14 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall not, and shall
not permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries and Target and its
Subsidiaries on the Announcement Date and similar or related businesses and (ii)
such other lines of business as may be consented to by Requisite Lenders.
14.15 CERTAIN RESTRICTIONS.
Company shall not, and shall not permit any of its
Subsidiaries to, enter into any agreement (other than the Loan Documents and
agreements evidencing Indebtedness outstanding on the Announcement Date, in each
case as in effect on the Announcement Date) which restricts the ability of
Company or any of its Subsidiaries to (a) enter into amendments, modifications
or waivers of the Loan Documents, (b) sell, transfer or otherwise dispose of its
assets (other than as permitted hereunder), (c) create, incur, assume or suffer
to exist any Lien upon any of its property, (d) create, incur, assume, suffer to
exist or otherwise become liable with respect to any Indebtedness (other than as
permitted hereunder), or (e) make any Restricted Junior Payment (other than in
connection with unsecured Indebtedness pursuant to subsection 7.1(viii)),
provided that Capital Leases or
<PAGE> 161
agreements governing purchase money Indebtedness which contain restrictions of
the types referred to in clauses (b) or (c) with respect to the property covered
thereby shall be permitted. The Company shall use commercially reasonable
efforts to ensure that the amount of Cash and Cash Equivalents held by any of
its Subsidiaries that are not Loan Parties does not exceed the amounts which
Company reasonably considers necessary for the needs and anticipated needs of
the business of such Subsidiary.
14.16 MATERIAL SUBSIDIARIES.
The Company shall not at any time permit the total assets and
net sales of all Subsidiaries that are not Material Subsidiaries (including for
this purpose the total assets and net sales of all Subsidiaries of each Material
Subsidiary) to exceed ten percent (10%) of the consolidated assets of Company
and its Subsidiaries or the consolidated net sales of Company and its
Subsidiaries for any period of four (4) consecutive Fiscal Quarters.
15 SECTION
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF
DEFAULT") shall occur:
16.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by the Borrowers to pay any installment of principal
of any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; failure by the
Borrowers to pay when due any amount payable to an Issuing Lender in
reimbursement of any drawing under a Letter of Credit; or failure by the
Borrowers to pay any interest on any Loan or any fee or any other amount due
under this Agreement within five days after the date due; or
16.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of the Company or any of its Material
Subsidiaries or (after the Closing Date) Target or any of its
Subsidiaries which is a Material Subsidiary to pay when due any
principal of or interest on or any other amount payable in respect of
one or more items of Indebtedness (other than Indebtedness referred to
in subsection 8.1) or Contingent
<PAGE> 162
Obligations in an aggregate principal amount of $10,000,000 or more, in
each case beyond the end of any grace period provided therefor; or (ii)
breach or default by Company or any of its Material Subsidiaries or
(after the Closing Date) Target or any of its Subsidiaries which is a
Material Subsidiary with respect to any other term of (a) one or more
items of Indebtedness or Contingent Obligations in the individual or
aggregate principal amounts referred to in clause (i) above or (b) any
loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Contingent Obligation(s), if the effect of
such breach or default is to cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on
behalf of such holder or holders) to cause, that Indebtedness or
Contingent Obligation(s) to become or be declared due and payable prior
to its stated maturity or the stated maturity of any underlying
obligation, as the case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
16.3 BREACH OF CERTAIN COVENANTS.
Failure of any Borrower to perform or comply with any term or
condition contained in subsections 2.5, 6.1 (viii) or 6.2 (with respect to
corporate existence) or Section 7 of this Agreement; or
16.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by any Borrower or any of their Subsidiaries in any Loan Document or in any
certificate, document or financial or other statement at any time furnished to
Administrative Agent under or in connection with this Agreement shall be false
in any material respect on, the date or as of made or deemed made; or
16.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any of the other Loan
Documents, other than any such term referred to in any other subsection of this
Section 8, and such default shall continue unremedied for a period of 30 days;
or
16.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company or any of
its Material Subsidiaries or Target or any of its Subsidiaries which is
a Material Subsidiary in an involuntary case under the Bankruptcy Code
or under any
<PAGE> 163
other applicable bankruptcy, insolvency or similar law now or hereafter
in effect, which decree or order is not stayed within 60 days of the
entry thereof; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against the Company or any of its Material Subsidiaries or
Target or any of its Subsidiaries which is a Material Subsidiary under
the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or a decree or
order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company or any of its
Material Subsidiaries or Target or any of its Subsidiaries which is a
Material Subsidiary, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of the
Company or any of its Material Subsidiaries or Target or any of its
Subsidiaries which is a Material Subsidiary for all or a substantial
part of its property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of the
property of the Company or any of its Material Subsidiaries, and any
such event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
16.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) The Company or any of its Material Subsidiaries
shall have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case,
under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or the Company or any of its Material
Subsidiaries shall make any assignment for the benefit of creditors; or
(ii) the Company or any of its Material Subsidiaries shall be unable,
or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due; or the Board of Directors of
the Company or any of its Material Subsidiaries (or any committee
thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to in clause (i) above or this
clause (ii); or
16.8 JUDGMENTS AND ATTACHMENTS.
<PAGE> 164
Any money judgment, writ or warrant of attachment or similar
process involving in the aggregate at any time an amount in excess of
$25,000,000 (not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against the Company or any of its Material Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date
of any proposed sale thereunder); or
16.9 DISSOLUTION.
Any order, judgment or decree shall be entered against the
Company or any of its Material Subsidiaries decreeing the dissolution or split
up of the Company or that Subsidiary and such order shall remain undischarged or
unstayed for a period in excess of 60 days; or
16.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually
or in the aggregate results in or might reasonably be expected to result in
liability of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates; or there shall exist an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans, which could reasonably be expected to result in a Material
Adverse Effect.
16.11 CHANGE IN CONTROL.
Any Person or any two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Exchange Act), directly or
indirectly, of Securities of Company (or other Securities convertible into such
Securities) representing 30% or more of the combined voting power of all
Securities of Company entitled to vote in the election of directors, other than
Securities having such power only by reason of the happening of a contingency.
16.12 INVALIDITY OF LOAN DOCUMENTS.
At any time after the execution and delivery thereof, (i) this
Agreement or any other Loan Document other than the Collateral Documents for any
reason, other than the satisfaction in full of all Obligations, shall cease to
be in full force and effect (other than in accordance with its terms) or shall
be declared to be null and void, (ii) any Collateral Document shall cease to be
in full force and effect (other than by reason of a release of Collateral
thereunder in accordance with the
<PAGE> 165
terms hereof or thereof, the satisfaction in full of the Obligations or any
other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void, or the Collateral Agent
shall not have or shall cease to have a valid and perfected First Priority Lien
in any material portion of the Collateral purported to be covered thereby, in
each case for any reason other than as contemplated by subsection 6.9B or the
failure of any Agent or any Lender to take any action within its control, or
(iii) any Loan Party shall contest the validity or enforceability of any Loan
Document in writing or deny in writing that it has any further liability,
including with respect to future advances by Lenders, under any Loan Document to
which it is a party.
Then, subject to the second proviso set forth below (i) upon
the occurrence of any Event of Default described in subsection 8.6 or 8.7, each
of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an
amount equal to the maximum amount that may at any time be drawn under all
Letters of Credit then outstanding (whether or not any beneficiary under any
such Letter of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents or certificates required to draw under
such Letter of Credit), and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by the
Borrowers, and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon
the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent
of Requisite Lenders, by written notice to the Borrowers, declare all or any
portion of the amounts described in clauses (a) through (c) above to be, and the
same shall forthwith become, immediately due and payable, and the obligation of
each Lender to make any Loan, the obligation of Administrative Agent to issue
any Letter of Credit and the right of any Lender to issue any Letter of Credit
hereunder shall thereupon terminate; provided that the foregoing shall not
affect in any way the obligations of Lenders under subsection 3.3C(i); provided
further, that notwithstanding any other provision of the Loan Documents, during
the period commencing with the Announcement Date and ending on the Offer
Termination Date, Administrative Agent and the Lenders (or any of them or any
other party) shall not be entitled to (i) terminate the Commitments related to
Offer Borrowings, (ii) rescind this Agreement nor, (iii) declare the Loans due
and payable (or due and payable on demand) or accelerate any principal amounts
outstanding hereunder howsoever described, in whole or in part or exercise any
set off or similar right
<PAGE> 166
arising on the basis of breach of contract, misrepresentation or Event of
Default or otherwise unless an Event of Default described in subsection 8.6,
8.7, 8.9 or 8.12 shall have occurred and be continuing.
Notwithstanding anything to the contrary in the preceding
paragraph, during the Clean-up Period, none of Administrative Agent, Collateral
Agent or any Lender may (i) terminate the Commitments, (ii) rescind this
Agreement or (iii) declare the Loans to be due and payable (or due and payable
on demand) or accelerate any principal amounts outstanding hereunder, howsoever
described, as a result solely of one or more Potential Events of Defaults or
Events of Defaults described in subsections 8.2, 8.3 (other than with respect to
subsection 7.6), 8.4 or 8.5; provided that the event or circumstance giving rise
to such Potential Event of Default or Event of Default, or the result of such
Potential Event of Default or Events of Default, (i) directly relates to Target
or any of its Subsidiaries (or any of their businesses, assets or liabilities)
and has occurred as a result of transactions that occurred or conditions that
existed prior to the Closing Date or occurred as a result of binding contractual
obligations entered into by Target or any of its Subsidiaries prior to the
Closing Date, (ii) is capable of being cured or remedied during the Clean-up
Period and (iii) was not known by a responsible officer of Company prior to the
Announcement Date; provided, further, that Administrative Agent, Collateral
Agent and the Lenders shall be entitled to exercise any and all rights and
remedies granted to them hereunder and under the Loan Documents with respect to
an occurrence or continuation of any such Potential Event of Default or Event of
Default after the expiration of the Clean-up Period.
Notwithstanding anything contained in the preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
clause (ii) of such paragraph the Borrowers shall pay all arrears of interest
and all payments on account of principal which shall have become due otherwise
than as a result of such acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 11.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and
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are not intended, directly or indirectly, to benefit the Borrowers, and such
provisions shall not at any time be construed so as to grant the Borrowers the
right to require Lenders to rescind or annul any acceleration hereunder or to
preclude Agents or Lenders from exercising any of the rights or remedies
available to them under any of the Loan Documents, even if the conditions set
forth in this paragraph are met.
17 SECTION
AGENTS
18.1 APPOINTMENT.
A. APPOINTMENT OF AGENT. CSFB is hereby appointed as Joint
Lead Arranger, Administrative Agent, Collateral Agent and Bookrunner and J.P.
Morgan is appointed as Syndication Agent and Joint Lead Arranger hereunder and
under the other Loan Documents, and each Lender hereby authorizes each Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Each Agent agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as applicable. The provisions of
this Section 9 are solely for the benefit of Agents and Lenders and the
Borrowers shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties under this Agreement,
each Agent shall act solely as an agent of Lenders and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for the Borrowers or any of their Subsidiaries. Upon the
conclusion of the Initial Period, all obligations of the Joint Lead Arrangers
hereunder shall terminate and thereafter the Joint Lead Arrangers (in such
capacities) shall have no obligations or liabilities under any of the Loan
Documents.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the
intent of this Agreement and the other Loan Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case Collateral Agent deems that
by reason of any present or future law of any jurisdiction it may not exercise
any of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be
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necessary that the Collateral Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent or collateral
co-agent (any such additional individual or institution being referred to herein
individually as a "SUPPLEMENTAL COLLATERAL AGENT" and collectively as
"SUPPLEMENTAL COLLATERAL AGENTS").
In the event that the Collateral Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to the
Collateral Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either the Collateral Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 11.2 and 11.3 that refer to the
Collateral Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to the Collateral Agent shall be deemed to be
references to Agent and/or such Supplemental Collateral Agent, as the context
may require.
Should any instrument in writing from the Borrowers or any
other Loan Party be required by any Supplemental Collateral Agent so appointed
by the Collateral Agent for more fully and certainly vesting in and confirming
to him or it such rights, powers, privileges and duties, the Borrowers shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any and all
such instruments promptly upon request by the Collateral Agent. In case any
Supplemental Collateral Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall vest in and be exercised by the Collateral Agent until the
appointment of a new Supplemental Collateral Agent.
18.2 POWERS AND DUTIES; GENERAL IMMUNITY.
A. POWERS; DUTIES SPECIFIED. Each Lender irrevocably
authorizes each Agent to take such action on such Lender's behalf and to
exercise such powers, rights and remedies hereunder and under the other Loan
Documents as are specifically delegated or granted to such Agent by the terms
hereof and thereof,
<PAGE> 169
together with such powers, rights and remedies as are reasonably incidental
thereto. An Agent shall have only those duties and responsibilities that are
expressly specified in this Agreement with respect to such Agent and the other
Loan Documents. An Agent may exercise such powers, rights and remedies and
perform such duties by or through its agents or employees. An Agent shall not
have, by reason of this Agreement or any of the other Loan Documents, a
fiduciary relationship in respect of any Lender; and nothing in this Agreement
or any of the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect of
this Agreement or any of the other Loan Documents except as expressly set forth
herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. An Agent shall not
be responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by such Agent to Lenders or by or on
behalf of the Borrowers to such Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of the Borrowers or any other Person liable for
the payment of any Obligations, nor shall such Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, an Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. EXCULPATORY PROVISIONS. None of Agents or any of their
respective officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by such Agent under or in connection with any of
the Loan Documents except to the extent caused by such Agent's gross negligence
or willful misconduct. An Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless
and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other
<PAGE> 170
Lenders as may be required to give such instructions under subsection 11.6) and,
upon receipt of such instructions from Requisite Lenders (or such other Lenders,
as the case may be), such Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) an Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for the
Borrowers and their Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against an Agent as a result of such Agent acting or (where so
instructed) refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under subsection
11.6).
D. AGENTS ENTITLED TO ACT AS LENDERS. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, an Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Loans and the Letters
of Credit, each Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include such Agent in its individual capacity. Each Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with any Borrower
or any of their Affiliates as if it were not performing the duties specified
herein, and may accept fees and other consideration from any Borrower for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
18.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of the
Borrowers and their Subsidiaries in connection with the making of the Loans and
the issuance of Letters of Credit hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of the Borrowers and
their Subsidiaries. Agents shall not have any duty or responsibility, either
initially or on a continuing basis, to
<PAGE> 171
make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter, and Agents shall not have any responsibility with respect
to the accuracy of or the completeness of any information provided to Lenders.
18.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent, to the extent that such Agent shall not have
been reimbursed by the Borrowers, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
such Agent in exercising its powers, rights and remedies or performing its
duties hereunder or under the other Loan Documents or otherwise in its capacity
as Agent, in any way relating to or arising out of this Agreement or the other
Loan Documents; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
18.5 SUCCESSOR AGENT AND SWING LINE LENDER.
Any Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and the Borrowers. Upon any such notice of
resignation, Requisite Lenders shall have the right, upon five Business Days'
notice to the Borrowers, to appoint a successor to such Agent. Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, that
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, as the case may be,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as an Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
Any resignation of Administrative Agent pursuant to this
subsection 9.5 shall also constitute the resignation of CSFB or its successor as
the Swing Line Lender, and any successor Administrative Agent appointed pursuant
to subsection
<PAGE> 172
9.5 shall, upon its acceptance of such appointment, become the successor Swing
Line Lender for all purposes hereunder. In such event (i) Company shall prepay
any outstanding Swing Line Loans made by the retiring Administrative Agent in
its capacity as Swing Line Lender, (ii) upon such prepayment, the retiring
Administrative Agent and Swing Line Lender shall surrender the Swing Line Note
held by it to Company for cancellation, and (iii) Company shall issue a new
Swing Line Note to the successor Administrative Agent and Swing Line Lender
substantially in the form of EXHIBIT VI annexed hereto, in the principal amount
of the Swing Line Loan Commitment then in effect and with other appropriate
insertions.
18.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Collateral Agent, on
behalf of and for the benefit of Lenders, to enter into each Collateral Document
as secured party and to be the agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided that Collateral Agent
shall not (i) enter into or consent to any amendment, modification, termination
or waiver of any provision contained in any Collateral Document or the
Subsidiary Guaranty or (ii) release any Collateral (except as otherwise
expressly permitted or required pursuant to the terms of this Agreement or the
applicable Collateral Document), in each case without the prior consent of
Requisite Lenders (or, if required pursuant to subsection 11.6, all Lenders);
provided, further, however, that, without further written consent or
authorization from Lenders, Collateral Agent may execute any documents or
instruments necessary to (a) release any Lien encumbering any item of Collateral
that is the subject of a sale or other disposition of assets permitted by this
Agreement or to which Requisite Lenders have otherwise consented or (b) release
any Subsidiary Guarantor from the Subsidiary Guaranty if all of the capital
stock of such Subsidiary Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to a sale or other disposition permitted
hereunder or to which Requisite Lenders have otherwise consented. Anything
contained in any of the Loan Documents to the contrary notwithstanding, the
Borrowers, Collateral Agent and each Lender hereby agree that (X) no Lender
shall have any right individually to realize upon any of the Collateral under
any Collateral Document or to enforce the Subsidiary Guaranty, it being
understood and agreed that all rights and remedies under the Collateral
Documents and the Subsidiary Guaranty may be exercised solely by Collateral
Agent for the benefit of Lenders in accordance with the terms thereof, and (Y)
in the event of a foreclosure by Collateral Agent on any of the Collateral
pursuant to a public or private sale, Collateral Agent or any Lender may be the
purchaser of any or all of
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such Collateral at any such sale and Collateral Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing), shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Collateral Agent at
such sale.
19 SECTION
COMPANY GUARANTY
20.1 THE COMPANY GUARANTY.
In order to induce Administrative Agent and the Lenders to
enter into this Agreement and to extend credit hereunder, and in recognition of
the direct benefits to be received by Company from the proceeds of the Loans and
the issuance of the Letters of Credit, Company hereby agrees with the Lenders as
follows: Company hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, acceleration or otherwise, of any and all of the Guaranteed
Obligations of Newco, any Domestic Borrower or any Foreign Borrower to the
Lenders. If any or all of the Guaranteed Obligations of Newco, any Domestic
Borrower or any Foreign Borrower to the Lenders becomes due and payable
hereunder, Company irrevocably and unconditionally promises to pay such
indebtedness to the Lenders, or order, on demand, together with any and all
expenses which may be incurred by the Lenders in collecting any of the
Guaranteed Obligations. Notwithstanding the foregoing provisions of this
subsection 10.1, no amount shall be payable hereunder in respect of Offer
Borrowings at any time when the Administrative Agent is not permitted to
accelerate the Loans in accordance with the provisions of Section 8. If claim is
ever made upon any Lender for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations and any
of the aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including Newco, any Domestic Borrower or any Foreign Borrower), then and in
such event Company agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon Company, notwithstanding any revocation of this
Company Guaranty, and Company
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shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
20.2 BANKRUPTCY.
Additionally, Company unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations to the
Lenders whether or not due or payable by Newco, any Domestic Borrower or any
Foreign Borrower upon the occurrence of any of the events specified in
subsection 8.6 or subsection 8.7, and unconditionally promises to pay such
indebtedness to the Lenders, or order, on demand, in lawful money of the United
States.
20.3 NATURE OF LIABILITY.
The liability of Company hereunder is exclusive and
independent of any security for or other guaranty of the Guaranteed Obligations
whether executed by Company, any other guarantor or by any other party, and the
liability of Company hereunder is not affected or impaired by (a) any direction
as to application of payment by Newco, any Domestic Borrower or any Foreign
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations, or (c) any payment on or in reduction of any such other
guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by Newco, any Domestic Borrower or any Foreign
Borrower, or (e) any payment made to any Lender on the Guaranteed Obligations
which any such Lender repays to Newco, any Domestic Borrower or any Foreign
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and Company waives any right to
the deferral or modification of its obligations hereunder by reason of any such
proceeding.
20.4 INDEPENDENT OBLIGATION.
The obligations of Company hereunder are independent of the
obligations of any other guarantor, any other party, Newco, any Domestic
Borrower or any Foreign Borrower, and a separate action or actions may be
brought and prosecuted against Company whether or not action is brought against
any other guarantor, any other party, Newco, any Domestic Borrower or any
Foreign Borrower and whether or not any other guarantor, any other party, Newco,
any Domestic Borrower or any Foreign Borrower be joined in any such action or
actions. Company waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment
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by Newco or other circumstance which operates to toll any statute of limitations
as to Newco, any Domestic Borrower or any Foreign Borrower shall operate to toll
the statute of limitations as to Company. This Company Guaranty is a continuing
one and all liabilities to which it applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon.
20.5 AUTHORIZATION.
Company authorizes the Lenders without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew, increase,
accelerate or alter, any of the Guaranteed Obligations (including any
increase or decrease in the rate of interest thereon), any security
therefor, or any liability incurred directly or indirectly in respect
thereof, and the Company Guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner and in any order any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights
against Newco, any other Loan Party or others or otherwise act or
refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, Newco, any Domestic Borrower, any Foreign Borrower or other
obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
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the payment of any liability (whether due or not) of Newco, any
Domestic Borrower or any Foreign Borrower to its creditors other than
the Lenders;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of Newco, any Domestic
Borrower or any Foreign Borrower to the Lenders regardless of what
liability or liabilities of the Company, Newco, any Domestic Borrower
or any Foreign Borrower remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, this Agreement or any of the instruments or
agreements referred to herein, or otherwise amend, modify or supplement
this Agreement or any of such other instruments or agreements; and/or
(h) take any other action which would, under
otherwise applicable principles of common law, give rise to a legal or
equitable discharge of Company from its liabilities under this Company
Guaranty.
20.6 RELIANCE.
It is not necessary for any Lender to inquire into the
capacity or powers of Newco, any Domestic Borrower or any Foreign Borrower or
the officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
20.7 SUBORDINATION.
Any of the indebtedness of Newco, any Domestic Borrower or any
Foreign Borrower now or hereafter owing to Company, is hereby subordinated to
the Guaranteed Obligations of Newco, each Domestic Borrower and each Foreign
Borrower owing to the Lenders; and if Administrative Agent so requests at a time
when an Event of Default exists, all such indebtedness of Newco, any Domestic
Borrower or any Foreign Borrower to Company shall be collected, enforced and
received by Company for the benefit of the Lenders and be paid over to the
Administrative Agent on behalf of the Lenders on account of the Guaranteed
Obligations of Newco, each Domestic Borrower and each Foreign Borrower to the
Lenders, but without affecting or impairing in any manner the liability of
Company
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under the other provisions of this Company Guaranty. Prior to the transfer by
Company of any note or negotiable instrument evidencing any of the indebtedness
of Newco, any Domestic Borrower or any Foreign Borrower to Company, Company
shall mark such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing,
Company hereby agrees with the Lenders that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Company
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise) until all Guaranteed Obligations have been irrevocably paid in full
in cash.
20.8 WAIVER.
A. Company waives any right (except as shall be required by
applicable statute and cannot be waived) to require any Lender to (i) proceed
against Newco, any Domestic Borrower, any Foreign Borrower, any other guarantor
or any other party, (ii) proceed against or exhaust any security held from
Newco, any Domestic Borrower, any Foreign Borrower, any other guarantor or any
other party or (iii) pursue any other remedy in any Lender's power whatsoever.
Company waives any defense based on or arising out of any defense of Newco, any
Domestic Borrower, any Foreign Borrower, any other guarantor or any other party,
other than payment in full of the Guaranteed Obligations, based on or arising
out of the disability of Newco, any Domestic Borrower, any Foreign Borrower, any
other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of Newco, any Domestic
Borrower or any Foreign Borrower other than payment in full of the Guaranteed
Obligations. The Lenders may, at their election, foreclose on any security held
by the Collateral Agent, or any other Lender by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy the Lenders may have against Newco, any Domestic
Borrower, any Foreign Borrower, any other party or any security, without
affecting or impairing in any way the liability of Company hereunder except to
the extent the Guaranteed Obligations have been paid. Company waives any defense
arising out of any such election by the Lenders, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of Company against Newco, any Domestic Borrower, any
Foreign Borrower, any other party or any security.
B. Company waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices
<PAGE> 178
of protest, notices of dishonor, notices of acceptance of this Company Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Company assumes all responsibility for being and keeping
itself informed of Newco's, each Domestic Borrower's and each Foreign Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which Company assumes and incurs hereunder, and agrees that
neither the Agents nor any Bank shall have any duty to advise Company of
information known to them regarding such circumstances or risks.
21 SECTION
MISCELLANEOUS
22.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF
CREDIT.
A. GENERAL. Subject to subsection 11.1B, each Lender shall
have the right at any time to (i) sell, assign or transfer to any Eligible
Assignee, or (ii) sell participations to any Person in, all or any part of its
Commitments or any Loan or Loans made by it or its Letters of Credit or in any
case its rights or obligations with respect thereto or participations therein or
any other interest herein or in any other obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of the Borrowers, require any Borrower to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; provided,
further, that no such sale, assignment or transfer described in clause (i) above
shall be effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 11.1B(ii); provided, further,
that no such sale, assignment, transfer or participation of any Letter of Credit
or any participation therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in the Revolving Loan
Commitment and the Revolving Loans of the Lender effecting such sale,
assignment, transfer or participation. Except as otherwise provided in this
subsection 11.1, no Lender shall, as between the Borrowers and such Lender, be
relieved of any of its obligations hereunder as a result of any sale, assignment
or transfer of, or any granting of participations in, all or any part of its
Commitments or the Loans, the Letters of Credit or participations therein, or
the other Obligations owed to such Lender.
<PAGE> 179
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each
Commitment, Loan, Letter of Credit or participation therein, or other
Credit Obligation may (a) be assigned in any amount to another Lender,
or to an Affiliate of the assigning Lender or another Lender or to an
Approved Fund or by either of the Joint Lead Arrangers, with the giving
of notice to the Company and Administrative Agent or (b) be assigned in
an aggregate amount of not less than $5,000,000 (or such lesser amount
as shall constitute the aggregate amount of the Commitments, Loans,
Letters of Credit and participations therein, and other Obligations of
the assigning Lender) to any other Eligible Assignee with the consent
of the Company and Administrative Agent (which consent of the Company
and Administrative Agent shall not be unreasonably withheld or
delayed); provided that assignment to an Affiliate of the assigning
Lender (or an Approved Fund) that would result in increased costs to
the Company shall also require the prior written consent of the Company
and such prior written consent of the Company would not be unreasonably
withheld if the same is conditioned on the Eligible Assignee agreeing
not to require reimbursement from Company of such increased costs;
provided, further, that after an Event of Default occurs and is
continuing, the consent of the Borrowers shall not be required for
assignment to an Eligible Assignee. To the extent of any such
assignment in accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein, or
other obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Administrative Agent,
for its acceptance and recording in the Register, an Assignment
Agreement, together with a processing and recordation fee of $3,500 and
such forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding matters as the assignee
under such Assignment Agreement may be required to deliver to
Administrative Agent pursuant to subsection 2.7B(iii)(a). Upon such
execution, delivery, acceptance and recordation, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been
<PAGE> 180
assigned to it pursuant to such Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights which survive
the termination of this Agreement under subsection 11.9B) and be
released from its obligations under this Agreement (and, in the case of
an Assignment Agreement covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto; provided that, anything
contained in any of the Loan Documents to the contrary notwithstanding,
if such Lender is the Issuing Lender with respect to any outstanding
Letters of Credit such Lender shall continue to have all rights and
obligations of an Issuing Lender with respect to such Letters of Credit
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such assignee
and any remaining Commitment of such assigning Lender and, if any such
assignment occurs after the issuance of the Notes hereunder, the
assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon new Notes shall be
issued to the assignee and/or to the assigning Lender, substantially in
the form of EXHIBIT IV, EXHIBIT V, EXHIBIT VI or EXHIBIT VII annexed
hereto, as the case may be, with appropriate insertions, to reflect the
new Commitments and/or outstanding Loans, as the case may be, of the
assignee and/or the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT; RECORDATION
IN REGISTER. Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 11.1B(i) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters
that such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a), Administrative Agent shall, if
Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required
pursuant to subsection 11.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of Administrative Agent
to such assignment), (b) record the information contained therein in
the Register, and (c) give prompt notice thereof to the Borrowers.
Administrative Agent shall maintain a copy of each Assignment
<PAGE> 181
Agreement delivered to and accepted by it as provided in this
subsection 11.1B(ii).
C. PARTICIPATIONS. The holder of any participation,
other than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) the extension of the scheduled final
maturity date of any Loan allocated to such participation or (ii) a reduction of
the principal amount of or the rate of interest payable on any Loan allocated to
such participation, and all amounts payable by the Borrowers hereunder
(including amounts payable to such Lender pursuant to subsections 2.6D, 2.7 and
3.6) shall be determined as if such Lender had not sold such participation. The
Borrowers and each Lender hereby acknowledge and agree that, solely for purposes
of subsections 11.4 and 11.5, (a) any participation will give rise to a direct
obligation of the Borrowers to the participant and (b) the participant shall be
considered to be a "Lender."
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition
to the assignments and participations permitted under the foregoing provisions
of this subsection 11.1, any Lender may assign and pledge all or any portion of
its Loans, the other Obligations owed to such Lender, and its Notes to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided that (i) no Lender shall, as
between the Borrowers and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in no event
shall such Federal Reserve Bank be considered to be a "Lender" or be entitled to
require the assigning Lender to take or omit to take any action hereunder.
E. ASSIGNMENTS TO SPECIAL PURPOSE FUNDING VEHICLES.
In addition to the assignments and participations permitted under the foregoing
provisions of this subsection 11.1, any Lender (a "GRANTING LENDER") may grant
to special purpose funding vehicle (an "SPV"), identified as such in writing
from time to time by the Granting Lender to Administrative Agent and the
Borrowers, the option to provide to the Borrowers all or any part of any Loan
that such Granting Lender would otherwise be obligated to make the Borrowers
pursuant to this Agreement; provided (i) nothing herein shall constitute a
commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPV
<PAGE> 182
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this subsection
11.1E(i), any SPV may (i) with notice to, but without the prior written consent
of, the Borrowers and Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loan to the Granting
Lender or to any financial institutions (consented to by the Borrowers and
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit liquidity enhancement to such SPV. After the date of a grant
to any SPV, this section may not be amended without the written consent of such
SPV.
F. INFORMATION. Each Lender may furnish any
information concerning the Borrowers and their Subsidiaries in the possession of
that Lender from time to time to assignees and participants (including
prospective assignee and participants), subject to subsection 11.19.
G. REPRESENTATIONS OF LENDERS. Each Lender listed on
the signature pages hereof hereby represents and warrants (i) that it is an
Eligible Assignee described in clause (A) of the definition thereof; (ii) that
it has experience and expertise in the making of or investing in loans such as
the Loans; and (iii) that it will make or invest in its Loans for its own
account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this subsection 11.1, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control). Each
Lender that becomes a party hereto pursuant to an Assignment Agreement shall be
deemed to agree that the representations and warranties of such
<PAGE> 183
Lender contained in Section 2(c) of such Assignment Agreement are incorporated
herein by this reference.
22.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, the Borrowers agree to pay promptly (i) all the actual and
reasonable costs and expenses of Agents in connection with the preparation of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto; (ii) all reasonable costs of furnishing all opinions by counsel for the
Borrowers (including any opinions requested by Lenders as to any legal matters
arising hereunder) and of the Borrowers' performance of and compliance with all
agreements and conditions on their part to be performed or complied with under
this Agreement and the other Loan Documents including with respect to confirming
compliance with environmental, insurance and solvency requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to Agents (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by the Borrowers; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Collateral
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Collateral Agent and of counsel providing any opinions that
Collateral Agent or Requisite Lenders may request in respect of the Collateral
Documents or the Liens created pursuant thereto; (v) the custody or preservation
of any of the Collateral; (vi) all other actual and reasonable costs and
expenses incurred by Agents in connection with the syndication of the
Commitments and the negotiation, preparation and execution of the Loan Documents
and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (vii) after the occurrence of an Event of
Default, all costs and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement, incurred by Agents
and Lenders in enforcing any Obligations of or in collecting any payments due
from any Loan Party hereunder or under the other Loan Documents by reason of
such Event of Default (including in connection with the sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty) or in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy proceedings.
<PAGE> 184
22.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
11.2, whether or not the transactions contemplated hereby shall be consummated,
the Borrowers agree to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Agents and Lenders, and the officers,
directors, employees, trustee, agents and affiliates of Agents and Lenders
(collectively called the "INDEMNITEES"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that the Borrowers
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively,
any and all liabilities, obligations, losses, damages (including natural
resource damages), penalties, actions, judgments, suits, claims (including
Environmental Claims), costs (including costs related to Cleanups), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make the Loans hereunder or the use or intended
use of the proceeds thereof or the issuance of Letters of Credit hereunder or
the use or intended use of any thereof, or any enforcement of any of the Loan
Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Subsidiary Guaranty), (ii) the
statements contained in the commitment letter delivered by any Lender to the
Borrowers with respect thereto, or (iii) the current, former or future
operations of Company or its Subsidiaries, including, but not limited to, the
current, former or future ownership or use of any real property.
<PAGE> 185
To the extent that the undertakings to defend, indemnify, pay
and hold harmless set forth in this subsection 11.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, the
Borrowers shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
22.4 SET-OFF.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by the
Borrowers at any time or from time to time, without notice to the Borrowers or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by that Lender to or for the credit or the account of any
Borrower against and on account of the obligations and liabilities of the
Borrowers to that Lender under this Agreement, the Letters of Credit and
participations therein and the other Loan Documents, including all claims of any
nature or description arising out of or connected with this Agreement, the
Letters of Credit and participations therein or any other Loan Document,
irrespective of whether or not (i) that Lender shall have made any demand
hereunder or (ii) the principal of or the interest on the Loans or any amounts
in respect of the Letters of Credit or any other amounts due hereunder shall
have become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured.
22.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment (other than a voluntary prepayment of Loans
made and applied in accordance with the terms of this Agreement), by realization
upon security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the
<PAGE> 186
Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided that if
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of any Borrower or otherwise, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
The Borrowers expressly consent to the foregoing arrangement and agree that any
holder of a participation so purchased may exercise any and all rights of
banker's lien, set-off or counterclaim with respect to any and all monies owing
by any Borrower to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.
22.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any departure by
the Borrowers therefrom, shall in any event be effective without the written
concurrence of Requisite Lenders; provided that any such amendment,
modification, termination, waiver or consent which: reduces the principal amount
of any of the Loans; changes in any manner the definition of "Pro Rata Share" or
the definition of "Requisite Lenders;" changes in any manner any provision of
this Agreement which, by its terms, expressly requires the approval or
concurrence of all Lenders; postpones the scheduled final maturity date of any
of the Loans (but not the date of any scheduled installment of principal);
postpones the date on which any interest or any fees are payable; decreases the
interest rate borne by any of the Loans (other than any waiver of any increase
in the interest rate applicable to any of the Loans pursuant to subsection 2.2E)
or the amount of any fees payable hereunder; increases the maximum duration of
Interest Periods permitted hereunder; reduces the amount or postpones the due
date of any amount payable in respect of any Letter of Credit; extends the
required expiration date of any Letter of Credit beyond the Revolving Loan
Commitment Termination Date; changes in any manner the obligations of Lenders
relating to the purchase of participations in Letters of Credit; releases any
Lien granted in favor of Administrative Agent with respect to all or
substantially all of the Collateral; releases any Subsidiary Guarantor from its
obligations under the
<PAGE> 187
Subsidiary Guaranty, in each case other than in accordance with the terms of the
Loan Documents; or changes in any manner the provisions contained in subsection
8.1 or this subsection 11.6 shall be effective only if evidenced by a writing
signed by or on behalf of each Lender affected thereby; provided, further, that
no such amendment, modification, termination, waiver or consent shall increase
the Commitments of a Lender over the amount hereof then in effect without the
consent of such Lender; provided, further, that if any matter described in the
first proviso of this subsection 11.6A relates only to (a) all Term Loans, the
approval of all Term Lenders shall be sufficient, and (b) a Revolving Loan or
Revolving Loan Commitment, the approval of all Revolving Lenders shall be
sufficient. In addition, (i) any amendment, modification, termination or waiver
of any of the provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of Administrative Agent and
Requisite Lenders, (ii) no amendment, modification, termination or waiver of any
provision of any Note shall be effective without the written concurrence of the
Lender which is the holder of that Note, (iii) no amendment, modification,
termination or waiver of any Letter of Credit and no amendment, modification,
termination or waiver of Section 3 that changes in any manner the rights and
obligations of an Issuing Lender with respect to an outstanding Letter of Credit
shall be effective without the written concurrence of the Issuing Lender of such
Letter of Credit, (iv) no amendment, modification, termination or waiver of any
provision of Section 9 or of any other provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of any Agent shall be
effective without the written concurrence of such Agent, (v) any amendment,
modification, termination or waiver of any provision of this Agreement that
adversely affects the rights of Lenders holding Loans of any Class differently
than those holding Loans of any other Class shall not be effective without the
written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class (vii) any amendment which
(a) adds a new tranche of term loans to this Agreement, (b) changes the Base
Rate Margin or the Eurocurrency Rate Margin applicable to any Class or (c)
amends the interim amortization of any Class, shall not be effective without the
written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each Class and (viii) no amendment,
modification, termination or waiver of any provision of subsection 2.1A(iii) or
any other provision of this Agreement relating to the Swing Line Loan Commitment
or the Swing Line Loans shall be effective without the written concurrence of
the Swing Line Lender. Each such amendment, modification, waiver or consent
shall indicate with respect to each Lender party thereto whether such Lender is
executing in the capacity of a Requisite Lender and/or as a member of a Class,
with separate signatures with respect to each
<PAGE> 188
such capacity. Administrative Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers to
any other or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 11.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by the Borrowers, on the
Borrowers.
B. REPLACEMENT OF LENDER. If, in connection with any proposed
change, waiver, discharge or termination to any of the provisions of this
Agreement as contemplated by the first proviso contained in the first sentence
of subsection 11.6A, the consent of the Requisite Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then Company shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described in either
clauses (A) or (B) below, to either (A) replace each such non-consenting Lender
or Lenders with one or more Replacement Lenders pursuant to subsection 2.8 so
long as at the time of such replacement each outstanding Loan of each such
Lender being replaced is repaid in full and so long as each such Replacement
Lender consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Commitments and/or repay in full each
outstanding Loan of such Lender, provided that, unless the Commitments that are
terminated, and Loans repaid, pursuant to preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who in
each case must specifically consent thereto), then in the case of any action
pursuant to preceding clause (B) the Requisite Lenders (determined after giving
effect to the proposed action) shall specifically consent thereto; provided,
further, that no Borrower shall have the right to terminate such non-consenting
Lender's Commitments and repay in full its outstanding Loans pursuant to clause
(B) if, immediately after the termination of such Lender's Revolving Loan
Commitment, the Revolving Loan Exposure of all Lenders would exceed the
Revolving Loan Commitments of all Lenders; and provided, further, that in any
event Administrative Agent shall not have the right to replace a Lender,
terminate its Commitments or repay its Loans solely as a result of the exercise
of such Lender's rights (and the withholding of any required consent by such
Lender) pursuant to the second proviso contained in the first sentence of
subsection 11.6A.
<PAGE> 189
22.7 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
22.8 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile or United States
mail or courier service or electronic mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of
telefacsimile or telex or electronic mail, or three Business Days after
depositing it in the United States mail with postage prepaid and properly
addressed; provided that notices to Agents shall not be effective until
received. For the purposes hereof, the address of each party hereto shall be as
set forth under such party's name on the signature pages hereof or (i) as to any
Borrower and any Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
22.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein
shall survive the execution and delivery of this Agreement and the making of the
Loans and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of the Borrowers set forth in subsections
2.6D, 2.7, 3.5A, 3.6, 11.2, 11.3 and 11.4 and the agreements of Lenders set
forth in subsections 9.2C, 9.4 and 11.5 shall to the extent set forth therein
survive the payment of the Loans, the cancellation or expiration of the Letters
of Credit and the reimbursement of any amounts drawn thereunder, and the
termination of this Agreement.
22.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any
<PAGE> 190
such power, right or privilege preclude other or further exercise thereof or of
any other power, right or privilege. All rights and remedies existing under this
Agreement and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
22.11 MARSHALLING; PAYMENTS SET ASIDE.
Neither Administrative Agent nor any Lender shall be under any
obligation to marshal any assets in favor of the Borrowers or any other party or
against or in payment of any or all of the Obligations. To the extent that a
Borrower makes a payment or payments to Administrative Agent or Lenders (or to
Administrative Agent for the benefit of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
22.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
22.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS'
RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
<PAGE> 191
22.14 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
22.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
22.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders (it being understood
that Lenders' rights of assignment are subject to subsection 11.1). None of the
Borrowers' rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Borrower without the prior written consent of all
Lenders.
22.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, IRREVOCABLY
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(ii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED,
<PAGE> 192
TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 11.8;
(iii) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(iv) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(v) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 11.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO
THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
22.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including contract claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship, that each has
already relied on this waiver in entering into this Agreement, and that each
will continue to rely on this waiver in their related future dealings. Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN
<PAGE> 193
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 11.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
22.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with safe
and sound banking practices, if applicable, it being understood and agreed by
the Borrowers that in any event a Lender may make disclosures to the
accountants, auditors, attorneys, and Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein if and to the extent such assignee,
transferee or participant is made aware of the confidential nature of such
non-public information and agrees to be bound by the provisions of this
subsection 11.19 or disclosures required or requested by any governmental agency
or representative thereof or pursuant to legal process or the City Code;
provided that, unless specifically prohibited by applicable law or court order,
each Lender shall notify the Borrowers of any request by any governmental agency
or representative thereof (other than any such request in connection with any
routine compliance examination or examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and provided, further, that
in no event shall any Lender be obligated or required to return any materials
furnished by the Borrowers or any of their Subsidiaries.
22.20 JUDGMENT. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
lawfully do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange
<PAGE> 194
operation for the first currency on the Business Day preceding the day on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with the normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of Agreement Currency so purchased is less than the sum originally due to
such Lender in the Agreement Currency, such Borrower agrees notwithstanding any
such judgment to indemnify such Lender against such loss, and if the amount of
the Agreement Currency so purchased exceeds the sum originally due to any
Lender, such Lender agrees to remit to such Borrower such excess.
22.21 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by the Borrowers
and Administrative Agent of written or telephonic notification of such execution
and authorization of delivery thereof.
<PAGE> 195
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
LINCOLN ELECTRIC HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
Notice Address:
22801 St. Clair Avenue
Cleveland, Ohio 44117-1199
Attention: Chief Financial Officer
(H. Jay Elliott)
Facsimile: (216) 383-4744
THE LINCOLN ELECTRIC COMPANY
By:
---------------------------------
Name:
Title:
Notice Address:
22801 St. Clair Avenue
Cleveland, Ohio 44117-1199
Attention: Chief Financial Officer
(H. Jay Elliott)
Facsimile: (216) 383-4744
<PAGE> 196
LINCOLN ELECTRIC GLOBAL LIMITED
By:
---------------------------------
Name:
Title:
Notice Address:
22801 St. Clair Avenue
Cleveland, Ohio 44117-1199
Attention: Chief Financial Officer
(H. Jay Elliott)
Facsimile: (216) 383-4744
203
<PAGE> 197
CREDIT SUISSE FIRST BOSTON
as Joint Lead Arranger,
Administrative Agent, Collateral
Agent and Bookrunner
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Notice Address:
Eleven Madison Avenue
New York, New York 10010
Attention:
J.P. MORGAN SECURITIES INC.
as Joint Lead Arranger
By:
---------------------------------
Name:
Title:
Notice Address:
60 Wall Street
New York, NY 10260
Attention:
204
<PAGE> 198
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
as Syndication Agent
By:
---------------------------------
Name:
Title:
Notice Address:
60 Wall Street
New York, NY 10260
Attention:
LENDERS:
CREDIT SUISSE FIRST BOSTON
as a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Notice Address:
Eleven Madison Avenue
New York, New York 10010
Attention:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as a Lender
By:
---------------------------------
Name:
Title:
Notice Address:
60 Wall Street
New York, NY 10260
Attention:
205
