SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FEBRUARY 18, 2000
Date of Report (Date of Earliest Event Reported)
GLEASON CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 1-8782 16-1224655
(State or Other Jurisdiction Commission File Number) (IRS Employer
Incorporation or Organization) Identification No.)
1000 UNIVERSITY AVENUE, P.O. BOX 22970, ROCHESTER, NEW YORK 14692
(Address of Principal Executive Office) (Zip Code)
(716) 473-1000
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
ITEM 1. CHANGES IN CONTROL OF REGISTRANT.
On February 18, 2000, Torque Merger Sub, Inc. ("Merger
Subsidiary"), a Delaware corporation and a wholly owned subsidiary of
Torque Acquisition Co., L.L.C. ("Acquisition Company"), a Delaware limited
liability company and a wholly owned subsidiary of Vestar Capital Partners
IV, L.P., and Gleason Corporation, a Delaware corporation (the "Company",
and together with Acquisition Company, the "Purchasers"), accepted for
purchase and payment pursuant to the Purchasers' Offer to Purchase, dated
as of December 15, 1999, and the supplement thereto, dated as of February
4, 2000 (together, the "Offer"), and an Assignment and Assumption
Agreement, dated as of February 17, 2000 (the "Assignment"), all shares of
common stock, par value $1.00 per share, together with the associated
preferred share purchase rights (the "Shares"), of the Company which were
validly tendered and not withdrawn as of the expiration of the Offer at
12:00 midnight, New York City Time, on February 17, 2000, at a purchase
price of $23.00 per Share. Pursuant to the terms of the Offer and the
Assignment, Merger Subsidiary has accepted for payment 4,862,749 Shares,
and the Company has accepted for payment all Shares validly tendered in
excess of such 4,862,749 Shares.
Based on information provided by ChaseMellon Shareholder Services,
L.L.C., the depositary for the Offer, 5,771,399 Shares (including 37,232
Shares tendered pursuant to notices of guaranteed delivery), or
approximately 71.5% of the public Shares available to be tendered, were
validly tendered pursuant to the Offer and not withdrawn.
Pursuant to the terms of an Agreement and Plan of Merger, dated
as of December 8, 1999, as amended (the "Merger Agreement"), by and among
the Company, Acquisition Company and Merger Subsidiary, the Offer will be
followed by a merger between the Company and Merger Subsidiary (the
"Merger"). Pursuant to the Merger, the public stockholders of the Company
who did not tender their Shares in the Offer and who do not seek appraisal
of their Shares pursuant to the applicable provisions of Delaware law will
have their Shares converted into the right to receive the same $23.00 per
Share.
A copy of the press release issued in connection with the
acceptance by the Company and Merger Subsidiary of Shares pursuant to the
Offer is filed herewith as Exhibit 99.3 and is incorporated herein by
reference.
In connection with the Offer and the Merger, the Company and
certain of its subsidiaries have entered into a senior secured credit
facility (the "Senior Credit Facility") in the amount of $250 million with
a syndicate of banks and other lenders arranged and managed by Bankers
Trust Company ("BTCo"), as administrative agent, sole lead arranger and
book manager. The Senior Credit Facility is comprised of (i) $180 million
of term loans to be divided into two primary tranches ("Tranche A Term
Loans" and "Tranche B Term Loans," respectively, and, collectively, the
"Term Loans"), and (ii) $70 million of revolving credit facilities
(collectively, the "Revolving Credit Facility"). The Tranche A Term Loans
are divided into three subtranches and the Tranche B Term Loans are divided
into two subtranches, so that certain borrowings may be incurred by the
Borrowers (as defined herein) using foreign currencies and/or foreign
banks. The borrowers (the "Borrowers") under the Senior Credit Facility
are the following subsidiaries of the Company: The Gleason Works, Gleason
Germany (Holdings ) GmbH, Gleason International Marketing Corporation and
Gleason Works (Holdings) Limited.
The Term Loans have a maturity of six years in the case of
Tranche A Term Loans and eight years in the case of Tranche B Term Loans.
The Revolving Credit Facility has a term of six years and may be used for
working capital and other general corporate purposes of the Company and its
subsidiaries. Of the $70 million total amount of credit extensions
permitted to be outstanding at any time under the Revolving Credit
Facility, up to $40 million may be in the form of loans ("Revolving Credit
Loans") and up to $35 million may be in the form of letters of credit
and/or bank guarantees. The Revolving Credit Facility also contains a
subfacility for swingline loans provided by BTCo. The full amount of the
Revolving Credit Facility is available in U.S. Dollars, Euros, Deutsche
Marks and/or Sterling Pounds. Prior to the later of June 30, 2000 and the
consummation of the Merger, loans outstanding under the Revolving Credit
Facility are limited to $25,000,000 in the aggregate.
In general, loans under the Senior Credit Facility bear interest
at a fluctuating rate per annum equal to the sum of (i) the applicable
LIBOR rate (the applicable EURIBOR rate in the case of loans denominated in
foreign currencies) or, at the Company's election in the case of U.S.
Dollar denominated loans, BTCo's base rate, plus (ii) a margin (A) in the
case of Tranche A Term Loans and Revolving Credit Loans, ranging from 2.00%
to 3.25% (1% to 2.25% in the case of base rate loans), depending on the
ratio (the "Leverage Ratio") from time to time of the Company's
consolidated total indebtedness (defined to exclude letters of credit and
bank guaranties, unless drawn upon) to consolidated EBITDA for the trailing
four quarters, and (B) in the case of Tranche B Term Loans, equal to 3.50%.
The initial margin for Tranche A Term Loans and Revolving Credit Loans is
3.00% (2.00% in the case of any such loans that are base rate loans).
In addition, the Company and the Borrowers will pay certain fees
in connection with the Senior Credit Facility, including, without
limitation, (i) agency fees and (ii) commitment fees. The commitment fees
accrue on the unutilized total commitments under the Revolving Credit
Facility at a per annum rate ranging from 0.50% and 0.375% depending on the
Leverage Ratio and is initially 0.50%.
Merger Subsidiary and Acquisition Company have entered into a
senior secured credit facility (the "Merger Sub Credit Facility") in the
amount of up to $61.5 million with a syndicate of banks and other lenders
arranged and managed by BTCo, as administrative agent, sole lead arranger
and book manager. The Merger Sub Credit Facility is comprised solely of
term loans (the "Merger Sub Loans").
The proceeds of the approximately $58.5 million of Merger Sub
Loans incurred on the closing date were used to fund the Tender Offer. The
proceeds of loans incurred after the closing date shall only be used to
pay interest on previously outstanding Merger Sub Loans and commitment
fees. The Merger Sub Loans have a maturity date that is the earlier of (i)
the date of the consummation of the Merger and (ii) the 180th day
following the date of the initial borrowing under the Merger Sub Credit
Facility. To the extent repaid, the Merger Sub Loans may not be
reborrowed. Merger Sub Loans bear interest at a fluctuating rate per annum
equal to the sum of (i) the applicable LIBOR rate or, at Merger
Subsidiary's election, BTCo's base rate, plus (ii) a margin of (A) 3.50%
in the case of LIBOR loans and (B) 2.50% in the case of base rate loans.
In addition, Merger Subsidiary will pay commitment fees that
accrue on the unutilized total commitments under the Merger Sub Credit
Facility at a per annum rate of 0.50%.
Copies of the Senior Credit Facility and the Merger Sub Credit
Facility are filed herewith as Exhibits 99.1 and 99.2, respectively, and
are incorporated herein by reference.
.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
No. Description
--- -----------
99.1 Credit Agreement, dated as of February 17, 2000, among
Gleason Corporation, The Gleason Works, Gleason Germany
(Holdings) GmbH, Gleason Works (Holdings) Limited, Gleason
International Marketing Corporation, Various Banks, Bankers
Trust Company, as Administrative Agent, Lead Arranger and
Book Manager, and The Bank of Nova Scotia, as Syndication
Agent.
99.2 Credit Agreement, dated as of February 17, 2000, among
Torque Acquisition Co., L.L.C., Torque Merger Sub, Inc.,
Various Banks, Bankers Trust Company, as Administrative
Agent, Lead Arranger and Book Manager, and The Bank of Nova
Scotia, as Syndication Agent.
99.3 Text of Press Release of Gleason Corporation, dated February
18, 2000.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: February 23, 2000
GLEASON CORPORATION
By: /s/ Edward J. Pelta
------------------------------
Name: Edward J. Pelta
Title: Vice President, General
Counsel and Secretary
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
-------- -----------
99.1 Credit Agreement, dated as of February 17, 2000, among
Gleason Corporation, The Gleason Works, Gleason Germany
(Holdings) GmbH, Gleason Works (Holdings) Limited, Gleason
International Marketing Corporation, Various Banks, Bankers
Trust Company, as Administrative Agent, Lead Arranger and
Book Manager, and The Bank of Nova Scotia, as Syndication
Agent.
99.2 Credit Agreement, dated as of February 17, 2000, among
Torque Acquisition Co., L.L.C., Torque Merger Sub, Inc.,
Various Banks, Bankers Trust Company, as Administrative
Agent, Lead Arranger and Book Manager, and The Bank of Nova
Scotia, as Syndication Agent.
99.3 Text of Press Release of Gleason Corporation, dated February
18, 2000.
Exhibit 99.1
==============================================================================
CREDIT AGREEMENT
among
GLEASON CORPORATION,
THE GLEASON WORKS,
GLEASON GERMANY (HOLDINGS) GmbH,
GLEASON WORKS (HOLDINGS) LIMITED,
GLEASON INTERNATIONAL MARKETING CORPORATION,
VARIOUS BANKS,
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT,
LEAD ARRANGER AND BOOK MANAGER
and
THE BANK OF NOVA SCOTIA,
as SYNDICATION AGENT
-------------------------------------------
Dated as of February 17, 2000
-------------------------------------------
$250,000,000
==============================================================================
DEUTSHE BANK LUXEMBORG S.A.,
AS AN ADDITIONAL ADMINISTRATIVE AGENT
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
SECTION 1. Amount and Terms of Credit....................................................1
1.01 The Commitments...............................................................1
1.02 Minimum Amount of Each Borrowing..............................................7
1.03 Notice of Borrowing...........................................................7
1.04 Disbursement of Funds.........................................................8
1.05 Notes.........................................................................9
1.06 Conversions..................................................................12
1.07 Pro Rata Borrowings..........................................................13
1.08 Interest.....................................................................13
1.09 Interest Periods.............................................................14
1.10 Increased Costs, Illegality, etc.............................................15
1.11 Compensation.................................................................19
1.12 Lending Offices; Changes Thereto.............................................19
1.13 Replacement of Banks.........................................................20
1.14 Limitations on Additional Amounts, etc.......................................21
1.15 Covenant to Pay..............................................................21
SECTION 2. Letters of Credit and Bank Guarantees........................................21
2.01 Letters of Credit and Bank Guarantees........................................21
2.02 Letter of Credit Requests; Notices of Issuance...............................23
2.03 Letter of Credit Participations..............................................24
2.04 Agreement to Repay Letter of Credit Drawings.................................27
2.05 Increased Costs..............................................................28
2.06 Minimum Stated Amount........................................................29
SECTION 3. Commitment Commission; Fees; Reductions of Commitment........................29
3.01 Fees.........................................................................29
3.02 Voluntary Termination of Total Unutilized Revolving Loan Commitment..........31
3.03 Mandatory Reduction of Commitments...........................................31
SECTION 4. Prepayments; Payments; Taxes.................................................32
4.01 Voluntary Prepayments........................................................32
4.02 Mandatory Repayments.........................................................33
4.03 Method and Place of Payment..................................................42
4.04 Net Payments; Taxes..........................................................43
SECTION 5. Conditions Precedent.........................................................46
5.01 Execution of Agreement; Notes................................................46
5.02 No Default; Representations and Warranties...................................46
5.03 Officer's Certificate........................................................46
5.04 Opinions of Counsel..........................................................46
5.05 Corporate Documents; Proceedings.............................................47
5.06 Shareholders' Agreements; Management Agreements; Employment
Agreements; and Affiliate Contracts..........................................47
5.07 Consummation of the Transaction..............................................48
5.08 Pledge Agreements............................................................50
5.09 Security Agreement...........................................................50
5.10 Subsidiary Guaranty..........................................................51
5.11 Material Adverse Change, etc.................................................51
5.12 Litigation...................................................................51
5.13 Fees, etc....................................................................51
5.14 Insurance....................................................................52
5.15 Approvals....................................................................52
5.16 Financial Statements; Projections; Management Letter Reports.................52
5.17 Solvency Certificate.........................................................53
5.18 Mortgages; Title Insurance; Surveys; etc.....................................53
SECTION 6. Representations and Warranties...............................................54
6.01 Status.......................................................................54
6.02 Power and Authority..........................................................54
6.03 No Violation.................................................................55
6.04 Governmental Approvals.......................................................55
6.05 Financial Statements; Financial Condition; Undisclosed Liabilities...........55
6.06 Litigation...................................................................56
6.07 True and Complete Disclosure.................................................56
6.08 Use of Proceeds; Margin Regulations..........................................57
6.09 Tax Returns and Payments.....................................................58
6.10 ERISA........................................................................58
6.11 The Security Documents.......................................................60
6.12 Properties...................................................................60
6.13 Capitalization...............................................................61
6.14 Subsidiaries.................................................................61
6.15 Compliance with Statutes, etc................................................61
6.16 Investment Company Act.......................................................61
6.17 Public Utility Holding Company Act...........................................61
6.18 Environmental Matters........................................................61
6.19 Labor Relations..............................................................62
6.20 Intellectual Property........................................................62
6.21 Indebtedness.................................................................62
6.22 Transaction..................................................................63
6.23 Representations and Warranties in Documents..................................63
6.24 Special Purpose Corporation..................................................63
6.25 Insurance....................................................................63
6.26 Year 2000....................................................................63
SECTION 7. Affirmative Covenants........................................................63
7.01 Information Covenants........................................................63
7.02 Books, Records and Inspections...............................................66
7.03 Maintenance of Property; Insurance...........................................67
7.04 Franchises, etc..............................................................67
7.05 Compliance with Statutes, etc................................................68
7.06 Compliance with Environmental Laws...........................................68
7.07 ERISA........................................................................69
7.08 End of Fiscal Years; Fiscal Quarters.........................................70
7.09 Performance of Obligations...................................................71
7.10 Payment of Taxes.............................................................71
7.11 Additional Mortgages; Further Assurances.....................................71
7.12 Foreign Subsidiaries Security................................................72
7.13 Ownership of Subsidiaries....................................................73
7.14 Permitted Acquisitions.......................................................73
7.15 Interest Rate Protection.....................................................74
7.16 Consummation of the Merger...................................................74
SECTION 8. Negative Covenants...........................................................74
8.01 Liens........................................................................74
8.02 Consolidation, Merger, Sale of Assets, etc...................................77
8.03 Dividends....................................................................78
8.04 Indebtedness.................................................................80
8.05 Advances, Investments, Loans, Purchase of Assets.............................81
8.06 Transactions with Affiliates.................................................83
8.07 Maximum Capital Expenditures.................................................84
8.08 Leverage Ratio...............................................................85
8.09 Interest Coverage Ratio......................................................86
8.10 Modifications of Certain Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Agreements; etc............86
8.11 Limitation on Certain Restrictions on Subsidiaries...........................87
8.12 Limitation on Issuance of Equity.............................................87
8.13 Business.....................................................................88
8.14 Limitation on the Creation of Subsidiaries...................................88
SECTION 9. Events of Default
9.01 Payments.....................................................................89
9.02 Representations, etc.........................................................89
9.03 Covenants....................................................................89
9.04 Default Under Other Agreements...............................................89
9.05 Bankruptcy, etc..............................................................90
9.06 ERISA........................................................................90
9.07 Security Documents...........................................................91
9.08 Guaranties...................................................................91
9.09 Judgments....................................................................92
9.10 Change of Control............................................................92
SECTION 10. Definitions and Accounting Terms.............................................92
10.01 Defined Terms................................................................92
SECTION 11. The Administrative Agent....................................................131
11.01 Appointment.................................................................131
11.02 Nature of Duties............................................................131
11.03 Lack of Reliance on the Administrative Agent................................132
11.04 Certain Rights of the Administrative Agent..................................132
11.05 Reliance....................................................................132
11.06 Indemnification.............................................................132
11.07 The Administrative Agent in its Individual Capacity.........................133
11.08 Holders.....................................................................133
11.09 Resignation by the Administrative Agent.....................................133
11.10 Documentation Agent; Syndication Agent......................................134
SECTION 12. Holdings Guaranty...........................................................134
12.01 The Guaranty................................................................134
12.02 Bankruptcy..................................................................135
12.03 Nature of Liability.........................................................135
12.04 Guaranty Absolute...........................................................135
12.05 Independent Obligation......................................................135
12.06 Authorization...............................................................135
12.07 Reliance....................................................................136
12.08 Subordination...............................................................136
12.09 Waivers.....................................................................137
12.10 Guaranty Continuing.........................................................137
12.11 Binding Nature of Guaranties................................................138
12.12 Judgments Binding...........................................................138
SECTION 13. GWR Guaranty................................................................138
13.01 The Guaranty................................................................138
13.02 Bankruptcy..................................................................139
13.03 Nature of Liability.........................................................139
13.04 Guaranty Absolute...........................................................139
13.05 Independent Obligation......................................................139
13.06 Authorization...............................................................140
13.07 Reliance....................................................................140
13.08 Subordination...............................................................141
13.09 Waivers.....................................................................141
13.10 Guaranty Continuing.........................................................142
13.11 Binding Nature of Guaranties................................................142
13.12 Judgments Binding...........................................................142
SECTION 14. Miscellaneous...............................................................142
14.01 Payment of Expenses, etc....................................................142
14.02 Right of Setoff.............................................................144
14.03 Notices.....................................................................144
14.04 Benefit of Agreement........................................................145
14.05 No Waiver; Remedies Cumulative..............................................147
14.06 Payments Pro Rata...........................................................147
14.07 Calculations; Computations..................................................148
14.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL........................................................149
14.09 Counterparts................................................................149
14.10 Effectiveness...............................................................150
14.11 Headings Descriptive........................................................150
14.12 Amendment or Waiver.........................................................150
14.13 Confidentiality.............................................................151
14.14 Register....................................................................152
14.15 Judgment Currency...........................................................152
14.16 Euro........................................................................153
14.17 Special Provisions Regarding Pledges of Equity Interests in, and Promissory
Notes Owed by, Persons Not Organized in the United States, Germany
and the United Kingdom......................................................153
14.18 Representations and Covenants of German Banks...............................154
</TABLE>
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Insurance
SCHEDULE IV Real Property
SCHEDULE V ERISA
SCHEDULE VI Convertible Securities, Options or Rights
SCHEDULE VII Subsidiaries
SCHEDULE VIII Existing Indebtedness
SCHEDULE IX Existing Liens
SCHEDULE X Existing Investments
SCHEDULE XI Permitted Affiliate Transactions
SCHEDULE XII Mandatory Costs
SCHEDULE XIII Taxes
SCHEDULE XIV Existing Letters of Credit
SCHEDULE XV Transaction Litigation
SCHEDULE XVI Intercompany Reorganization
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of A-1 Term Note
EXHIBIT B-2 Form of A-2 Term Note
EXHIBIT B-3 Form of A-3 Term Note
EXHIBIT B-4 Form of B-1 Term Note
EXHIBIT B-5 Form of B-2 Term Note
EXHIBIT B-6 Form of Tranche 1 Revolving Note
EXHIBIT B-7 Form of Tranche 2 Revolving Note
EXHIBIT B-8 Form of Tranche 1 Swingline Note
EXHIBIT B-9 Form of Tranche 2 Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP (New York)
EXHIBIT E-2 Form of Opinion of Edward J. Pelta
EXHIBIT E-3 Form of Opinion of Beiten Burkhardt Mittl
& Wegener
EXHIBIT E-4 Form of Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP (London)
EXHIBIT E-5 Form of Opinion of White & Case LLP
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of Solvency Certificate
EXHIBIT H-1 Form of U.S. Pledge Agreement
EXHIBIT H-2 Form of German Pledge Agreement 1
EXHIBIT H-3 Form of German Pledge Agreement 2
EXHIBIT H-4 Form of German Pledge Agreement 3
EXHIBIT H-5 Form of U.K. Pledge Agreement 1
EXHIBIT H-6 Form of U.K. Pledge Agreement 2
EXHIBIT I Form of Security Agreement
EXHIBIT J Form of Subsidiary Guaranty
EXHIBIT K Form of Intercompany Note
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of Shareholder Subordinated Note
EXHIBIT N Form of German Tax Certificate
CREDIT AGREEMENT, dated as of February 17, 2000 among
GLEASON CORPORATION, a Delaware corporation ("Holdings"), THE GLEASON
WORKS, a New York corporation ("GWR"), GLEASON GERMANY (HOLDINGS) GmbH
("GGH"), a corporation organized under the laws of the Federal Republic of
Germany, GLEASON WORKS (HOLDINGS) LIMITED (Registered No. 02985193)
("GWH"), a corporation incorporated under the laws of England and Wales,
GLEASON INTERNATIONAL MARKETING CORPORATION, a Delaware corporation
("GIMC"), the Banks party hereto from time to time, BANKERS TRUST COMPANY
and DEUTSCHE BANK LUXEMBOURG S.A., as Administrative Agent, Lead Arranger
and Book Manager, and THE BANK OF NOVA SCOTIA, as Syndication Agent (the
"Syndication Agent") (all capitalized terms used herein and defined in
Section 10 are used herein as therein defined).
W I T N E S S E T H:
-------------------
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrowers the
respective credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
--------------------------
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with an A-1 Term Loan Commitment
severally agrees to make term loans (each an "A-1 Term Loan" and
collectively, the "A-1 Term Loans") to GWR, which A-1 Term Loans shall (i)
at the option of GWR, be incurred and maintained as, and/or converted into,
Base Rate Loans or one or more Borrowings of Eurodollar Loans having such
Interest Periods as are selected by GWR pursuant to Section 1.09, provided
that prior to the Syndication Date, A-1 Term Loans may only be incurred and
maintained as or converted into Eurodollar Loans if the Interest Period in
respect of such Eurodollar Loans is a Pre-Syndication Interest Period, (ii)
be made and maintained in Dollars, (iii) be made on two separate dates,
with an aggregate amount of A-1 Term Loans to be made on the Initial
Borrowing Date equal to (x) an amount equal to (A) the sum of the Total A-1
Term Loan Commitment plus the Total B-1 Term Loan Commitment minus (B)
$61,500,000, multiplied by (y) a fraction the numerator of which is the
Total A-1 Term Loan Commitment on the Effective Date and the denominator of
which is the sum of the Total A-1 Term Loan Commitment and the Total B-1
Term Loan Commitment on the Effective Date, and an aggregate amount equal
to the remainder of the A-1 Term Loans to be made on the Merger Date,
provided that if 6,135,061 or more shares of Holdings Common Stock are
tendered pursuant to the Tender Offer (and the Torque Credit Agreement
terminates undrawn in accordance with its terms), then all A-1 Term Loans
shall be made on the Initial Borrowing Date, and (iv) not exceed for any
Bank, in initial aggregate principal amount, that amount which equals the
A-1 Term Loan Commitment of such Bank at the time of incurrence thereof
(before giving effect to any reductions thereto on such date pursuant to
Section 3.03(a)). Once repaid, A-1 Term Loans incurred hereunder may not be
reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each German Bank with an A-2 Term Loan Commitment severally agrees
to make on the Initial Borrowing Date a term loan or term loans (each an
"A-2 Term Loan" and collectively, the "A-2 Term Loans") to GGH, which A-2
Term Loans shall (i) be made and maintained in Euros, (ii) be made and
maintained only by German Banks, (iii) at the option of GGH, be incurred
and maintained as, and/or converted into, one or more Borrowings of A-2
Loans having such Interest Periods as are selected by GGH pursuant to
Section 1.09, provided that prior to the Syndication Date all A-2 Term
Loans shall have Interest Periods which are Pre-Syndication Interest
Periods, and (iv) not exceed for any German Bank, in initial aggregate
principal amount, that amount which equals the A-2 Term Loan Commitment of
such German Bank at the time of incurrence thereof (before giving effect to
any reductions thereto on such date pursuant to Section 3.03(a)). Once
repaid, A-2 Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Bank with an A-3 Term Loan Commitment severally agrees to make
on a single date occurring on or within one Business Day following the
Initial Borrowing Date a term loan or term loans (each an "A-3 Term Loan"
and collectively, the "A-3 Term Loans") to GWH, which A-3 Term Loans shall
(i) be made and maintained in Pounds Sterling, (ii) at the option of GWH,
be incurred and maintained as, and/or converted into, one or more
Borrowings of A-3 Term Loans having such Interest Periods as are selected
by GWH pursuant to Section 1.09, provided that prior to the Syndication
Date, all A-3 Term Loans shall have Interest Periods which are
Pre-Syndication Interest Periods, and (iii) not exceed for any Bank, in
initial aggregate principal amount, that amount which equals the A-3 Term
Loan Commitment of such Bank at the time of incurrence thereof (before
giving effect to any reductions thereto on such date pursuant to Section
3.03(a)). Once repaid, A-3 Term Loans incurred hereunder may not be
reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Bank with a B-1 Term Loan Commitment severally agrees to make
term loans (each a "B-1 Term Loan" and, collectively, the "B-1 Term Loans")
to GWR, which B-1 Term Loans shall (i) be made and maintained in Dollars,
(ii) at the option of GWR, be incurred and maintained as, and/or converted
into, Base Rate Loans or one or more Borrowings of Eurodollar Loans having
such Interest Periods as are selected by GWR pursuant to Section 1.09,
provided that prior to the Syndication Date, B-1 Term Loans may only be
incurred and maintained as or converted into Eurodollar Loans if the
Interest Period in respect of such Eurodollar Loans is a Pre-Syndication
Interest Period, (iii) be made on two separate dates, with an aggregate
amount of B-1 Term Loans to be made on the Initial Borrowing Date equal to
(x) an amount equal to (A) the sum of the Total A-1 Term Loan Commitment
plus the Total B-1 Term Loan Commitment minus (B) $61,500,000, multiplied
by (y) a fraction the numerator of which is the Total B-1 Term Loan
Commitment on the Effective Date and the denominator of which is the sum of
the Total A-1 Term Loan Commitment and the Total B-1 Term Loan Commitment
on the Effective Date, and an aggregate amount equal to the remainder of
B-1 Term Loans to be made on the Merger Date, provided that if 6,135,061 or
more shares of Holdings Common Stock are tendered pursuant to the Tender
Offer (and the Torque Credit Agreement terminates undrawn in accordance
with its terms), then all B-1 Term Loans shall be made on the Initial
Borrowing Date, and (iv) not exceed for any Bank, in initial aggregate
principal amount, that amount which equals the B-1 Term Loan Commitment of
such Bank at the time of incurrence thereof (before giving effect to any
reductions thereto on such date pursuant to Section 3.03(a)). Once repaid,
B-1 Term Loans incurred hereunder may not be reborrowed.
(e) Subject to and upon the terms and conditions set forth
herein, each German Bank with a B-2 Term Loan Commitment severally agrees
to make on the Initial Borrowing Date, a term loan or term loans (each a
"B-2 Term Loan" and, collectively, the "B-2 Term Loans") to GGH, which B-2
Term Loans shall (i) be made and maintained in Euros, (ii) be made and
maintained only by German Banks, (iii) at the option of GGH, be incurred
and maintained as, and/or converted into, one or more Borrowings of B-2
Term Loans having such Interest Periods as are selected by GGH pursuant to
Section 1.09, provided that prior to the Syndication Date all B-2 Term
Loans shall have Interest Periods which are Pre-Syndication Interest
Periods and (iv) not exceed for any German Bank, in initial aggregate
principal amount, that amount which equals the B-2 Term Loan Commitment of
such German Bank at the time of incurrence thereof (before giving effect to
any reductions thereto on such date pursuant to Section 3.03(a)). Once
repaid, B-2 Term Loans incurred hereunder may not be reborrowed.
(f) Subject to and upon the terms and conditions set forth
herein, each Bank with a Tranche 1 Revolving Loan Commitment severally
agrees to make to one or more of the Borrowers (on a several basis) at any
time and from time to time on or after the Initial Borrowing Date and prior
to the Revolving Loan Maturity Date, a loan or loans (each a "Tranche 1
Revolving Loan" and collectively the "Tranche 1 Revolving Loans"), which
Tranche 1 Revolving Loans (i) shall be made and maintained in such Approved
Currency as is requested by the applicable Borrower, (ii) if denominated in
Dollars, at the option of the applicable Borrower, shall be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar Loans,
provided that only Dollar denominated Tranche 1 Revolving Loans incurred by
GWR and GIMC may be maintained as and/or converted into Base Rate Loans,
(iii) if denominated in an Alternate Currency, at the option of the
applicable Borrower, shall be incurred and maintained as, and/or converted
into, one or more Borrowings of Tranche 1 Revolving Loans, (iv) if Dollar
denominated Eurodollar Loans or Alternate Currency Loans, shall have such
Interest Periods as are selected by the applicable Borrower pursuant to
Section 1.09, provided that prior to the Syndication Date all such Tranche
1 Revolving Loans shall have Interest Periods which are Pre-Syndication
Interest Periods, (v) may be repaid and reborrowed in accordance with the
provisions hereof, (vi) shall not exceed (immediately after giving effect
to the making thereof and the use of the proceeds thereof) for any Bank
that aggregate Principal Amount which, when added to the sum of (x) the
aggregate Principal Amount of all other Tranche 1 Revolving Loans made by
such Bank and then outstanding and (y) the product of (A) such Bank's
Tranche 1 Revolving Percentage and (B) the sum of (1) the aggregate amount
of all Tranche 1 Letter of Credit Outstandings (exclusive of Unpaid
Drawings in respect of Tranche 1 Letters of Credit which are repaid with
the proceeds of, and simultaneously with the incurrence of, Tranche 1
Revolving Loans) at such time and (2) the aggregate Principal Amount of all
Tranche 1 Swingline Loans (exclusive of Tranche 1 Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Tranche 1 Revolving Loans) then outstanding,
equals the Tranche 1 Revolving Loan Commitment of such Bank at such time
and (vii) shall not exceed (immediately after giving effect to the making
thereof and the use of the proceeds thereof) for all Banks that aggregate
Principal Amount which, when added to the sum of (x) the aggregate
Principal Amount of all Tranche 1 Swingline Loans (exclusive of Tranche 1
Swingline Loans which are repaid with the proceeds of, and simultaneously
with the incurrence of, the respective incurrence of Tranche 1 Revolving
Loans) then outstanding and (y) the aggregate Principal Amount of all
Tranche 2 Revolving Loans and Tranche 2 Swingline Loans then outstanding,
equals $40,000,000 (or, on or prior to June 30, 2000, $25,000,000).
(g) Subject to and upon the terms and conditions set forth
herein, each German Bank with a Tranche 2 Revolving Loan Commitment
severally agrees to make to one or more of the Borrowers (on a several
basis) at any time and from time to time on or after the Initial Borrowing
Date and prior to the Revolving Loan Maturity Date, a loan or loans (each a
"Tranche 2 Revolving Loan" and collectively the "Tranche 2 Revolving
Loans") which Tranche 2 Revolving Loans (i) shall be made and maintained
only by German Banks, (ii) shall be made and maintained in such Approved
Currency as is requested by the applicable Borrower, (iii) shall be
incurred and maintained as Eurodollar Loans, (iv) if denominated in an
Alternate Currency, at the option of the applicable Borrower, shall be
incurred and maintained, as and/or converted into, one or more Borrowings
of Tranche 2 Revolving Loans, (v) shall have such Interest Periods as are
selected by the applicable Borrower pursuant to Section 1.09, provided that
prior to the Syndication Date all such Tranche 2 Revolving Loans shall have
Interest Periods which are Pre-Syndication Interest Periods, (vi) may be
repaid and reborrowed in accordance with the provisions hereof, (vii) shall
not exceed (immediately after giving effect to the making thereof and the
use of the proceeds thereof) for any Bank that aggregate Principal Amount
which, when added to the sum of (x) the aggregate Principal Amount of all
other Tranche 2 Revolving Loans made by such Bank and then outstanding and
(y) the product of (A) such Bank's Tranche 2 Revolving Percentage and (B)
the sum of (1) the aggregate amount of all Tranche 2 Letter of Credit
Outstandings (exclusive of Unpaid Drawings in respect of Tranche 2 Letters
of Credit which are repaid with the proceeds of, and simultaneously with
the incurrence of, Tranche 2 Revolving Loans) at such time and (2) the
aggregate Principal Amount of all Tranche 2 Swingline Loans (exclusive of
Tranche 2 Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Tranche
2 Revolving Loans) then outstanding, equals the Tranche 2 Revolving Loan
Commitment of such Bank at such time and (viii) shall not exceed
(immediately after giving effect to the making thereof and the use of the
proceeds thereof) for all Banks that aggregate Principal Amount which, when
added to the sum of (x) the aggregate Principal Amount of all Tranche 2
Swingline Loans (exclusive of Tranche 2 Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Tranche 2 Revolving Loans) then outstanding and
(y) the aggregate Principal Amount of all Tranche 1 Revolving Loans and
Tranche 1 Swingline Loans then outstanding, equals $40,000,000 (or, on or
prior to June 30, 2000, $25,000,000).
(h) (A) Subject to and upon the terms and conditions set
forth herein, the Swingline Bank agrees to make at any time and from time
to time after the Initial Borrowing Date and prior to the Swingline Expiry
Date, a loan or loans to GWR and/or GIMC (on a several basis) (each, a
"Tranche 1 Swingline Loan" and, collectively, the "Tranche 1 Swingline
Loans"), which Tranche 1 Swingline Loans (v) shall be made and maintained
in Dollars and as Base Rate Loans, (w) may be repaid and reborrowed in
accordance with the provisions hereof, (x) shall not exceed (immediately
after giving effect to any incurrence thereof and the use of the proceeds
of such incurrence) in aggregate Principal Amount that amount which, when
combined with the aggregate Principal Amount of all Tranche 1 Revolving
Loans then outstanding and the Tranche 1 Letter of Credit Outstandings at
such time, equals the Total Tranche 1 Revolving Loan Commitment then in
effect (after giving effect to any changes thereto on such date), (y) shall
not exceed (immediately after giving effect to any incurrence thereof and
the use of the proceeds of such incurrence) in aggregate Principal Amount
that amount which, when combined with the aggregate Principal Amount of all
Tranche 1 Revolving Loans then outstanding and the aggregate Principal
Amount of all Tranche 2 Revolving Loans and Tranche 2 Swingline Loans then
outstanding, equals $40,000,000 (or, on or prior to June 30, 2000,
$25,000,000) and (z) shall not exceed in aggregate Principal Amount at any
time outstanding that Principal Amount which, when combined with the
aggregate Principal Amount of all Tranche 2 Swingline Loans then
outstanding, equals the Maximum Swingline Amount. The Swingline Bank shall
not be obligated to make any Tranche 1 Swingline Loans at a time when a
Bank Default exists unless the Swingline Bank has entered into arrangements
satisfactory to it and such Borrower to eliminate the Swingline Bank's risk
with respect to Defaulting Bank's or Banks' Tranche 1 Revolving Percentage
of the outstanding Tranche 1 Swingline Loans. The Swingline Bank will not
make a Tranche 1 Swingline Loan after it has received written notice from
any Borrower or the Required Banks stating that a Default or an Event of
Default exists until such time as the Swingline Bank shall have received a
written notice of (i) rescission of such notice from the party or parties
originally delivering the same or (ii) a waiver of such Default or Event of
Default from the Required Banks (or all of the Banks, to the extent
required under Section 14.12).
(B) On any Business Day the Swingline Bank may, in its sole
discretion, give notice to the Tranche 1 RC Banks that its outstanding
Tranche 1 Swingline Loans shall be repaid with a Borrowing of Tranche 1
Revolving Loans (provided that each such notice shall be deemed to have
been automatically given upon the occurrence of an Event of Default under
Section 9.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 9), in which case a Borrowing of Tranche 1
Revolving Loans by GWR denominated in Dollars and constituting Base Rate
Loans (each such Borrowing, a "Tranche 1 Mandatory Borrowing") shall be
made on the immediately succeeding Business Day by all Tranche 1 RC Banks
pro rata based on each Tranche 1 RC Bank's Tranche 1 Revolving Percentage,
and the proceeds thereof shall be applied directly to repay the Swingline
Bank for such outstanding Tranche 1 Swingline Loans. Each Tranche 1 RC Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's
notice pursuant to each Tranche 1 Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the date specified in
writing by the Swingline Bank notwithstanding: (v) that the amount of the
Tranche 1 Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (w) whether any conditions specified
in Section 5.02 are then satisfied, (x) whether a Default or an Event of
Default has occurred and is continuing, (y) the date of such Tranche 1
Mandatory Borrowing and (z) the amount of the Total Tranche 1 Revolving
Loan Commitment at such time. In the event that any Tranche 1 Mandatory
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of any Borrower), each
Tranche 1 RC Bank (other than the Swingline Bank) shall forthwith purchase
from the Swingline Bank (without recourse or warranty) such assignment of
or participation in the outstanding Tranche 1 Swingline Loans as shall be
necessary to cause such Tranche 1 RC Banks to share in such Tranche 1
Swingline Loans ratably based upon their respective Tranche 1 Revolving
Percentages, provided that all interest payable on the Tranche 1 Swingline
Loans shall be for the account of the Swingline Bank until the date the
respective assignment or participation is purchased and, to the extent
attributable to the purchased assignment or participation, shall be payable
to the Tranche 1 RC Bank purchasing same from and after such date of
purchase.
(i) (A) Subject to and upon the terms and conditions set
forth herein, the Swingline Bank agrees to make at any time and from time
to time after the Initial Borrowing Date and prior to the Swingline Expiry
Date, a loan or loans to GWR and/or GIMC (on a several basis) (each, a
"Tranche 2 Swingline Loan" and, collectively, the "Tranche 2 Swingline
Loans"), which Tranche 2 Swingline Loans (v) shall be made and maintained
in Dollars and as Base Rate Loans, (w) may be repaid and reborrowed in
accordance with the provisions hereof, (x) shall not exceed (immediately
after giving effect to any incurrence thereof and the use of the proceeds
of such incurrence) in aggregate Principal Amount that amount which, when
combined with the aggregate Principal Amount of all Tranche 2 Revolving
Loans then outstanding and the Tranche 2 Letter of Credit Outstanding at
such time, equals the Total Tranche 2 Revolving Loan Commitment then in
effect (after giving effect to any changes thereto on such date), (y) shall
not exceed (immediately after giving effect to any incurrence thereof and
the use of the proceeds of such incurrence) in aggregate Principal Amount
that amount which, when combined with the aggregate Principal Amount of all
Tranche 2 Revolving Loans then outstanding and the aggregate Principal
Amount of all Tranche 1 Revolving Loans and Tranche 1 Revolving Loans then
outstanding, equals $40,000,000 (or, on or prior to June 30, 2000,
$25,000,000) and (z) shall not exceed in aggregate Principal Amount at any
time outstanding that Principal Amount which, when combined with the
aggregate Principal Amount of all Tranche 1 Swingline Loans then
outstanding, equals the Maximum Swingline Amount. The Swingline Bank shall
not be obligated to make any Tranche 2 Swingline Loans at a time when a
Bank Default exists unless the Swingline Bank has entered into arrangements
satisfactory to it and such Borrower to eliminate the Swingline Bank's risk
with respect to Defaulting Bank's or Banks' Tranche 2 Revolving Percentage
of the outstanding Tranche 2 Swingline Loans. The Swingline Bank will not
make a Tranche 2 Swingline Loan after it has received written notice from
any Borrower or the Required Banks stating that a Default or an Event of
Default exists until such time as the Swingline Bank shall have received a
written notice of (i) rescission of such notice from the party or parties
originally delivering the same or (ii) a waiver of such Default or Event of
Default from the Required Banks (or all of the Banks, to the extent
required under Section 14.12).
(B) On any Business Day the Swingline Bank may, in its
sole discretion, give notice to the Tranche 2 RC Banks that its outstanding
Tranche 2 Swingline Loans shall be repaid with a Borrowing of Tranche 2
Revolving Loans (provided that each such notice shall be deemed to have
been automatically given upon the occurrence of an Event of Default under
Section 9.05 or upon the exercise of any of the remedies provided in the
last paragraph of Section 9), in which case a Borrowing of Tranche 2
Revolving Loans by GWR denominated in Dollars and constituting Base Rate
Loans (each such Borrowing, a "Tranche 2 Mandatory Borrowing") shall be
made on the immediately succeeding Business Day by all Tranche 2 RC Banks
pro rata based on each Tranche 2 RC Bank's Tranche 2 Revolving Percentage,
and the proceeds thereof shall be applied directly to repay the Swingline
Bank for such outstanding Tranche 2 Swingline Loans. Each Tranche 2 RC Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's
notice pursuant to each Tranche 2 Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence and on the date specified in
writing by the Swingline Bank notwithstanding: (v) that the amount of the
Tranche 2 Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (w) whether any conditions specified
in Section 5.02 are then satisfied, (x) whether a Default or an Event of
Default has occurred and is continuing, (y) the date of such Tranche 2
Mandatory Borrowing and (z) the amount of the Total Tranche 2 Revolving
Loan Commitment at such time. In the event that any Tranche 2 Mandatory
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of any Borrower), each
Tranche 2 RC Bank (other than the Swingline Bank) shall forthwith purchase
from the Swingline Bank (without recourse or warranty) such assignment of
or participation in the outstanding Tranche 2 Swingline Loans as shall be
necessary to cause such Tranche 2 RC Banks to share in such Tranche 2
Swingline Loans ratably based upon their respective Tranche 2 Revolving
Percentages, provided that all interest payable on the Tranche 2 Swingline
Loans shall be for the account of the Swingline Bank until the date the
respective assignment or participation is purchased and, to the extent
attributable to the purchased assignment or participation, shall be payable
to the Tranche 2 RC Bank purchasing same from and after such date of
purchase.
1.02 Minimum Amount of Each Borrowing. The aggregate
principal amount of each Borrowing shall not be less than the Minimum
Borrowing Amount for the respective Tranche. More than one Borrowing may
occur on the same date, but at no time shall there be outstanding more than
25 Borrowings of Loans hereunder (excluding Borrowings of Base Rate Loans).
1.03 Notice of Borrowing. (a) Whenever (x) any Borrower
desires to incur Dollar Loans hereunder (other than Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or, in the case of
Dollar Loans incurred by GWR or GIMC, telephonic notice promptly confirmed
in writing) of each Base Rate Loan, and at least three Business Days' prior
written notice (or, in the case of Dollar Loans incurred by GWR or GIMC,
telephonic notice promptly confirmed in writing) of each Eurodollar Loan,
provided that any such notice shall be deemed to have been given on a
certain day only if given before 12:00 Noon (New York time) on such day and
(y) any Borrower desires to incur A-2 Term Loans, A-3 Term Loans, B-2 Term
Loans, or Revolving Loans denominated in an Alternate Currency, it shall
give the Administrative Agent at its Notice Office at least four Business
Days' prior written notice, provided that any such notice shall be deemed
to have been given on a certain day only if given before 12:00 Noon (Local
time) on such day. Each such written notice or written confirmation of
telephonic notice (each a "Notice of Borrowing"), shall be irrevocable and
shall be given by the applicable Borrower in the form of Exhibit A,
appropriately completed to specify (i) the date of such incurrence (which
shall be a Business Day), (ii) whether the Loans being made shall
constitute A-1 Term Loans, A-2 Term Loans, A-3 Term Loans, B-1 Term Loans,
B-2 Term Loans, Tranche 1 Revolving Loans or Tranche 2 Revolving Loans,
(iii) the aggregate principal amount of the Loans to be made (stated in the
applicable Approved Currency in the case of a Revolving Loan), (iv) in the
case of Revolving Loans, the Approved Currency for such Revolving Loans,
(v) in the case of Dollar Loans, whether such Loans being made are to be
initially maintained as Base Rate Loans or Eurodollar Loans and (vi) in the
case of Foreign Currency Loans, and Dollar Loans which are Eurodollar
Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly (and in any event within one Business
Day after its receipt of a Notice of Borrowing) give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, notice of such proposed incurrence, of such Bank's
proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
(b) (i) Whenever GWR or GIMC desires to incur a Swingline
Loan, it shall give the Swingline Bank, prior to 12:00 Noon (New York time)
on the day such Swingline Loan is to be made, written notice (or telephonic
notice promptly confirmed in writing) of the Swingline Loan to be made
hereunder. Each such notice shall be irrevocable and shall specify in each
case (x) the date of such Borrowing (which shall be a Business Day), (y)
the aggregate principal amount of the Swingline Loan to be so made and (z)
whether such Swingline Loan will be a Tranche 1 Swingline Loan or a Tranche
2 Swingline Loan.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(h)(B) or Section 1.01(i)(B), as the case may be,
with each Borrower irrevocably agreeing, by its incurrence of any Swingline
Loan, to the making of Mandatory Borrowings as set forth in such Section
1.01(h)(B) or 1.01(i)(B).
(c) Without in any way limiting the obligation of the
applicable Borrower to confirm in writing any telephonic notice of any
incurrence of Loans, the Administrative Agent or the Swingline Bank may act
without liability upon the basis of telephonic notice, believed by the
Administrative Agent or the Swingline Bank, as the case may be, in good
faith to be from an Authorized Officer of such Borrower prior to receipt of
written confirmation. In each such case, such Borrower hereby waives the
right to dispute the Administrative Agent's or the Swingline Bank's, as the
case may be, record of the terms of such telephonic notice absent manifest
error.
1.04 Disbursement of Funds. No later than 1:00 P.M. (Local
time) on the date specified in each Notice of Borrowing or (x) in the case
of Swingline Loans, not later than 3:00 P.M. (New York time) on the date
specified in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings,
not later than 1:00 P.M. (New York time) on the date specified in Section
1.01(h), each Bank with a Commitment under the respective Tranche will make
available its pro rata portion of each Borrowing of Loans requested to be
made on such date (or, in the case of Swingline Loans, the Swingline Bank
shall make available the full amount thereof), in the relevant Approved
Currency and in immediately available funds at the Payment Office of the
Administrative Agent. The Administrative Agent will make available to the
applicable Borrower at the Payment Office in the relevant Approved Currency
and in immediately available funds, the aggregate of the amounts so made
available by the Banks prior to 2:00 P.M. (Local time) on such day, to the
extent of funds actually received by the Administrative Agent. Unless the
Administrative Agent shall have been notified by any Bank prior to the date
of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on
such date, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on such date of Borrowing and
the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative
Agent by such Bank, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Bank. If such Bank does not
pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the
applicable Borrower and such Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent
shall also be entitled to recover on demand from such Bank or such
Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) if recovered from such Bank, the overnight Federal
Funds Rate (or, in the case of Foreign Currency Loans and Dollar Loans
incurred by GGH and GWH, the Administrative Agent's customary rate for
interbank advances) and (ii) if recovered from such Borrower, the rate of
interest applicable to the respective Borrowing, as determined pursuant to
Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any
Bank from its obligation to make Loans hereunder or to prejudice any rights
which any Borrower may have against any Bank as a result of any failure by
such Bank to make Loans hereunder.
1.05 Notes. (a) At the request of any Bank, a Borrower's
obligation to pay the principal of, and interest on, the Loans made by such
Bank to such Borrower shall be evidenced (i) if A-1 Term Loans, by a
promissory note duly executed and delivered by GWR substantially in the
form of Exhibit B-1 with blanks appropriately completed in conformity
herewith (each an "A-1 Term Note" and, collectively, the "A-1 Term Notes"),
(ii) if A-2 Term Loans, by a promissory note duly executed and delivered by
GGH substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each an "A-2 Term Note" and,
collectively, the "A-2 Term Notes"), (iii) if A-3 Term Loans, by a
promissory note duly executed and delivered by GWH substantially in the
form of Exhibit B-3 with blanks appropriately completed in conformity
herewith (each an "A-3 Term Note" and, collectively, the "A-3 Term Notes"),
(iv) if B-1 Term Loans, by a promissory note duly executed and delivered by
GWR substantially in the form of Exhibit B-4 with blanks appropriately
completed in conformity herewith (each a "B-1 Term Note" and, collectively,
the "B-1 Term Notes"), (v) if B-2 Term Loans, by a promissory note duly
executed and delivered by GGH substantially in the form of Exhibit B-5 with
blanks appropriately completed in conformity herewith (each, a "B-2 Term
Note" and, collectively the "B-2 Term Notes"), (vi) if Tranche 1 Revolving
Loans, by a promissory note duly executed and delivered by each Borrower
substantially in the form of Exhibit B-6 with blanks appropriately
completed in conformity herewith (each, a "Tranche 1 Revolving Note" and,
collectively, the "Tranche 1 Revolving Notes"), (vii) if Tranche 2
Revolving Loans, by a promissory note duly executed and delivered by each
Borrower substantially in the form of Exhibit B-7 with blanks appropriately
completed in conformity herewith (each, a "Tranche 2 Revolving Note" and,
collectively, the "Tranche 2 Revolving Notes"), (viii) if Tranche 1
Swingline Loans, by a promissory note duly executed and delivered by GWR
and GIMC substantially in the form of Exhibit B-8, with blanks
appropriately completed in conformity herewith (the "Tranche 1 Swingline
Note") and (ix) if Tranche 2 Swingline Loans, by a promissory note duly
executed and delivered by GWR and GIMC substantially in the form of Exhibit
B-9, with blanks appropriately completed in conformity herewith (the
"Tranche 2 Swingline Note").
(b) The A-1 Term Note issued by GWR to any Bank that has an
A-1 Term Loan Commitment or outstanding A-1 Term Loans shall (i) be
executed by GWR, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the A-1
Term Loan Commitment of such Bank on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, the outstanding A-1 Term Loans of
such Bank at such time), (iv) mature on the A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the Guaranties and be
secured by the Security Documents.
(c) The A-2 Term Note issued by GGH to any Bank that has an
A-2 Term Loan Commitment or outstanding A-2 Term Loans shall (i) be
executed by GGH, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the A-2
Term Loan Commitment of such Bank on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, the outstanding A-2 Term Loans of
such Bank at such time), (iv) mature on the A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08, (vi)
be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the Guaranties and be secured by the
Security Documents.
(d) The A-3 Term Note issued by GWH to any Bank that has an
A-3 Term Loan Commitment or outstanding A-3 Term Loans shall (i) be
executed by GWH, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the A-3
Term Loan Commitment of such Bank on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, the outstanding A-3 Term Loans of
such Bank at such time), (iv) mature on the A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08, (vi)
be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the Guaranties and be secured by the
Security Documents.
(e) The B-1 Term Note issued by GWR to any Bank that has a
B-1 Term Loan Commitment or outstanding B-1 Term Loans shall (i) be
executed by GWR, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the B-1
Term Loan Commitment of such Bank on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, the outstanding B-1 Term Loans of
such Bank at such time), (iv) mature on the B Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii)
be entitled to the benefits of this Agreement and the Guaranties and be
secured by the Security Documents.
(f) The B-2 Term Note issued by GGH to any Bank that has a
B-2 Term Loan Commitment or outstanding B-2 Term Loans shall (i) be
executed by GGH, (ii) be payable to the order of such Bank and be dated the
date of issuance, (iii) be in a stated principal amount equal to the B-2
Term Loan Commitment of such Bank on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, the outstanding B-2 Term Loans of
such Bank at such time), (iv) mature on the B Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08, (vi)
be subject to voluntary prepayment as provided in Section 4.01 and
mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the Guaranties and be secured by the
Security Documents.
(g) The Tranche 1 Revolving Note issued by each Borrower to
any Bank that has a Tranche 1 Revolving Loan Commitment shall (i) be
executed by each Borrower, (ii) be payable to the order of such Bank and be
dated the date of issuance, (iii) be in a stated principal amount equal to
the Tranche 1 Revolving Loan Commitment of such Bank at the time of
issuance, (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the Guaranties and be secured by the Security
Documents.
(h) The Tranche 2 Revolving Note issued by each Borrower to
any Bank that has a Tranche 2 Revolving Loan Commitment shall (i) be
executed by such Borrower, (ii) be payable to the order of such Bank and be
dated the date of issuance, (iii) be in a stated principal amount equal to
the Tranche 2 Revolving Loan Commitment of such Bank at the time of
issuance, (iv) mature on the Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the Guaranties and be secured by the Security
Documents.
(i) The Tranche 1 Swingline Note issued to the Swingline
Bank shall (i) be executed by GWR and GIMC, (ii) be payable to the order of
the Swingline Bank and be dated the date of issuance, (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in
the principal amount of Tranche 1 Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in
Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the Guaranties and be secured by the Security
Documents.
(j) The Tranche 2 Swingline Note issued to the Swingline
Bank shall (i) be executed by GWR and GIMC, (ii) be payable to the order of
the Swingline Bank and be dated the date of issuance, (iii) be in a stated
principal amount equal to the Maximum Swingline Amount and be payable in
the principal amount of Tranche 2 Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in
Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits
of this Agreement and the Guaranties and be secured by the Security
Documents.
(k) Each Bank will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will prior
to any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation shall not affect the respective Borrower's obligations in
respect of such Loans.
1.06 Conversions. Each Borrower shall have the option to
convert on any Business Day all or a portion equal to at least the
applicable Minimum Borrowing Amount for such Tranche of the outstanding
principal amount of the Dollar Loans (other than (x) Tranche 2 Revolving
Loans which shall at all times remain Eurodollar Loans and (y) Swingline
Loans which shall at all times remain Base Rate Loans) made to such
Borrower pursuant to one or more Borrowings (so long as of the same
Tranche) of one or more Types of Loans into a Borrowing or Borrowings (of
the same Tranche) of another Type of Loan, provided that (i) no such
partial conversion of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single
Borrowing to less than the applicable Minimum Borrowing Amount for such
Tranche, (ii) Base Rate Loans may not be converted into Eurodollar Loans if
any Event of Default is in existence on the date of the conversion if the
Administrative Agent or the Required Banks have previously advised such
Borrower that conversions will not be permitted while such Event of Default
remains in existence, (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 1.02 and (iv) prior to the Syndication Date, no
Loan may be converted into Eurodollar Loans except on the first day of a
Pre-Syndication Interest Period. Each such conversion (other than automatic
conversions pursuant to the last paragraph of Section 1.09) shall be
effected by the applicable Borrower's giving the Administrative Agent at
its Notice Office prior to 12:00 Noon (New York time) at least three
Business Days' prior written notice (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing or Borrowings
pursuant to which such Loans were made, the date of such conversion (which
shall be a Business Day) and, if to be converted into Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans (other
than Swingline Loans) under this Agreement shall be incurred from the Banks
pro rata on the basis of their A-1 Term Loan Commitments (and after the
termination thereof, A-1 Term Loans), A-2 Term Loan Commitments (and after
the termination thereof, A-2 Term Loans), A-3 Term Loan Commitments (and
after the termination thereof, A-3 Term Loans), B-1 Term Loan Commitments
(and after the termination thereof, B-1 Term Loans), B-2 Term Loan
Commitments (and after the termination thereof, B-2 Term Loans), Tranche 1
Revolving Loan Commitments (and after the termination thereof, Tranche 1
Revolving Loans), or Tranche 2 Revolving Loan Commitments (and after the
termination thereof, Tranche 2 Revolving Loans), as the case may be;
provided that all Borrowings of Tranche 1 Revolving Loans made pursuant to
a Tranche 1 Mandatory Borrowing shall be incurred from the Tranche 1 RC
Banks pro rata on the basis of their Tranche 1 Revolving Percentages and
all Borrowings of Tranche 2 Revolving Loans made pursuant to a Tranche 2
Mandatory Borrowing shall be incurred from the Tranche 2 RC Banks pro rata
on the basis of their Tranche 2 Revolving Percentages. It is understood
that no Bank shall be responsible for any default by any other Bank of its
obligation to make Loans hereunder and that each Bank shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the
failure of any other Bank to make its Loans hereunder.
1.08 Interest. (a) Each Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date
the proceeds thereof are made available to such Borrower until the
conversion or maturity (whether by acceleration or otherwise) of such Base
Rate Loan, at a rate per annum which shall be equal to the sum of the
Applicable Margin plus the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Euro Rate Loan from the date the proceeds
thereof are made available to such Borrower until the conversion or
maturity (whether by acceleration or otherwise) of such Euro Rate Loan, at
a rate per annum which shall, during each Interest Period applicable
thereto, be equal to the sum of the Applicable Margin plus the Euro Rate
for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount
payable hereunder shall, in each case, bear interest at a rate per annum
equal to the rate which is 2% in excess of the rate then borne by such
Loans (or in the case of overdue amounts other than Loans, an amount equal
to the sum of (i) the Base Rate in effect from time to time, (ii) the
Applicable Margin in respect of Base Rate Loans and (iii) 2%), provided
that principal in respect of Foreign Currency Loans and Tranche 2 Revolving
Loans outstanding as Eurodollar Loans shall bear interest from the date
same becomes due until paid in full at a rate equal to 2% in excess of the
Applicable Margin plus the respective Euro Rate for such successive periods
(not exceeding three months) as the Administrative Agent may determine from
time to time in respect of amounts comparable to the amount not paid.
Interest which accrues under this Section 1.08(c) shall be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Euro Rate Loan, on the last
day of each Interest Period applicable thereto and, in the case of an
Interest Period in excess of three months, on each date occurring at three
month intervals after the first day of such Interest Period and (iii) in
respect of each Loan, on any repayment or prepayment (on the amount repaid
or prepaid), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.
(e) Upon each Interest Determination Date, the
Administrative Agent shall determine the respective interest rate for each
Interest Period applicable to the Euro Rate Loans for which such
determination is being made and shall promptly notify the applicable
Borrower and the Banks thereof. Each such determination shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing in respect of the making of any Euro Rate Loan, or any Notice of
Conversion in respect of the conversion of any Euro Rate Loan (in the case
of the initial Interest Period applicable thereto) or on the third Business
Day prior to the expiration of an Interest Period applicable to such Euro
Rate Loan (in the case of any subsequent Interest Period), the applicable
Borrower shall have the right to elect, by giving the Administrative Agent
notice thereof, the interest period (each an "Interest Period") applicable
to such Euro Rate Loan, which Interest Period shall, at the option of such
Borrower, be a one, two, three or six-month period, or with the consent of
each Bank making such Euro Rate Loan, a nine or twelve- month period
(provided that prior to the Syndication Date, only Pre-Syndication Interest
Periods may be selected by any Borrower); provided that:
(i) all Euro Rate Loans comprising a Borrowing shall at
all times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Euro
Rate Loans shall commence on the date of such Borrowing (including,
in the case of Dollar Loans, the date of any conversion thereto
from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Euro Rate Loans shall
commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Euro Rate Loan
begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar
month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, however, that if any
Interest Period would otherwise expire on a day which 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;
(v) no Interest Period may be selected at any time when an
Event of Default is then in existence if the Administrative Agent
or the Required Banks have previously advised the applicable
Borrower that conversions will not be permitted while such Event of
Default remains in existence;
(vi) no Interest Period for a Borrowing under a Tranche
shall be selected which extends beyond the respective Maturity Date
of such Tranche; and
(vii) no Interest Period in respect of any Borrowing of A-1
Term Loans, A-2 Term Loans, A-3 Term Loans, B-1 Term Loans or B-2
Term Loans shall be selected which extends beyond any date upon
which a Scheduled Repayment of A-1 Term Loans, A-2 Term Loans, A-3
Term Loans, B-1 Term Loans or B-2 Term Loans, as the case may be,
will be required to be made under Sections 4.02(b)(i), 4.02(b)(ii),
4.02(b)(iii), 4.02(c)(i) or 4.02(c)(ii) if the aggregate principal
amount of A-1 Term Loans, A-2 Term Loans, A-3 Term Loans, B-1 Term
Loans or B-2 Term Loans, as the case may be, which have Interest
Periods which will expire after such date will be in excess of the
aggregate principal amount of such Tranche of Term Loans then
outstanding less the aggregate amount of such Scheduled Repayment.
Prior to the termination of any Interest Period applicable
to any Loans, the relevant Borrower may, at its option, designate that the
respective Borrowing subject thereto be split into more than one Borrowing
(for purposes of electing multiple Interest Periods to be applicable
thereto upon the expiration of such Interest Period), so long as each such
Borrowing resulting from the action taken pursuant to this sentence meets
the Minimum Borrowing Amount for such Loans. If upon the expiration of any
Interest Period applicable to a Borrowing of Euro Rate Loans, a Borrower
has failed to elect, or is not permitted to elect, a new Interest Period to
be applicable to such Euro Rate Loans as provided above, such Borrower
shall be deemed to have elected (x) in the case of Eurodollar Loans (other
than Tranche 2 Revolving Loans), to convert such Eurodollar Loans into Base
Rate Loans effective as of the expiration date of such current Interest
Period and (y) in the case of Foreign Currency Loans, and Tranche 2
Revolving Loans outstanding as Eurodollar Loans, to select a one-month
Interest Period for such Foreign Currency Loans or Tranche 2 Revolving
Loans effective as of the expiration of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but,
with respect to clauses (i), (iii)(z) and (iv) below, may be made only by
the Administrative Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the date of this Agreement affecting the
relevant interbank market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Euro Rate;
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Euro Rate Loan which such Bank deems to be material
because of any change since the date of this Agreement in any
applicable law or governmental rule, regulation, order, guideline
or request (whether or not having the force of law) or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, and including the
introduction of any new law or governmental rule, regulation,
order, guideline or request (a "Change in Law"), which (A) changes
the basis of taxation of payment to any Bank of the principal of or
interest on such Euro Rate Loan or any other amounts payable
hereunder (except for changes in the rate of tax on, or determined
by reference to, the net income or profits of such Bank, pursuant
to the laws of the jurisdiction in which such Bank is organized or
in which such Bank's principal office or applicable lending office
is located or any subdivision thereof or therein and Taxes for
which a payment is required pursuant to Section 4.04(a)), (B)
changes official reserve requirements (but, in all events,
excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate) and/or (C)
imposes any other condition affecting such Bank or the relevant
interbank market or the position of such Bank in such market;
(iii) at any time, that the making or continuance of any
Euro Rate Loan has been made (x) unlawful by any Change in Law, (y)
impossible by compliance by any Bank in good faith with any
governmental request made after the date of this Agreement (whether
or not having force of law) or (z) impracticable as a result of a
Change in Law which materially and adversely affects the relevant
interbank market;
(iv) at any time that any Alternate Currency is not
available in sufficient amounts, as determined in good faith by the
Administrative Agent, to fund any Borrowing of Revolving Loans
denominated in such Alternate Currency; or
(v) at any time, that such Bank shall incur any
Mandatory Costs;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i), (iii)(z) or (iv) above) shall promptly give written
notice (or, in the case of Dollar Loans incurred by GWR or GIMC, by
telephone confirmed in writing) to the Borrowers and, except in the case of
clauses (i), (iii)(z) and (iv) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly
transmit to each of the other Banks). Thereafter (v) in the case of clause
(i) above, (A) in the event that Eurodollar Loans are so affected,
Eurodollar Loans shall no longer be available until such time as the
Administrative Agent notifies the Borrowers and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by
a Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by such
Borrower and (B) in the event that any Foreign Currency Loans are so
affected, the applicable Euro Rate shall be determined on the basis
provided in the last sentence of the definition of such Euro Rate, (w) in
the case of clause (ii) above, the applicable Borrower shall pay to such
Bank, upon written demand therefor, such additional amounts (in the form of
an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its reasonable discretion shall determine) as
shall be required to compensate such Bank for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as
to the additional amounts owed to such Bank, showing in reasonable detail
the basis for the calculation thereof, based on averaging and attribution
methods among customers which are reasonable, submitted to the respective
Borrower by such Bank in good faith shall, absent manifest error, be final
and conclusive and binding on all the parties hereto), (x) in the case of
clause (iii) above, the applicable Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law, (y) in the case of clause (iv)
above, Revolving Loans in the affected Foreign Currency (other than any
such Revolving Loans which have theretofore been funded) shall no longer be
available until such time as the Administrative Agent notifies the
Borrowers and the Banks that the circumstances giving rise to such notice
by the Administrative Agent no longer exist, and any Notice of Borrowing
given by a Borrower with respect to such Revolving Loans which have not yet
been incurred shall be deemed rescinded by such Borrower and (z) in the
case of clause (v) above, the applicable Borrower shall pay to such Bank,
upon written demand therefor, such Mandatory Costs.
(b) At any time that any Euro Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the applicable
Borrower may (and in the case of a Euro Rate Loan affected by the
circumstances described in Section 1.10(a)(iii) shall) either (x) if the
affected Euro Rate Loan is then being made initially or pursuant to a
conversion, cancel the respective Borrowing by giving the Administrative
Agent written notice (or, in the case of Dollar Loans incurred by GWR and
GIMC, telephonic notice confirmed in writing) on the same date that such
Borrower was notified by the affected Bank or the Administrative Agent
pursuant to Section 1.10(a)(ii) or (iii) or (y) if the affected Euro Rate
Loan is then outstanding, upon at least three Business Days' written notice
to the Administrative Agent and the affected Bank, and subject to Section
4.02(j), (A) in the case of a Eurodollar Loan, require the affected Bank to
convert such Eurodollar Loan into a Base Rate Loan or repay such Eurodollar
Loan in full and (B) in the case of any Foreign Currency Loan, repay such
Foreign Currency Loans in full; provided that (i) if the circumstances
described in Section 1.10(a)(iii) apply to any Foreign Currency Loan, the
applicable Borrower may, in lieu of taking the actions described above,
maintain such Foreign Currency Loans outstanding, in which case the
applicable Euro Rate shall be determined on the basis provided in the last
sentence of the definition of the applicable Euro Rate, unless the
maintenance of such Foreign Currency Loans outstanding on such basis would
not stop the conditions described in Section 1.10(iii) from existing (in
which case the actions described above, without giving effect to the
proviso, shall be required to be taken) and (ii) if more than one Bank is
affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that, after the date
hereof, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on such Bank's or such other corporation's
capital or assets as a consequence of such Bank's Commitment or Commitments
or Loans hereunder or its obligations hereunder to a level below that which
such Bank or such other corporation could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration
such Bank's or such other corporation's policies with respect to capital
adequacy), then from time to time, upon written demand by such Bank (with a
copy to the Administrative Agent), accompanied by the notice referred to in
the penultimate sentence of this clause (c), GWR (or, in the case of any
Loan, the applicable Borrower) shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such other corporation
for such reduction. In determining such additional amounts, each Bank will
act reasonably and in good faith and will use reasonable averaging and
attribution methods. Each Bank, upon determining that any additional
amounts will be payable pursuant to this Section 1.10(c), will give prompt
written notice thereof to GWR (a copy of which shall be sent by such Bank
to the Administrative Agent), which notice shall set forth in reasonable
detail the basis of the calculation of such additional amounts, although
the failure to give any such notice shall not release or diminish GWR's
obligations to pay additional amounts pursuant to this Section 1.10(c) upon
the subsequent receipt of such notice. A Bank's reasonable good faith
determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the
parties hereto.
(d) In the event that any Bank shall in good faith determine
(which determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto) at any time that such Bank is required
to maintain reserves (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable
law) which have been established by any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body
with jurisdiction over such Bank (including any branch, Affiliate or
funding office thereof) in respect of any Foreign Currency Loans or any
category of liabilities which includes deposits by reference to which the
interest rate on any Foreign Currency Loan is determined or any category of
extensions of credit or other assets which includes loans by a non-United
States office of any Bank to non-United States residents, then, unless such
reserves are included in the calculation of the interest rate applicable to
such Foreign Currency Loans or in Section 1.10(a)(ii), such Bank
shall promptly notify the applicable Borrower or Borrowers in writing
specifying the additional amounts required to indemnify such Bank against
the cost of maintaining such reserves (such written notice to provide in
reasonable detail a computation of such additional amounts) and the
applicable Borrower or Borrowers shall, and shall be obligated to, pay to
such Bank such specified amounts as additional interest at the time that
the applicable Borrower is otherwise required to pay interest in respect of
such Foreign Currency Loan or, if later, on written demand therefor by such
Bank.
1.11 Compensation. Each Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Euro Rate Loans) which such Bank
may sustain: (i) if for any reason (other than a default by such Bank or
the Administrative Agent) a Borrowing of, or conversion from or into, Euro
Rate Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by such
Borrower); (ii) if any repayment (including any repayment made pursuant to
Section 4.01 or 4.02 or a result of an acceleration of the Loans pursuant
to Section 9 or as a result of the replacement of a Bank pursuant to
Section 1.13 or 14.12(b)) or conversion of any Euro Rate Loans occurs on a
date which is not the last day of an Interest Period with respect thereto;
(iii) if any prepayment of any Euro Rate Loans is not made on any date
specified in a notice of prepayment given by such Borrower; or (iv) as a
consequence of (x) any other default by such Borrower to repay its Loans
when required by the terms of this Agreement or any Note held by such Bank
or (y) any election made pursuant to Section 1.10(b).
1.12 Lending Offices; Changes Thereto. (a) Each Bank may at
any time or from time to time designate, by written notice to the
Administrative Agent to the extent not already reflected on Schedule II,
one or more lending offices (which, for this purpose, may include Lending
Affiliates of the respective Bank) for the various Loans made, and Letters
of Credit participated in, by such Bank (including, without limitation, by
designating a separate lending office (or Affiliate) to act as such with
respect to Dollar Loans and Letter of Credit Outstandings versus Foreign
Currency Loans); provided that (i) no Tranche 2 Revolving Loan Commitment
or outstanding A-2 Term Loans, B-2 Term Loans or Tranche 2 Revolving Loans
may be booked in an office outside the Federal Republic of Germany and (ii)
for designations made after the Initial Borrowing Date, to the extent such
designation shall result in increased costs under Section 1.10, 2.05 or
4.04 in excess of those which would be charged in the absence of the
designation of a different lending office (including a different Affiliate
of the respective Bank), then the Borrowers shall not be obligated to pay
such excess increased costs (although the Borrowers, in accordance with and
pursuant to the other provisions of this Agreement, shall be obligated to
pay the costs which would apply in the absence of such designation and any
subsequent increased costs of the type described above resulting from
changes after the date of the respective designation). Each lending office
and Affiliate of any Bank designated as provided above shall, for all
purposes of this Agreement, be treated in the same manner as the respective
Bank (and shall be entitled to all indemnities and similar provisions in
respect of its acting as such hereunder).
(b) Each Bank agrees that on the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii), (iii) or (v), Section
1.10(c), Section 1.10(d), Section 2.05 or Section 4.04 with respect to such
Bank, it will, if requested by any Borrower, use reasonable efforts
(subject to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such Bank
and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event
giving rise to the operation of such Section. Nothing in this Section 1.12
shall affect or postpone any of the obligations of any Borrower or the
right of any Bank provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Banks. (a) (i) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans or
fund Unpaid Drawings, (ii) if any Bank refuses to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in
Section 14.12(b) or (iii) upon the occurrence of any event giving rise to
the operation of Section 1.10(a)(ii), (iii) or (v), Section 1.10(c),
Section 1.10(d), Section 2.05 or Section 4.04 with respect to any Bank
which results in such Bank charging to any Borrower increased costs, such
Borrower shall have the right, in accordance with the requirements of
Section 14.04(b), if no Event of Default will exist after giving effect to
such replacement, to replace such Bank (the "Replaced Bank") with an
Eligible Transferee or Eligible Transferees, none of which shall constitute
a Defaulting Bank at the time of such replacement (collectively, the
"Replacement Bank"), reasonably acceptable to the Administrative Agent and
acceptable to the Issuing Banks, provided that (i) at the time of any
replacement pursuant to this Section 1.13, the Replacement Bank shall enter
into one or more Assignment and Assumption Agreements pursuant to Section
14.04(b) (and with the assignment fee payable pursuant to said Section
14.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire all of the Commitments and outstanding Loans
of, and in each case participations in Letters of Credit by, the Replaced
Bank and, in connection therewith, shall pay to (x) the Replaced Bank 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 Bank, (B) an amount equal to all Unpaid Drawings that have been
funded by (and not reimbursed to) such Replaced Bank, 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
Bank pursuant to Section 3.01, (y) the Issuing Bank an amount equal to such
Replaced Bank's Tranche 1 Revolving Percentage or Tranche 2 Revolving
Percentage, as the case may be, of any Unpaid Drawing (which at such time
remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Bank and (z) the Swingline Bank, any portion of a
Mandatory Borrowing that the Replaced Bank failed to fund and (ii) all
obligations of the Borrowers owing to the Replaced Bank (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 Bank concurrently with such replacement.
(b) Upon the execution of the respective Assignment and
Assumption Agreements, the payment of amounts referred to in clauses (i)
and (ii) of the proviso contained in Section 1.13(a) and, if so requested
by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note or Notes executed by such Borrower, the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to
constitute a Bank hereunder, except with respect to indemnification
provisions applicable to the Replaced Bank under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 14.01 and 14.06),
which shall survive as to such Replaced Bank.
1.14 Limitations on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of
this Agreement, unless a Bank gives notice to any Borrower that it is
obligated to pay an amount under the respective Section within 180 days
after the date such Bank incurs the respective increased costs, Taxes,
loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital, then such Bank shall only be entitled to be
compensated for such amount by such Borrower pursuant to said Section 1.10,
1.11, 2.05 or 4.04, as the case may be, to the extent the costs, Taxes,
loss, expense or liability, reduction in amounts received or receivable or
reduction in return on capital are incurred or suffered on or after the
date which occurs 180 days prior to such Bank giving notice to such
Borrower that it is obligated to pay the respective amounts pursuant to
said Section 1.10, 1.11, 2.05 or 4.04, as the case may be; provided that if
the circumstances giving rise to such claims have a retroactive effect,
then such 180-day period shall be extended to include the period of such
retroactive effect. Notwithstanding anything to the contrary in this
Agreement, this Section 1.14 shall have no applicability to any Section of
this Agreement other than said Sections 1.10, 1.11, 2.05 and 4.04.
1.15 Covenant to Pay. The parties hereto agree that (i) if
GWR ever makes any payments under the Covenant to Pay, such payments shall
be applied to reduce the outstanding Obligations on a pro rata basis and
(ii) after the Total Commitment and all Letters of Credit have terminated
and the Loans, Notes and Unpaid Drawings, together with all accrued but
unpaid interest, fees and other Obligations, are paid in full, the Covenant
to Pay shall be returned to GWR.
SECTION 2. Letters of Credit and Bank Guarantees
2.01 Letters of Credit and Bank Guarantees. (a) Subject to
and upon the terms and conditions set forth herein, any Borrower may
request any Issuing Bank at any time and from time to time on or after the
Initial Borrowing Date and prior to the tenth Business Day (or 30th day in
the case of Trade Letters of Credit) immediately preceding the Revolving
Loan Maturity Date, to issue, and subject to the terms and conditions set
forth herein, each Issuing Bank agrees to issue, (x) for the account of
such Borrower and for the benefit of any holder (or any trustee,
administrative agent or other similar representative for any such holders)
of L/C Supportable Obligations of such Borrower or any of its Subsidiaries,
an irrevocable sight standby letter of credit, in a form customarily used
by such Issuing Bank or in such other form as has been approved by such
Issuing Bank (each such standby letter of credit, a "Standby Letter of
Credit") in support of such L/C Supportable Obligations, (y) for the
account of such Borrower and for the benefit of sellers of goods to such
Borrower or any of its Subsidiaries, an irrevocable sight documentary
letter of credit in a form customarily used by such Issuing Bank or in such
other form as has been approved by such Issuing Bank (each such documentary
letter of credit, a "Trade Letter of Credit") and (z) for the account of
such Borrower and for the benefit of any holder (or any trustee,
administrative agent or other similar representative for any such holders)
of L/C Supportable Obligations of such Borrower or any of its Subsidiaries,
a bank guarantee in a form customarily issued by such Issuing Bank or in
such other form as has been approved by such Issuing Bank (each such bank
guarantee, a "Bank Guarantee," and each such Bank Guarantee, Trade Letter
of Credit and Standby Letter of Credit, a "Letter of Credit") in support of
such L/C Supportable Obligations (it being understood and agreed that (i)
Bank Guarantees shall only be issued by Issuing Banks organized outside the
United States of America, (ii) the form of Bank Guarantees shall be subject
to the respective Issuing Bank's internal policies and procedures for the
issuance of bank guarantees and to applicable local law restrictions and
regulations and (iii) each Issuing Bank may request the relevant Borrower
to execute such other forms as are customary and to accept such Issuing
Bank's general business conditions specifically applicable to its bank
guarantee business prior to the issuance of any Bank Guarantee). All
Letters of Credit shall be denominated in an Approved Currency. At the time
any Borrower requests the issuance of any Letter of Credit, such Borrower
shall designate such Letter of Credit as a "Tranche 1 Letter of Credit" or
a "Tranche 2 Letter of Credit," and if such Letter of Credit is issued, it
shall be and remain a "Tranche 1 Letter of Credit" or a "Tranche 2 Letter
of Credit," as the case may be, for all purposes under this Agreement and
the other Credit Documents.
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued if the Stated Amount of such Letter of Credit, when added
to all Letter of Credit Outstandings at such time, would exceed
$35,000,000, (ii) no Tranche 1 Letter of Credit shall be issued the Stated
Amount of which, when added to the sum of (I) all Tranche 1 Letter of
Credit Outstandings at such time and (II) the aggregate outstanding
Principal Amount of all Tranche 1 Revolving Loans and Tranche 1 Swingline
Loans, would exceed the Total Tranche 1 Revolving Loan Commitment then in
effect, (iii) no Tranche 2 Letter of Credit shall be issued the Stated
Amount of which, when added to the sum of (I) all Tranche 2 Letter of
Credit Outstandings at such time and (II) the aggregate outstanding
Principal Amount of all Tranche 2 Revolving Loans and Tranche 2 Swingline
Loans, would exceed the Total Tranche 2 Revolving Loan Commitment then in
effect, (iv) each Standby Letter of Credit and Bank Guarantee shall by its
terms terminate on or before the earlier of (x) the date which occurs 12
months after the date of issuance thereof (although at the request of the
applicable Borrower any such Standby Letter of Credit or Bank Guarantee
shall be extendible for successive periods of up to 12 months (but not
beyond the tenth Business Day immediately preceding the Revolving Loan
Maturity Date) on terms acceptable to the Issuing Bank) and (y) the tenth
Business Day immediately preceding the Revolving Loan Maturity Date (it
being understood and agreed that at the request of the applicable Borrower
Bank Guarantees shall be issued hereunder with no specified expiry or
termination date, subject to the provisions of Sections 4.02(a)(i) and
(a)(ii)) and (v) each Trade Letter of Credit shall by its terms terminate
on or before the earlier of (x) the date which occurs 180 days after the
date of issuance thereof and (y) the date which occurs 30 days prior to the
Revolving Loan Maturity Date.
(c) Notwithstanding the foregoing, no Issuing Bank shall be
under any obligation to issue and, in the case of sub-clause (c)(ii) below,
shall not issue, any Letter of Credit if any of the applicable conditions
contained in Section 5 shall not be met at the time of such issuance or if
at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit or
any requirement of law applicable to such Issuing Bank or any
request or directive (whether or not having the force of law) from
any governmental authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the
issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Bank with respect to
such Letter of Credit any restriction or reserve or capital
requirement (for which such Issuing Bank is not otherwise
compensated or entitled to indemnification hereunder) not in effect
on the date hereof, or shall result in any unreimbursable loss,
cost or expense to such Issuing Bank which would not have resulted
from any law, request or directive in effect as of the date hereof
and which such Issuing Bank in good faith deems material to it;
(ii) such Issuing Bank shall have received notice from the
Required Banks of the type described in Section 2.02(b); or
(iii) a Bank Default exists, unless the applicable Borrower
and applicable Issuing Bank shall have entered into arrangements
satisfactory to such Borrower and such Issuing Bank to eliminate
such Issuing Bank's risk with respect to the respective Defaulting
Bank's or Banks' Tranche 1 Revolving Percentage of the Tranche 1
Letter of Credit Outstanding and/or Tranche 2 Revolving Percentage
of the Tranche 2 Letter of Credit Outstanding, as the case may be.
(d) Schedule XIV hereto contains a description of certain
letters of credit and bank guarantees issued for the account of Holdings
and/or one or more Borrowers and outstanding on the Effective Date. Each
such letter of credit and bank guarantee, including any extension or
renewal thereof (each, as amended from time to time in accordance with the
terms thereof and hereof, an "Existing Letter of Credit") shall constitute
a "Letter of Credit" (and either a "Tranche 1 Letter of Credit" or a
"Tranche 2 Letter of Credit," as specified on Annex XIV) for all purposes
of this Agreement, issued, for purposes of Section 2.03(a), on the Initial
Borrowing Date. In addition, on any date after the Effective Date on which
any lending institution becomes a Bank hereunder, with the consent of
Holdings, the Administrative Agent and such Bank, any letters of credit or
bank guarantees issued by such Bank for the account of Holdings and/or one
or more Borrowers may be designated as Existing Letters of Credit (and, as
set forth in such designation, either Tranche 1 Letters of Credit" or
"Tranche 2 Letters of Credit") (so long as such letters of credit or bank
guarantees satisfy the requirements of Sections 2.01(a) and (b) at such
time), and if any such letters of credit or bank guarantees are so
designated, Schedule XIV shall be deemed amended to include same and same
shall constitute "Letters of Credit" (and either "Tranche 1 Letters of
Credit" or "Tranche 2 Letters of Credit," as the case may be) for all
purposes of this Agreement, issued, for purposes of Section 2.03(a), on the
date of such designation. Any Bank hereunder to the extent it has issued an
Existing Letter of Credit that is to remain outstanding on the Effective
Date shall constitute an "Issuing Bank" for all purposes of this Agreement.
2.02 Letter of Credit Requests; Notices of Issuance. (a)
Whenever any Borrower desires that a Letter of Credit be issued for its
account it shall execute and deliver to the respective Issuing Bank (with
copies having been sent to the Administrative Agent) at least three
Business Days prior to the issuance thereof (or such shorter period of time
as is acceptable to such Issuing Bank), a Letter of Credit Request in the
form of Exhibit C (each a "Letter of Credit Request"). As provided in the
form of Letter of Credit Request, at the time it delivers such request the
applicable Borrower must designate the requested Letter of Credit Request
as either a "Tranche 1 Letter of Credit" or a "Tranche 2 Letter of Credit."
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the applicable Borrower that
all of the applicable conditions set forth in Section 5 shall be met at the
time of such issuance. No Issuing Bank shall issue any Letter of Credit
after it has received written notice from any Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time
as such Issuing Bank shall have received written notice of (i) rescission
of such notice from the party or parties originally delivering the same or
(ii) a waiver of such Default or Event of Default from the Required Banks
(or all of the Banks, to the extent required under Section 14.12).
(c) Each Issuing Bank shall on the date of each issuance of
or amendment or modification to a Standby Letter of Credit or Bank
Guarantee by it, give the Administrative Agent and the respective Borrower
written notice of the issuance of, or amendment or modification to, such
Standby Letter of Credit or Bank Guarantee, accompanied by a copy of the
Standby Letter of Credit or Bank Guarantee issued by it and each such
amendment or modification thereto. If requested by any Participant, the
Administrative Agent will provide such Participant with copies of any
Standby Letter of Credit or Bank Guarantee or any amendment or modification
thereto.
(d) Each Issuing Bank (other than BTCo and its Lending
Affiliates) shall deliver to the Administrative Agent, promptly on the
first Business Day of each week, by facsimile transmission, the aggregate
daily Stated Amount available to be drawn under the outstanding Trade
Letters of Credit issued by such Issuing Bank for the previous week. The
Administrative Agent shall, within 10 days after the last Business Day of
each calendar month, deliver to each Participant a report setting forth
such preceding calendar month the aggregate daily Stated Amount available
to be drawn under all outstanding Trade Letters of Credit during such
calendar month.
2.03 Letter of Credit Participations. (a) Immediately upon
the issuance by any Issuing Bank of any Tranche 1 Letter of Credit, such
Issuing Bank shall be deemed to have sold to each Tranche 1 RC Bank (each
such Tranche 1 RC Bank, in its capacity under this Section 2.03(a), a
"Tranche 1 Participant"), and each such Tranche 1 Participant shall be
deemed irrevocably and unconditionally to have purchased and received from
such Issuing Bank, without recourse or warranty, an undivided interest and
participation (each a "Tranche 1 Participation"), to the extent of such
Tranche 1 Participant's Tranche 1 Revolving Percentage in such Tranche 1
Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrowers under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto
(although Tranche 1 Letter of Credit Fees will be paid directly to the
Administrative Agent for the ratable account of the Tranche 1 Participants
as provided in Section 3.01(b) and the Tranche 1 Participants shall have no
right to receive any portion of any Facing Fees). Upon any change in the
Tranche 1 Revolving Loan Commitments of the Banks pursuant to Section 1.13
or 14.04, it is hereby agreed that, with respect to all outstanding Tranche
1 Letters of Credit, and Unpaid Drawings in respect of Tranche 1 Letters of
Credit, there shall be an automatic adjustment to the Tranche 1
Participations pursuant to this Section 2.03 to reflect the new Tranche 1
Revolving Percentages of the assignor and assignee Bank.
(b) Immediately upon the issuance by any Issuing Bank of any
Tranche 2 Letter of Credit, such Issuing Bank shall be deemed to have sold
to each Tranche 2 RC Bank (each such Tranche 2 RC Bank, in its capacity
under this Section 2.03(b), a "Tranche 2 Participant"), and each such
Tranche 2 Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such Issuing Bank, without recourse or
warranty, an undivided interest and participation (each a "Tranche 2
Participation"), to the extent of such Tranche 2 Participant's Tranche 2
Revolving Percentage in such Tranche 2 Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligations of the
Borrowers under this Agreement with respect thereto, and any security
therefor or guaranty pertaining thereto (although Tranche 2 Letter of
Credit Fees will be paid directly to the Administrative Agent for the
ratable account of the Tranche 2 Participants as provided in Section
3.01(c) and the Tranche 2 Participants shall have no right to receive any
portion of any Facing Fees). Upon any change in the Tranche 2 Revolving
Loan Commitments of the Banks pursuant to Section 1.13 or 14.04, it is
hereby agreed that, with respect to all outstanding Tranche 2 Letters of
Credit, and Unpaid Drawings in respect of Tranche 2 Letters of Credit,
there shall be an automatic adjustment to the Tranche 2 Participations
pursuant to this Section 2.03 to reflect the new Tranche 2 Revolving
Percentages of the assignor and assignee Bank.
(c) In determining whether to pay under any Letter of
Credit, the respective Issuing Bank shall have no obligation relative to
the respective Participants other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered
and that they appear to substantially comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be
taken by an Issuing Bank under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Issuing Bank any resulting liability.
(d) In the event that any Issuing Bank makes any payment
under any Letter of Credit and the applicable Borrower shall not have
reimbursed such amount in full to such Issuing Bank pursuant to Section
2.04(a), such Issuing Bank shall promptly notify the Administrative Agent
and after receipt of such notice, the Administrative Agent will notify each
respective Participant of such failure, and each such Participant shall
promptly and unconditionally pay to the Administrative Agent, for the
account of such Issuing Bank, the amount of such Participant's Tranche 1
Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be,
of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 11:00 A.M. (Local time) on any
Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the Administrative Agent
for the account of the respective Issuing Bank such Participant's Tranche 1
Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be,
of the amount of such payment on such Business Day in Dollars and in same
day funds. If and to the extent such Participant shall not have so made its
Tranche 1 Revolving Percentage or Tranche 2 Revolving Percentage, as the
case may be, of the amount of such payment available to the Administrative
Agent for the account of the respective Issuing Bank, such Participant
agrees to pay to the Administrative Agent for the account of such Issuing
Bank, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to the
Administrative Agent for the account of the Issuing Bank at the overnight
Federal Funds Rate (or, in the case of Letters of Credit issued outside of
the United States of America, the Issuing Bank's customary rate for
interbank advances). The failure of any Participant to make available to
the Administrative Agent for the account of any Issuing Bank its Tranche 1
Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be,
of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Bank its Tranche 1
Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be,
of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of
any other Participant to make available to the Administrative Agent, such
other Participant's Tranche 1 Revolving Percentage or Tranche 2 Revolving
Percentage, as the case may be, of any such payment.
(e) Whenever the Issuing Bank receives a payment of a
reimbursement obligation as to which the Administrative Agent has received
for the account of an Issuing Bank any payments from the Participants
pursuant to clause (d) above, such Issuing Bank shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to
each Participant which has paid its Tranche 1 Revolving Percentage or
Tranche 2 Revolving Percentage, as the case may be, thereof, in Dollars and
in same day funds, an amount equal to such Participant's Tranche 1
Revolving Percentage or Tranche 2 Revolving Percentage, as the case may be,
of the principal amount of such reimbursement and of interest reimbursed
thereon accruing from and after the date of the purchase of the respective
Participations.
(f) The obligations of the Participants to make payments to
the Administrative Agent for the account of Issuing Banks with respect to
Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or any other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any
of the following circumstances (other than in the case of gross negligence
or willful misconduct of the Issuing Bank):
(i) any lack of validity or enforceability of this
Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other
right which any Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), the
Administrative Agent, any Issuing Bank, any Bank, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between any
Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any 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) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) Each
Borrower hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent for the account of such Issuing Bank,
in Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, for any payment or disbursement made by such Issuing
Bank under any Letter of Credit issued for the account of such Borrower
(each such amount, so paid or disbursed until reimbursed, an "Unpaid
Drawing") within one Business Day after the date of such payment or
disbursement, with interest on the amount so paid or disbursed by such
Issuing Bank, to the extent not reimbursed prior to 2:00 P.M. (Local time)
on the date of such payment, from and including the date paid to but
excluding the date reimbursement is made, at a rate per annum which shall
be the Applicable Margin for Revolving Loans which are maintained as Base
Rate Loans plus the Base Rate in effect from time to time (or, if the
respective Letter of Credit was denominated in an Alternate Currency, the
Applicable Margin for Revolving Loans which are maintained as Euro Rate
Loans plus the Euro Rate for successive periods (not exceeding three
months) as the Administrative Agent may determine from time to time in
respect of amounts comparable to the amount not paid), plus, in each case,
2% if not reimbursed by 2:00 P.M. (Local time) on the second Business Day
following receipt by such Borrower of notice of any such payment or
disbursement), such interest to be payable on demand. Each Issuing Bank
shall notify the respective Borrower and the Administrative Agent of any
payment under a Letter of Credit issued by such Issuing Bank as soon as
practical after such payment, provided that the failure to give any such
notice shall in no way affect, impair or diminish any Borrower's
obligations hereunder.
(b) Each Borrower's obligation under this Section 2.04 to
reimburse Issuing Banks with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense
to payment which any Borrower may have or have had against any Participant,
any Issuing Bank, the Administrative Agent, any Bank, or any other Person,
including, without limitation, any defense based upon the failure of any
payment under a Letter of Credit (each a "Drawing") to conform to the terms
of the Letter of Credit or any non-application or misapplication by the
beneficiary of the proceeds of such Drawing; provided, however, that no
Borrower shall be obligated to reimburse any Issuing Bank for any wrongful
payment made by such Issuing Bank under a Letter of Credit as a result of
acts or omissions constituting willful misconduct or gross negligence on
the part of such Issuing Bank.
(c) As between each Borrower and each Issuing Bank, absent
willful misconduct or gross negligence on the part of the Issuing Bank,
such Borrower assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit by, the respective beneficiaries or transferees of
such Letters of Credit. Further, and not in limitation of the foregoing,
absent gross negligence or willful misconduct on its part, no Issuing Bank
shall be responsible for the following:
(i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any documents submitted by any party in
connection with the application for and issuance of or
any drawing under such Letters of Credit, even if it should in fact
prove to be in any and 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) errors, omissions, interruptions or delays in the
transmission or delivery of any messages by mail, cable, telegraph,
telecopier, telex or otherwise, whether or not they be in cipher;
(iv) errors in interpretation of technical terms;
(v) 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 the proceeds thereof;
(vi) the misapplication by the beneficiary of any such Letter
of Credit or the proceeds of any drawing of any such Letter of
Credit; and
(vii) any consequences arising from causes beyond the
control of such Issuing Bank, including, without limitation, any
acts of governments.
2.05 Increased Costs. If any Issuing Bank or any Participant
determines that after the Initial Borrowing Date the adoption or
effectiveness of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by the Issuing
Bank or any Participant with any request or directive (whether or not
having the force of law) by any such authority, central bank or comparable
agency shall either (i) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against Letters of Credit
issued by such Issuing Bank or such Participant's participation therein, or
(ii) impose on any Issuing Bank or any Participant any other conditions
affecting this Agreement, any Letter of Credit, or such Participant's
participation therein, and the result of any of the foregoing is to
increase the cost to such Issuing Bank or such Participant of issuing,
maintaining or participating in any Letter of Credit, or to reduce the
amount of any sum received or receivable by any Issuing Bank or any
Participant hereunder with respect to Letters of Credit (except for changes
in the rate of tax on, or determined by reference to, the net income or
profits of such Issuing Bank or such Participant pursuant to the laws of
the United States of America, the jurisdiction in which it is organized or
in which its principal office or applicable lending office is located or
any subdivision thereof or therein) or reduce the rate of return on its
capital with respect to Letters of Credit then, upon demand to the
applicable Borrower by such Issuing Bank or such Participant (a copy of
which notice shall be sent by such Issuing Bank or such Participant to the
Administrative Agent), GWR (or, in the case of any Letter of Credit, the
applicable Borrower) shall pay to such Issuing Bank or such Participant, as
the case may be, without duplication of any amounts due under Section
1.10(c) hereof, such additional amount or amounts as will compensate such
Issuing Bank or such Participant, as the case may be, for such increased
cost or reduction in the amount receivable or reduction on the rate of
return on its capital. In determining such additional amounts, each Issuing
Bank and each Participant will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable, provided that
such Issuing Bank's or such Participant's, as the case may be,
determination of compensation owing under this Section 2.05 shall, absent
manifest error, be final and conclusive and binding on all the parties
hereto. Any Issuing Bank or any Participant, upon determining that any
additional amounts are payable to it pursuant to this Section 2.05, will
give prompt written notice thereof, setting forth in reasonable detail the
basis of the calculation of such amounts, although the failure to give any
such notice shall not release or diminish GWR's (or, in the case of any
Letter of Credit, the applicable Borrower's) obligations to pay additional
amounts pursuant to this Section 2.05 upon receipt of such certificate. The
certificate submitted to GWR (or, in the case of any Letter of Credit, the
applicable Borrower) by such Issuing Bank or such Participant, as the case
may be (a copy of which certificate shall be sent by such Issuing Bank or
such Participant to the Administrative Agent), shall set forth in
reasonable detail the basis for the determination of such additional amount
or amounts necessary to compensate the Issuing Bank or such Participant as
provided above in this Section 2.05.
2.06 Minimum Stated Amount. The Stated Amount of each Letter
of Credit shall be not less than $50,000 (or the Relevant Currency
Equivalent thereof, as the case may be) or such lesser amount as is
acceptable to the respective Issuing Bank.
SECTION 3. Commitment Commission; Fees; Reductions of
Commitment.
3.01 Fees. (a) The Borrowers jointly and severally agree to
pay to the Administrative Agent for distribution to each Bank a commitment
fee (the "Commitment Fee") for the period from and including the Effective
Date to but not including the date the Total Commitment has been
terminated, computed at a rate equal to the Applicable Commitment Fee
Percentage on the average daily Unutilized Commitment of such Bank. Accrued
Commitment Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and the date upon which the Total Commitment is
terminated.
(b) Each Borrower agrees to pay to the Administrative Agent
for distribution to each Tranche 1 RC Bank a fee in respect of each Tranche
1 Letter of Credit issued hereunder for the account of such Borrower (the
"Tranche 1 Letter of Credit Fee"), for the period from and including the
date of issuance of such Tranche 1 Letter of Credit to and including the
date of termination of such Tranche 1 Letter of Credit (it being
understood, however, that if such Letter of Credit is drawn on in full or
canceled by the beneficiary thereof prior to the time at which such Letter
of Credit expires in accordance with its terms, the calculation of such fee
shall not include the date of drawing being honored or of cancellation),
computed at a rate per annum equal to the Applicable Margin for Revolving
Loans which are maintained as Euro Rate Loans of the daily Stated Amount of
such Tranche 1 Letter of Credit. Tranche 1 Letter of Credit Fees shall be
distributed by the Administrative Agent to the Banks on the basis of the
respective Tranche 1 Revolving Percentages as in effect from time to time.
Accrued Tranche 1 Letter of Credit Fees shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the first date after the
termination of the Total Tranche 1 Revolving Loan Commitment on which no
Tranche 1 Letters of Credit remain outstanding.
(c) Each Borrower agrees to pay to the Administrative Agent
for distribution to each Tranche 2 RC Bank a fee in respect of each Tranche
2 Letter of Credit issued hereunder for the account of such Borrower (the
"Tranche 2 Letter of Credit Fee"), for the period from and including the
date of issuance of such Tranche 2 Letter of Credit to and including the
date of termination of such Tranche 2 Letter of Credit (it being
understood, however, that if such Letter of Credit is drawn on in full or
canceled by the beneficiary thereof prior to the time at which such Letter
of Credit expires in accordance with its terms, the calculation of such fee
shall not include the date of drawing being honored or of cancellation),
computed at a rate per annum equal to the Applicable Margin for Revolving
Loans which are maintained as Euro Rate Loans of the daily Stated Amount of
such Tranche 2 Letter of Credit. Tranche 2 Letter of Credit Fees shall be
distributed by the Administrative Agent to the Banks on the basis of the
respective Tranche 2 Revolving Percentages as in effect from time to time.
Accrued Tranche 2 Letter of Credit Fees shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the first date after the
termination of the Total Tranche 2 Revolving Loan Commitment on which no
Tranche 2 Letters of Credit remain outstanding.
(d) Each Borrower agrees to pay to each Issuing Bank, for
its own account, a facing fee in respect of each Letter of Credit issued by
it hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of
such Letter of Credit (it being understood, however, that if such Letter of
Credit is drawn on in full or canceled by the beneficiary thereof prior to
the time at which such Letter of Credit expires in accordance with its
terms, the calculation of such fee shall not include the date of such
drawing being honored or cancellation), computed at a rate equal to 1/4 of
1% per annum of the daily Stated Amount of such Letter of Credit (or such
lesser amount as the respective Issuing Bank may agree); provided that in
no event shall the annual Facing Fee with respect to each Letter of Credit
issued by BTCo or any of its Lending Affiliates be less than $500, it being
agreed that, on the date of issuance of any Letter of Credit by BTCo or any
of its Lending Affiliates and on each anniversary thereof prior to the
termination of such Letter of Credit, if $500 will exceed the amount of
Facing Fees that will accrue with respect to such Letter of Credit for the
immediately succeeding 12-month period, the full $500 shall be payable on
the date of issuance of such Letter of Credit and on each such anniversary
thereof prior to the termination of such Letter of Credit. Except as
provided in the immediately preceding sentence, accrued Facing Fees shall
be due and payable quarterly in arrears on each Quarterly Payment Date and
upon the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(e) Each Borrower agrees to pay to the respective Issuing
Bank, upon each payment under, issuance of, or amendment to, any Letter of
Credit issued by it for the account of such Borrower, such amount as shall
at the time of such event be the administrative charge which the Issuing
Bank is generally imposing in connection with such occurrence with respect
to letters of credit or bank guarantees, as the case may be.
(f) The Borrowers jointly and severally agree to pay to each
Agent, for its own account, such other fees as have been agreed to in
writing by the Borrowers and each Agent.
3.02 Voluntary Termination of Total Unutilized Revolving
Loan Commitment. Upon at least three Business Days' prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Borrowers shall
have the right, at any time or from time to time, without premium or
penalty, to permanently reduce the Total Unutilized Tranche 1 Revolving
Loan Commitment or the Total Unutilized Tranche 2 Revolving Loan
Commitment, in whole or in part, in integral multiples of $1,000,000 in the
case of partial reductions to the Total Unutilized Revolving Loan
Commitment, provided that each such reduction to the Total Tranche 1
Revolving Loan Commitment and the Total Tranche 2 Revolving Loan Commitment
shall apply proportionately to permanently reduce the Tranche 1 Revolving
Loan Commitment and the Tranche 2 Revolving Loan Commitment, respectively,
of each RC Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total A-2
Term Loan Commitment (and the A-2 Term Loan Commitment of each Bank), and
the Total B-2 Term Loan Commitment (and the B-2 Term Loan Commitment of
each Bank) shall be terminated on the Initial Borrowing Date, in each case
after giving effect to the incurrence of A-2 Term Loans and B-2 Term Loans
on such date. The Total A-3 Term Loan Commitment (and the A-3 Term Loan
Commitment of each Bank) shall be terminated on the first Business Day
following the Initial Borrowing Date, after giving effect to the incurrence
of A-3 Term Loans on such date. The Total A-1 Term Loan Commitment and the
Total B-1 Term Loan Commitment shall be (i) reduced on the Initial
Borrowing Date by the amount of A-1 Term Loans and B-1 Term Loans,
respectively, incurred on such date and (ii) terminated on the Merger Date
after giving effect to the incurrence of A-1 Term Loans and B-1 Term Loans
on such date.
(b) The Total Revolving Loan Commitment (and the Tranche 1
Revolving Loan Commitment and Tranche 2 Revolving Loan Commitment of each
RC Bank) shall terminate in its entirety on the Revolving Loan Maturity
Date.
(c) On each date after the Initial Borrowing Date upon which
a mandatory repayment of Term Loans pursuant to any of Sections 4.02(d)
through (h), inclusive, is required and exceeds in amount the aggregate
principal amount of Term Loans then outstanding (or would be required if
such Term Loans were then outstanding), the Total Revolving Loan Commitment
shall be permanently reduced by the amount, if any, by which the amount
required to be applied pursuant to said Sections (determined as if an
unlimited amount of Term Loans were actually outstanding) exceeds the
aggregate principal amount of such Term Loans then outstanding (with such
reduction to apply proportionately to reduce the Total Tranche 1 Revolving
Loan Commitment and the Total Tranche 2 Revolving Loan Commitment (based on
the relative amounts of the Total Tranche 1 Revolving Loan Commitment and
the Total Tranche 2 Revolving Loan Commitment).
(d) Each reduction to the Total Tranche 1 Revolving Loan
Commitment pursuant to this Section 3.03 shall be applied proportionately
to reduce the Tranche 1 Revolving Loan Commitment of each Bank with such a
Commitment, and each reduction to the Total Tranche 2 Revolving Loan
Commitment pursuant to this Section 3.03 shall be applied proportionately
to reduce the Tranche 2 Revolving Loan Commitment of each Bank with such a
Commitment.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrowers shall have the
right to prepay Loans, without premium or penalty, in whole or in part from
time to time on the following terms and conditions:
(i) the applicable Borrower shall give the Administrative
Agent at its Notice Office (x) written notice prior to 12:00 Noon
(Local time) at least three Business Days prior to the date of such
prepayment in the case of Euro Rate Loans, (y) written notice prior
to 12:00 Noon (New York time) at least one Business Day prior to
the date of such prepayment in the case of Base Rate Loans and (z)
written notice no later than 12:00 Noon (New York time) on the date
of such prepayment in the case of Swingline Loans, of its intent to
prepay the Loans, whether A-1 Term Loans, A-2 Term Loans, A-3 Term
Loans, B-1 Term Loans, B-2 Term Loans, Tranche 1 Revolving Loans,
Tranche 2 Revolving Loans or Tranche 1 Swingline Loans or Tranche 2
Swingline Loans shall be prepaid (subject to clause (iv) below in
the case of any prepayment of Term Loans), the amount of such
prepayment and the Types of Loans to be prepaid, the currency in
which such Loans are denominated and, in the case of Euro Rate
Loans, the specific Borrowing or Borrowings pursuant to which made,
which notice the Administrative Agent shall, except in the case of
Swingline Loans, promptly transmit to each of the Banks;
(ii) each prepayment shall be in an aggregate principal
amount of at least the applicable Minimum Borrowing Amount for the
Tranche and Type of Loans to be prepaid; provided that no partial
prepayment of Euro Rate Loans made pursuant to any Borrowing shall
reduce the outstanding Loans made pursuant to such Borrowing to an
amount less than the applicable Minimum Borrowing Amount;
(iii) each prepayment in respect of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans;
provided, however, that at the applicable Borrower's election in
connection with any prepayment of Tranche 1 Revolving Loans or
Tranche 2 Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Tranche 1 Revolving Loans or
Tranche 2 Revolving Loan of a Defaulting Bank at any time when the
aggregate amount of Tranche 1 Revolving Loans or Tranche 2
Revolving Loans of any Non-Defaulting Bank exceeds such
Non-Defaulting Bank's Tranche 1 Revolving Percentage of all Tranche
1 Revolving Loans then outstanding, or Tranche 2 Revolving
Percentage of all Tranche 2 Revolving Loans then outstanding, as
the case may be;
(iv) except as provided in Section 4.02(l), each prepayment
of Term Loans pursuant to this Section 4.01 must consist of a
prepayment of A-1 Term Loans (in an amount equal to the A-1 Tranche
Percentage of such prepayment), A-2 Term Loans (in an amount equal
to the A-2 Tranche Percentage of such prepayment), A-3 Term Loans
(in an amount equal to the A-3 Tranche Percentage of such
prepayment), B-1 Term Loans (in an amount equal to the B-1 Tranche
Percentage of such prepayment) and B-2 Term Loans (in an amount
equal to the B-2 Tranche Percentage of such prepayment); and
(v) each prepayment of Term Loans pursuant to this Section
4.01 shall be applied to reduce the then remaining Scheduled
Repayments of the respective Tranche being repaid in direct order
of maturity.
4.02 Mandatory Repayments. (a) (i) If, on any day the sum of
(I) the aggregate outstanding Principal Amount of Tranche 1 Revolving Loans
and Tranche 1 Swingline Loans and (II) the aggregate amount of Tranche 1
Letter of Credit Outstandings (collectively, "Tranche 1 Outstandings")
exceeds 105% of the Total Tranche 1 Revolving Loan Commitment as then in
effect, the Borrowers shall on such day repay Tranche 1 Swingline Loans,
and if no Tranche 1 Swingline Loans remain outstanding, Tranche 1 Revolving
Loans in an amount necessary so that the Tranche 1 Outstandings do not
exceed the Total Tranche 1 Revolving Loan Commitment. If, after giving
effect to the repayment of all outstanding Tranche 1 Revolving Loans and
Tranche 1 Swingline Loans, the aggregate amount of Tranche 1 Letter of
Credit Outstandings exceeds 105% of the Total Tranche 1 Revolving Loan
Commitment as then in effect or, if the Total Tranche 1 Revolving Loan
Commitment has been terminated, the Tranche 1 Letter of Credit Outstandings
exceed zero (including, without limitation, as a result of the existence of
outstanding Bank Guarantees having no specified expiry or termination date
at the time of the termination of the Total Tranche 1 Revolving Loan
Commitment, whether on the Revolving Loan Maturity Date or otherwise), the
Borrowers shall pay to the Administrative Agent at the Payment Office an
amount of cash or Cash Equivalents necessary so that the Tranche 1 Letter
of Credit Outstandings do not exceed the Total Tranche 1 Revolving Loan
Commitment (or, after the Total Tranche 1 Revolving Loan Commitment has
terminated, an amount equal to 110% of the Tranche 1 Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of the Borrowers hereunder in a cash
collateral account to be established by, and satisfactory to, the
Administrative Agent and the Borrowers until the Tranche 1 Letter of Credit
Outstandings do not exceed the Total Tranche 1 Revolving Loan Commitment or
all Tranche 1 Letters of Credit have been terminated or expire.
(ii) If, on any day the sum of (I) the aggregate outstanding
Principal Amount of Tranche 2 Revolving Loans and Tranche 2 Swingline Loans
and (II) the aggregate amount of Tranche 2 Letter of Credit Outstandings
(collectively, "Tranche 2 Outstandings") exceeds 105% of the Total Tranche
2 Revolving Loan Commitment as then in effect, the applicable Borrowers
shall on such day repay Tranche 2 Swingline Loans, and if no Tranche 2
Swingline Loans remain outstanding, Tranche 2 Revolving Loans in an amount
necessary so that the Tranche 2 Outstandings do not exceed the Total
Tranche 2 Revolving Loan Commitment. If, after giving effect to the
repayment of all outstanding Tranche 2 Revolving Loans and Tranche 2
Swingline Loans, the aggregate amount of Tranche 2 Letter of Credit
Outstandings exceeds 105% of the Total Tranche 2 Revolving Loan Commitment
or, if the Total Tranche 2 Revolving Loan Commitment has been terminated,
the Tranche 2 Letter of Credit Outstandings exceed zero (including, without
limitation, as a result of the existence of outstanding Bank Guarantees
having no specified expiry or termination date at the time of the
termination of the Total Tranche 2 Revolving Loan Commitment, whether on
the Revolving Loan Maturity Date or otherwise), the Borrowers shall pay to
the Administrative Agent at the Payment Office an amount of cash or Cash
Equivalents necessary so that the Tranche 2 Letter of Credit Outstandings
do not exceed the Total Tranche 2 Revolving Loan Commitment (or, after the
Total Tranche 2 Revolving Loan Commitment has terminated, an amount equal
to 110% of the Tranche 2 Letter of Credit Outstandings at such time), such
cash or Cash Equivalents to be held as security for all obligations of the
Borrowers hereunder in a cash collateral account to be established by, and
satisfactory to, the Administrative Agent and the Borrowers until the
Tranche 2 Letter of Credit Outstandings do not exceed the Total Tranche 2
Revolving Loan Commitment or all Tranche 2 Letters of Credit have been
terminated or expire.
(iii) If at any time the aggregate amount of Letter of
Credit Outstandings exceeds 105% of $35,000,000, the Borrowers shall pay to
the Administrative Agent at the Payment Office an amount of cash or Cash
Equivalents necessary so that the Letter of Credit Outstandings do not
exceed $35,000,000, such cash or Cash Equivalents to be held as security
for all obligations of the Borrowers hereunder in a cash collateral account
to be established by, and satisfactory to, the Administrative Agent and the
Borrowers until the Letter of Credit Outstandings do not exceed $35,000,000
or all Letters of Credit have been terminated or expire.
(b) (i) In addition to any other mandatory repayments
pursuant to this Section 4.02, GWR shall be required to repay on each date
set forth below a portion of the principal amount of A-1 Term Loans, to the
extent then outstanding, equal to the aggregate principal amount of the A-1
Term Loans as of the Merger Date multiplied by the percentage set forth
below opposite such date (each such repayment, as the same may be reduced
as provided in Sections 4.01 and 4.02, an "A-1 Term Loan Scheduled
Repayment"):
A-1 Term Loan Scheduled Repayment Date Amount
-------------------------------------- ------
June 30, 2000 1.25%
September 30, 2000 1.25%
December 30, 2000 1.25%
March 31, 2001 1.90%
June 30, 2001 1.90%
September 30, 2001 1.90%
December 30, 2001 1.90%
March 31, 2002 2.80%
June 30, 2002 2.80%
September 30, 2002 2.80%
December 30, 2002 2.80%
March 31, 2003 4.40%
June 30, 2003 4.40%
September 30, 2003 4.40%
December 30, 2003 4.40%
March 31, 2004 5.95%
June 30, 2004 5.95%
September 30, 2004 5.95%
December 30, 2004 5.95%
March 31, 2005 9.00%
June 30, 2005 9.00%
September 30, 2005 9.00%
A Term Loan Maturity Date 9.05%
(ii) In addition to any other mandatory repayments pursuant
to this Section 4.02, GGH shall be required to repay on each date set forth
below a portion of the principal amount of A-2 Term Loans, to the extent
then outstanding, equal to the initial aggregate principal amount of the
A-2 Term Loans multiplied by the percentage set forth below opposite such
date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02, an "A-2 Term Loan Scheduled Repayment"):
A-2 Term Loan Scheduled Repayment Date Amount
-------------------------------------- ------
June 30, 2000 1.25%
September 30, 2000 1.25%
December 30, 2000 1.25%
March 31, 2001 1.90%
June 30, 2001 1.90%
September 30, 2001 1.90%
December 30, 2001 1.90%
March 31, 2002 2.80%
June 30, 2002 2.80%
September 30, 2002 2.80%
December 30, 2002 2.80%
March 31, 2003 4.40%
June 30, 2003 4.40%
September 30, 2003 4.40%
December 30, 2003 4.40%
March 31, 2004 5.95%
June 30, 2004 5.95%
September 30, 2004 5.95%
December 30, 2004 5.95%
March 31, 2005 9.00%
June 30, 2005 9.00%
September 30, 2005 9.00%
A Term Loan Maturity Date 9.05%
(iii) In addition to any other mandatory repayments pursuant
to this Section 4.02, GWH shall be required to repay on each date set forth
below a portion of the principal amount of A-3 Term Loans, to the extent
then outstanding, equal to the initial aggregate principal amount of the
A-3 Term Loans multiplied by the percentage set forth below opposite such
date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02, an "A-3 Term Loan Scheduled Repayment"):
A-3 Term Loan Scheduled Repayment Date Amount
-------------------------------------- ------
June 30, 2000 1.25%
September 30, 2000 1.25%
December 30, 2000 1.25%
March 31, 2001 1.90%
June 30, 2001 1.90%
September 30, 2001 1.90%
December 30, 2001 1.90%
March 31, 2002 2.80%
June 30, 2002 2.80%
September 30, 2002 2.80%
December 30, 2002 2.80%
March 31, 2003 4.40%
June 30, 2003 4.40%
September 30, 2003 4.40%
December 30, 2003 4.40%
March 31, 2004 5.95%
June 30, 2004 5.95%
September 30, 2004 5.95%
December 30, 2004 5.95%
March 31, 2005 9.00%
June 30, 2005 9.00%
September 30, 2005 9.00%
A Term Loan Maturity Date 9.05%
(c) (i) In addition to any other mandatory repayments
pursuant to this Section 4.02, GWR shall be required to repay on each date
set forth below a portion of the principal amount of B-1 Term Loans, to the
extent then outstanding, equal to the aggregate principal amount of the B-1
Term Loans as of the Merger Date multiplied by the percentage set forth
below opposite such date (each such repayment, as the same may be reduced
as provided in Sections 4.01 and 4.02, a "B- 1 Term Loan Scheduled
Repayment"):
B-1 Term Loan Scheduled Repayment Date Amount
-------------------------------------- ------
December 30, 2000 1.00%
December 30, 2001 1.00%
December 30, 2002 1.00%
December 30, 2003 1.00%
December 30, 2004 1.00%
December 30, 2005 1.00%
March 31, 2006 8.75%
June 30, 2006 8.75%
September 30, 2006 8.75%
December 30, 2006 8.75%
March 31, 2007 14.75%
June 30, 2007 14.75%
September 30, 2007 14.75%
B Term Loan Maturity Date 14.75%
(ii) In addition to any other mandatory repayments pursuant
to this Section 4.02, GGH shall be required to repay on each date set forth
below a portion of the principal amount of B-2 Term Loans, to the extent
then outstanding, equal to the initial aggregate principal amount of the
B-2 Term Loans multiplied by the percentage set forth below opposite such
date (each such repayment, as the same may be reduced as provided in
Sections 4.01 and 4.02, a "B-2 Term Loan Scheduled Repayment"):
B-2 Term Loan Scheduled Repayment Date Amount
-------------------------------------- ------
December 30, 2000 1.00%
December 30, 2001 1.00%
December 30, 2002 1.00%
December 30, 2003 1.00%
December 30, 2004 1.00%
December 30, 2005 1.00%
March 31, 2006 8.75%
June 30, 2006 8.75%
September 30, 2006 8.75%
December 30, 2006 8.75%
March 31, 2007 14.75%
June 30, 2007 14.75%
September 30, 2007 14.75%
B Term Loan Maturity Date 14.75%
(d) Within one Business Day following each date after the
Initial Borrowing Date upon which Holdings receives any proceeds from any
issuance of equity (excluding (i) proceeds received from the private sale
or issuance of equity (including, without limitation, Qualified Preferred
Equity) which are used to effect Permitted Acquisitions pursuant to Section
7.14, to make investments pursuant to Section 8.05(xvi) or to make Capital
Expenditures pursuant to Section 8.07, (ii) proceeds received from the sale
or issuance of equity by Holdings, to the extent used to repurchase equity
from management pursuant to Section 8.03(iv), (iii) proceeds received upon
the exercise of options or warrants by management and (iv) proceeds
received upon the exercise of options or warrants by Torque or the
Foundation or any of their respective Affiliates; provided that the
proceeds excluded pursuant to clauses (i) and (iv) above shall not exceed
$25,000,000 in the aggregate) an amount equal to 50% of the cash proceeds
therefrom (net of underwriting discounts or placement discounts and
commissions and other reasonable fees and costs associated therewith) shall
be applied as a mandatory repayment of the principal of outstanding Term
Loans in accordance with the requirements of Section 4.02(i) (subject to
modification of such application as set forth in Section 4.02(l)).
(e) Within one Business Day following each date after the
Initial Borrowing Date upon which Holdings and/or any of its Subsidiaries
receives any proceeds from any incurrence of Indebtedness (excluding any
Indebtedness permitted to be incurred pursuant to Section 8.04 as in effect
on the Initial Borrowing Date), an amount equal to 100% of the cash
proceeds therefrom (net of underwriting discounts or placement discounts
and commissions and other reasonable fees and costs associated therewith)
shall be applied as a mandatory repayment of the principal of outstanding
Term Loans in accordance with the requirements of Section 4.02(i) (subject
to modification of such application as set forth in Section 4.02(l)).
(f) Within three Business Days following each date on and
after the Initial Borrowing Date upon which Holdings and/or any of its
Subsidiaries receives Cash Proceeds from any Asset Sale, an amount equal to
100% of the Net Cash Proceeds therefrom shall be applied as a mandatory
repayment of the principal of outstanding Term Loans in accordance with the
requirements of Section 4.02(i) (subject to modification of such
application as set forth in Section 4.02(l)), provided that such Net Cash
Proceeds shall not be required to be so applied on such date if no Default
or Event of Default then exists and the applicable Borrower delivers a
certificate to the Administrative Agent on or prior to such date stating
that such Net Cash Proceeds shall be used either (i) to purchase assets
used in the ordinary course of business in compliance with this Agreement,
(ii) to make permitted Capital Expenditures or (iii) to purchase equity
interests or assets in connection with a Permitted Acquisition, in each
case within 360 days following the date of such Asset Sale (which
certificate shall set forth the estimates of the proceeds to be so
expended), and provided further, that if all or any portion of such Net
Cash Proceeds not so applied to the repayment of Term Loans are not so used
within such 360 day period, such remaining portion shall be applied on the
last day of such period as a mandatory repayment of principal of
outstanding Term Loans as provided above in this Section 4.02(f).
(g) On each Excess Cash Payment Date, an amount equal to 75%
(50% if as of the last day of the relevant Excess Cash Payment Period the
Leverage Ratio is less than 3.25:1.0) of the Excess Cash Flow for the
relevant Excess Cash Payment Period shall be applied as a mandatory
repayment of the principal of outstanding Term Loans in accordance with the
requirements of Section 4.02(i) (subject to modification of such
application as set forth in Section 4.02(l)).
(h) Within 10 days following each date after the Initial
Borrowing Date on which Holdings or any of its Subsidiaries receives any
proceeds from any Recovery Event, an amount equal to 100% of the proceeds
of such Recovery Event (net of reasonable costs including, without
limitation, legal costs and expenses and taxes incurred in connection with
such Recovery Event) shall be applied as a mandatory repayment of the
principal of outstanding Term Loans in accordance with the requirements of
Section 4.02(i) (subject to modification of such application as set forth
in Section 4.02(l)); provided that so long as no Default or Event of
Default then exists and to the extent such proceeds do not exceed
$30,000,000, such proceeds shall not be required to be so applied on such
date to the extent that GWR has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds
shall be used to repair, replace or restore any properties or assets in
respect of which such proceeds were paid within 360 days following the date
of such Recovery Event (which certificate shall set forth the estimates of
the proceeds to be so expended), and provided further, that if all or any
portion of such proceeds not required to be applied to the repayment of
Term Loans pursuant to the preceding proviso are not so used (or binding
commitments with respect thereto are not made) within such 360 day period,
such remaining portion shall be applied on the last day of such period as a
mandatory repayment of principal of outstanding Term Loans in accordance
with the requirements of Section 4.02(i).
(i) Except as provided in Section 4.02(l), the amount of
each principal repayment of Term Loans made as required by Sections
4.02(d), (e), (f), (g) and (h) shall be applied to repay the A-1 Term Loans
(in an amount equal to the A-1 Tranche Percentage of such aggregate
repayment), the A-2 Term Loans (in an amount equal to the A-2 Tranche
Percentage of such aggregate repayment), the A-3 Term Loans (in an amount
equal to the A-3 Tranche Percentage of such aggregate repayment), the B-1
Term Loans (in an amount equal to the B-1 Tranche Percentage of such
aggregate repayment) and the B-2 Term Loans (in an amount equal to the B-2
Tranche Percentage of such aggregate repayment). Each prepayment of Term
Loans pursuant to the preceding sentence shall be applied to reduce the
then remaining Scheduled Repayments of the respective Tranche being repaid
on a pro rata basis based on the amount of such Scheduled Repayments after
giving effect to all prior reductions thereto.
(j) With respect to each repayment of Loans required by this
Section 4.02, each Borrower may designate the Types of Loans which are to
be repaid and, in the case of Euro Rate Loans, the specific Borrowing or
Borrowings of the respective Tranche pursuant to which such Loans were
made, provided that: (i) if any repayment of Euro Rate Loans made pursuant
to a single Borrowing shall reduce the outstanding Euro Rate Loans made
pursuant to such Borrowing to an amount less than the applicable Minimum
Borrowing Amount, such Borrowing shall be immediately converted into a
Borrowing of Base Rate Loans (or repaid in the case of a Borrowing of
Foreign Currency Loans); and (ii) each repayment of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans; provided that
(x) no repayment pursuant to Section 4.02(a)(i) shall be applied to any
Tranche 1 Revolving Loans of a Defaulting Bank at any time when the
aggregate amount of the Tranche 1 Revolving Loans of any Non-Defaulting
Bank exceeds such Non- Defaulting Bank's Tranche 1 Revolving Percentage of
Tranche 1 Revolving Loans then outstanding and (y) no repayment pursuant to
Section 4.02(a)(ii) shall be applied to any Tranche 2 Revolving Loans of a
Defaulting Bank at any time when the aggregate amount of the Tranche 2
Revolving Loans of any Non-Defaulting Bank exceeds such Non-Defaulting
Bank's Tranche 2 Revolving Percentage of Tranche 2 Revolving Loans then
outstanding. In the absence of a designation by any Borrower as described
in the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its sole discretion. Notwithstanding the
foregoing provisions of this Section 4.02, if any time the mandatory
prepayment of Term Loans pursuant to Sections 4.02(d) through (h) above, or
repayments of Euro Rate Loans pursuant to Section 1.10(b) would result,
after giving effect to the procedures set forth above, in a Borrower
incurring breakage costs under Section 1.11 as a result of Euro Rate Loans
being prepaid other than on the last day of an Interest Period applicable
thereto (the "Affected Euro Rate Loans"), then such Borrower may in its
sole discretion initially deposit a portion (up to 100%) of the amounts
that otherwise would have been paid in respect of the Affected Euro Rate
Loans with the Administrative Agent (which deposit must be equal in amount
to the amount of Affected Euro Rate Loans not immediately prepaid) to be
held as security for the obligations of such Borrower hereunder pursuant to
a cash collateral arrangement to be agreed upon in form and substance
satisfactory to the Administrative Agent and such Borrower, with such cash
collateral to be directly applied upon the first occurrence (or
occurrences) thereafter of the last day of an Interest Period applicable to
the relevant Term Loans that are Euro Rate Loans (or such earlier date or
dates as shall be requested by such Borrower), to repay an aggregate
principal amount of such Term Loans equal to the Affected Euro Rate Loans
not initially repaid pursuant to this sentence. Notwithstanding anything to
the contrary contained in the immediately preceding sentence, all amounts
deposited as cash collateral pursuant to the immediately preceding sentence
shall be held for the sole benefit of the Banks whose Term Loans would
otherwise have been immediately repaid with the amounts deposited and upon
the taking of any action by the Administrative Agent or the Banks pursuant
to the remedial provisions of Section 9, any amounts held as cash
collateral pursuant to this Section 4.02(j) shall, subject to the
requirements of applicable law, be immediately applied to the Term Loans.
(k) All outstanding A Term Loans shall be repaid in full on
the A Term Loan Maturity Date. All outstanding B Term Loans shall be repaid
in full on the B Term Loan Maturity Date. All outstanding Revolving Loans
shall be repaid on the Revolving Loan Maturity Date. All outstanding
Swingline Loans shall be repaid in full on the Swingline Expiry Date.
(l) Notwithstanding anything to the contrary contained in
this Section 4.02 or elsewhere in this Agreement (including, without
limitation, in Section 14.12), each Borrower shall have the option, in its
sole discretion, to give the Banks with outstanding Term Loans of any
Tranche the option to waive voluntary prepayment of such Loans pursuant to
Section 4.01 or a mandatory repayment of such Loans pursuant to Sections
4.02(d), (e), (f), (g), and/or (h) (each such prepayment or repayment, a
"Waivable Repayment") upon the terms and provisions set forth in this
Section 4.02(l). If a Borrower elects to exercise the option referred to in
the preceding sentence, such Borrower shall give to the Administrative
Agent written notice of its intention to give the Banks of the selected
Tranche or Tranches the right to waive a Waivable Repayment at least five
Business Days prior to such repayment, which notice the Administrative
Agent shall promptly forward to all Banks of the selected Tranche or
Tranches (indicating in such notice the amount of such repayment to be
applied to each such Bank's outstanding Term Loans). Any Borrower's offer
to permit such Banks to waive any such Waivable Repayment may apply to all
or part of such repayment, provided that any offer to waive part of such
repayment must be made ratably to such Banks on the basis of their
outstanding Term Loans of the selected Tranche or Tranches. In the event
any such Bank desires to waive such Bank's right to receive any such
Waivable Repayment in whole or in part, such Bank shall so advise the
Administrative Agent no later than the close of business two Business Days
after the date of such notice from the Administrative Agent, which notice
shall also include the amount such Bank desires to receive in respect of
such repayment. If any Bank does not reply to the Administrative Agent
within the two Business Days, it will be deemed not to have waived any part
of such repayment. If any Bank does not specify an amount it wishes to
receive, it will be deemed to have accepted 100% of the total payment. In
the event that any such Bank waives all or part of such right to receive
any such Waivable Repayment, the Administrative Agent shall apply 100% of
the amount so waived by such Bank to the other Tranches of Term Loans (if
applicable) in accordance with Section 4.02(i), determined as if no Term
Loans of the waived Tranche were outstanding at such time (provided that
once all other Tranches of Term Loans have been repaid in full, the amount
so waived may be retained by such Borrower).
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto no later than 12:00 Noon (Local time) on the date
when due and shall be made in immediately available funds at the Payment
Office of the Administrative Agent and in: (x) Dollars, if such payment is
made in respect of any obligation of any of the Borrowers under this
Agreement (including, without limitation, reimbursement obligations with
respect to Letters of Credit, Tranche 1 Letter of Credit Fees, Tranche 2
Letter of Credit Fees and Facing Fees, even if the respective Letter of
Credit is denominated in an Alternate Currency), except as otherwise
provided in the immediately succeeding clause (y); or (y) the appropriate
Approved Currency, if such payment is made in respect of principal of or
interest on Foreign Currency Loans. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
4.04 Net Payments; Taxes. (a) All payments made by Holdings
and each Borrower hereunder or by each Borrower under any Note will be made
without setoff, counterclaim or other defense. Except as provided in
Section 4.04(b), all such payments will be made free and clear of, and
without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank pursuant
to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of
such Bank is located or any political subdivision or taxing authority
thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (collectively, "Taxes"). If any Taxes are so levied or
imposed, the relevant Borrower agrees to pay the full amount of such Taxes,
and such additional amounts as may be necessary so that every payment of
all amounts due under this Agreement or under any Note, after withholding
or deduction for or on account of any Taxes, will not be less than the
amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the relevant Borrower
agrees to reimburse each Bank, upon the written request of such Bank, for
taxes imposed on or measured by the net income of such Bank pursuant to the
laws of the jurisdiction or any political subdivision or taxing authority
thereof or therein in which the principal office or applicable lending
office of such Bank is located as such Bank shall determine are payable by
such Bank in respect of such amounts so paid to or on behalf of such Bank
pursuant to the preceding sentence and in respect of any amounts paid to or
on behalf of such Bank pursuant to this sentence. Each Borrower will
furnish to the Administrative Agent within 45 days after the date of the
payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by such Borrower. Without duplication
of amounts payable pursuant to the foregoing provisions of this Section
4.04(a), each Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes
so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
the Borrowers and the Administrative Agent on or prior to the Effective
Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 14.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or successor forms) certifying to
such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement
and under any Note or (ii) if the Bank is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit D (any such certificate, a
"Section 4.04(b)(ii) Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN (with
respect to the portfolio interest exemption) (or successor form) certifying
to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. Each other Bank agrees to deliver to the
Borrowers and the Administrative Agent on or prior to the Initial Borrowing
Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 14.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, one or more accurate and complete original signed copies (as the
Borrowers or Administrative Agent may reasonably request) of United States
Internal Revenue Service Form W-9 or successor applicable form (if required
by law), as the case may be, providing the employer identification number
for such Bank. In addition, each Bank agrees that from time to time after
the Effective Date, when a lapse in time or change in circumstances renders
the previous certification obsolete or inaccurate in any material respect,
it will deliver to Holdings and the Administrative Agent two new accurate
and complete original signed copies of Internal Revenue Service Form W-
8ECI or Form W-8BEN (with respect to the benefit of any income tax treaty),
or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate or Form W-9 (or any successor forms), as
the case may be, and such other forms as may be required in order to
confirm or establish the entitlement of such Bank to a continued exemption
from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or it shall immediately notify Holdings
and the Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Bank shall not be required to deliver any
such form of certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to the
immediately succeeding sentence, (x) each Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Bank to the extent that such Bank
has not provided to the Borrowers U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y)
the Borrowers shall not be obligated pursuant to Section 4.04(a) hereof to
gross-up payments to be made to a Bank in respect of income or similar
taxes imposed by the United States if (I) such Bank has not provided to the
Borrowers the Internal Revenue Service Forms required to be provided to the
Borrowers pursuant to this Section 4.04(b) or (II) in the case of a
payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04, each
Borrower agrees to pay additional amounts and to indemnify each Bank in the
manner set forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any
amounts deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes after the Effective Date in
any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of such income or similar Taxes.
(c) Each Bank that is not a resident of the United Kingdom
for United Kingdom tax purposes and that is a lender to GWH agrees, to the
extent such Bank is entitled to do so by law and the provisions of any
applicable tax treaty, within 45 days after the Effective Date (or, in the
case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or Section 14.04(b) (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), within 45 days after the date such Bank becomes a
party to this Agreement by execution of an Assignment and Assumption
Agreement), to make the requisite filing with the appropriate U.K. taxing
authority (as to which GWH shall notify such Bank) (and/or the taxing
authority of the jurisdiction in which such Bank's principal office is
located) as required to establish its entitlement to an exemption from or
reduction in U.K. withholding under the double tax treaty currently in
force between the United States (or the jurisdiction in which such Bank's
principal office is located) and the United Kingdom. Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to the
immediately succeeding sentence, (i) GWH shall be entitled, to the extent
it is required to do so by law, to deduct and withhold income or similar
taxes imposed by the United Kingdom on interest, Fees or other amounts
payable hereunder for the account of any Bank which is not a resident of
the United Kingdom for U.K. tax purposes to the extent that such Bank has
not provided forms, declarations or other certification required to
establish a complete exemption from such deduction or withholding and (ii)
GWH shall not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Bank in respect of income or similar taxes imposed
by the United Kingdom if such Bank has not provided to GWH the forms and
declaration required to be provided by such Bank pursuant to the preceding
sentence. Alternatively, if a Bank is a bank as defined in Section 840 A of
the Income and Corporation Taxes Act of 1988 of the United Kingdom, it
shall, upon the written request of the Borrower, provide certifications to
that effect to GWH. Notwithstanding anything to the contrary contained
above in this clause (c) or elsewhere in this Section 4.04, GWH agrees to
pay any additional amounts and to indemnify each Bank in the manner set
forth in Section 4.04(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any
Taxes deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order,
or in the interpretation thereof, relating to the deducting or withholding
of such Taxes. For the avoidance of doubt, nothing herein shall require any
Bank to disclose any information regarding its tax affairs or computations
to GWH or any of its Affiliates and no Bank shall be obligated to disclose
any of its tax returns to GWH or any of its Affiliates or any agent of the
foregoing.
(d) If a Borrower pays any additional amount under this
Section 4.04 to a Bank and such Bank determines in its sole discretion that
it has actually received or realized in connection therewith any refund or
any reduction of, or credit against, its Tax liabilities in or with respect
to the taxable year in which the additional amount is paid (a "Tax
Benefit"), such Bank shall pay such Borrower an amount that the Bank shall,
in its sole discretion, determine is equal to the net benefit, after tax,
which was obtained by such Bank in such year as a consequence of such Tax
Benefit; provided, however, that (i) any Bank may determine in its sole
discretion consistent with the policies of such Bank whether to seek a Tax
Benefit; (ii) any Taxes that are imposed on a Bank as a result of a
disallowance or reduction (including through the expiration of any tax
carryover or carryback of such Bank that otherwise would not have expired)
of any Tax Benefit with respect to which such Bank has made a payment to a
Borrower pursuant to this Section 4.04(d) shall be treated as a Tax
for which such Borrower is obligated to indemnify such Bank pursuant to
this Section 4.04 without any exclusions or defenses; and (iii) nothing in
this Section 4.04(d) shall require a Bank to disclose any confidential
information to any Borrower (including, without limitation, its tax
returns).
SECTION 5. Conditions Precedent. The obligation of each Bank
to make Loans hereunder, and the obligation of each Issuing Bank to issue
Letters of Credit hereunder, is subject, at the time of the making of each
such Credit Event, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the
Initial Borrowing Date (i) this Agreement shall have been executed and
delivered as provided in Section 14.10 and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Banks
requesting them the appropriate Notes executed by the applicable Borrower
or Borrowers, in each case in the amount, maturity and as otherwise
provided herein.
5.02 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of
such Credit Event (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date).
5.03 Officer's Certificate. On the Initial Borrowing Date,
the Administrative Agent shall have received a certificate dated such date
signed by the President or any Vice President of GWR stating that all of
the applicable conditions set forth in Section 5.02, 5.07, 5.11, 5.12 and
5.15 have been met.
5.04 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received from (i) Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel to Holdings and its Subsidiaries, an
opinion addressed to the Administrative Agent, the Collateral Agent and
each of the Banks and dated the Initial Borrowing Date covering the matters
set forth in Exhibit E-1, (ii) Edward J. Pelta, General Counsel of
Holdings, an opinion addressed to the Administrative Agent, the Collateral
Agent and each of the Banks and dated the Initial Borrowing Date covering
the matters set forth in Exhibit E-2, (iii) Beiten Burkhardt Mittl &
Wegener, special German counsel to Holdings and its Subsidiaries, an
opinion addressed to the Administrative Agent, the Collateral Agent and
each of the Banks and dated the Initial Borrowing Date covering the matters
set forth in Exhibit E-3, (iv) Skadden, Arps, Slate, Meagher & Flom LLP,
special U.K. counsel to Holdings and its Subsidiaries, an opinion addressed
to the Administrative Agent, the Collateral Agent and each of the Banks and
dated the Initial Borrowing Date covering the matters set forth in Exhibit
E-4, (v) White & Case LLP, counsel to the Administrative Agent and the
banks, an opinion addressed to the Administrative Agent and the Banks and
dated the Initial Borrowing Date and covering the matters set forth in
Exhibit E-5, (vi) unless otherwise agreed by the Administrative Agent,
counsel rendering such opinions, reliance letters addressed to the
Administrative Agent, the Collateral Agent and each of the Banks dated the
Initial Borrowing Date with respect to all legal opinions (if any)
delivered in connection with the Transaction, which reliance letters shall
be in form and substance reasonably satisfactory to the Administrative
Agent and (vii) to the extent reasonably requested by the Administrative
Agent, from local counsel to Holdings and its Subsidiaries reasonably
satisfactory to the Administrative Agent, opinions addressed to the
Administrative Agent, the Collateral Agent and each of the Banks and dated
the Initial Borrowing Date, each of which shall be in form and substance
reasonably satisfactory to the Administrative Agent and shall cover the
perfection of the security interests granted pursuant to the Security
Documents and such other matters incident to the transactions contemplated
herein and in the other Credit Documents as the Administrative Agent may
reasonably request.
5.05 Corporate Documents; Proceedings. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by an Authorized Officer of each
Credit Party, and attested to by a second Authorized Officer of such Credit
Party, substantially in the form of Exhibit F with appropriate insertions,
together with copies of the Certificate of Incorporation and By-Laws (or
their equivalents) of such Credit Party and the resolutions of such Credit
Party referred to in such certificate, and the foregoing shall be
reasonably acceptable to the Administrative Agent.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements relating to the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent may have reasonably
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental
authorities.
5.06 Shareholders' Agreements; Management Agreements;
Employment Agreements; and Affiliate Contracts. On or prior to the Initial
Borrowing Date, there shall have been delivered to the Administrative Agent
a list or schedule of all of the documents listed below, which list or
schedule shall be certified as true and complete by an appropriate officer
of Holdings or the Borrowers (and copies of any of the documents set forth
on such list or schedule shall have been made available to the
Administrative Agent):
(i) all material agreements entered into by Holdings or any
Subsidiary of Holdings as of the Initial Borrowing Date governing
the terms and relative rights of its capital stock (collectively,
the "Shareholders' Agreements");
(ii) all material agreements with members of, or with
respect to the, management of Holdings or any Subsidiary of
Holdings in effect as of the Initial Borrowing Date after giving
effect to the Transaction, other than Employment Agreements
(collectively, the "Management Agreements");
(iii) any material employment agreements entered into by
Holdings or any Subsidiary of Holdings as of the Initial Borrowing
Date after giving effect to the Transaction (collectively, the
"Employment Agreements"); and
(iv) all material contracts, agreements or understandings
entered into between Holdings or any of its Subsidiaries on the one
hand, and any Person (other than Holdings and its Subsidiaries) who
is an Affiliate of Holdings, on the other hand (collectively, the
"Affiliate Contracts").
5.07 Consummation of the Transaction. (a) The Transaction,
including all of the terms and conditions thereof, shall have been duly
approved by the board of directors and (if required by applicable law) the
shareholders or members of the parties thereto, and all Transaction
Documents shall have been duly executed and delivered by the parties
thereto and shall be in full force and effect. The Transaction (other than
the Merger, the elements of the Intercompany Reorganization described in
Item 9 of Schedule XVI and the payment of fees and expenses) shall have
been consummated in accordance with all applicable law and the respective
Transaction Documents.
(b) On or prior to the Initial Borrowing Date, (i) VCP IV
and, at VCP IV's election, other investors reasonably satisfactory to the
Required Banks shall have made a capital contribution to Torque of at least
$53,300,000 in cash in exchange for all the outstanding limited liability
company units of Torque (the "Equity Financing"), and (ii) Torque or Torque
Merger Sub shall have used all of the proceeds from the Equity Financing to
purchase shares of Holdings Common Stock tendered pursuant to the Tender
Offer.
(c) On the Initial Borrowing Date, (i) each of the
conditions to purchase contained in the Tender Offer Documents shall have
been satisfied in all material respects (and not waived) to the reasonable
satisfaction of the Administrative Agent, (ii) all shares of Holdings
Common Stock to be purchased on such date shall have been tendered to
Holdings and Torque, and such shares shall not have been validly withdrawn
and shall be available for purchase in accordance with the terms and
conditions of the Tender Offer Documents and (iii) there shall be
sufficient shares of Holdings Common Stock tendered pursuant to the Tender
Offer such that, immediately following the consummation of the Tender
Offer, Torque, Torque Merger Sub, James Gleason, management of Holdings and
its Subsidiaries, their respective Affiliates and the Foundation shall own
at least 66- 2/3% of the outstanding Holdings Common Stock.
(d) (i) On the Initial Borrowing Date, the total commitments
in respect of the Indebtedness to be Refinanced shall have been terminated,
and all loans with respect thereto shall have been repaid in full, together
with interest thereon, all letters of credit issued thereunder shall have
been terminated (or either incorporated herein as a Letter of Credit or
supported with a Letter of Credit issued hereunder) and all other amounts
due and owing pursuant to the Indebtedness to be Refinanced shall have been
repaid in full and all documents in respect of the Indebtedness to be
Refinanced and all guarantees with respect thereto shall have been
terminated (except as to indemnification provisions, which may survive) and
be of no further force or effect.
(ii) On the Initial Borrowing Date, the creditors in respect
of the Indebtedness to be Refinanced shall have terminated and released all
security interests and Liens (other than Permitted Encumbrances) on the
assets owned by Holdings and its Subsidiaries. The Administrative Agent
shall have received such releases of security interests in and Liens on the
assets owned by Holdings and its Subsidiaries as may have been reasonably
requested by the Administrative Agent, which releases shall be in form and
substance reasonably satisfactory to the Administrative Agent. Without
limiting the foregoing, there shall have been delivered (i) proper
termination statements (Form UCC-3 or the appropriate equivalent) for
filing under the UCC of each jurisdiction where a financing statement (Form
UCC-1 or the appropriate equivalent) was filed with respect to Holdings or
any of its Subsidiaries in connection with the security interests created
with respect to the Indebtedness to be Refinanced and the documentation
related thereto, (ii) termination or reassignment of any security interest
in, or Lien on, any patents, trademarks, copyrights, or similar interests
of Holdings or any of its Subsidiaries on which filings have been made,
(iii) terminations of all mortgages, leasehold mortgages, deeds of trust
and leasehold deeds of trust created with respect to property of Holdings
or any of its Subsidiaries, in each case, to secure the obligations in
respect of the Indebtedness to be Refinanced, all of which shall be in form
and substance reasonably satisfactory to the Administrative Agent, and (iv)
all collateral owned by Holdings or any of its Subsidiaries in the
possession of any of the creditors in respect of the Indebtedness to be
Refinanced or any collateral agent or trustee under any related security
document shall have been returned to Holdings or such Subsidiary.
(e) On or prior to the Initial Borrowing Date, there shall
have been delivered to the Banks true and correct copies of all Documents
entered into in connection with the Transaction (including, without
limitation, the Tender Offer Documents, the documents governing the Equity
Financing, the documents governing the Refinancing and the Merger Documents
then in existence), and, to the extent different from the Tender Offer
Documents or any of the exhibits thereto, all of the material terms and
conditions of such Documents shall be in form and substance reasonably
satisfactory to the Administration Agent.
(f) On the Initial Borrowing Date after giving effect to the
Transaction, the ownership and capital structure (including, without
limitation, the terms of any equity interests, options, warrants or other
securities issued or to be issued by Holdings or any of its Subsidiaries)
as of the Initial Borrowing Date and management of Holdings and its
Subsidiaries shall be as disclosed to the Administrative Agent prior to the
Effective Date or otherwise in form and substance reasonably satisfactory
to the Administrative Agent.
(g) On or prior to the Initial Borrowing Date, all material
conditions precedent to the consummation of the Transaction (other than the
Merger) as is set forth in the documentation related thereto shall have
been satisfied in all material respects and not waived.
5.08 Pledge Agreements. On the Initial Borrowing Date, (i)
each Credit Party shall have duly authorized, executed and delivered a
pledge agreement substantially in the form of Exhibit H-1, (ii) GWR shall
have duly authorized, executed and delivered a pledge agreement
substantially in the form of Exhibit H-2, (iii) GGH shall have duly
authorized, executed and delivered a pledge agreement substantially in the
form of Exhibit H-3, (iv) GGH shall have duly authorized, executed and
delivered a pledge agreement substantially in the form of Exhibit H-4, (x)
GGH shall have duly authorized, executed and delivered a pledge agreement
substantially in the form of Exhibit H-5 and (vi) GWH shall have duly
authorized, executed and delivered a pledge agreement substantially in the
form of Exhibit H-6 (each such pledge agreement, as modified, supplemented
or amended from time to time, a "Pledge Agreement" and collectively, the
"Pledge Agreements"); and each Credit Party shall have (x) delivered to the
Collateral Agent, as Pledgee thereunder all of the Pledged Securities
referred to therein then owned by each such Credit Party (1) endorsed in
blank in the case of promissory notes constituting Pledged Securities and
(2) together with executed and undated irrevocable stock powers, in the
case of capital stock constituting Pledged Securities and (y) taken such
other action to perfect the security interests created thereunder as the
Collateral Agent shall reasonably request.
5.09 Security Agreement. On the Initial Borrowing Date, each
Credit Party (other than GGH and GWH) shall have duly authorized, executed
and delivered a Security Agreement substantially in the form of Exhibit I
(as modified, supplemented or amended from time to time, the "Security
Agreement") covering all of such Credit Party's present and future Security
Agreement Collateral, together with:
(i) proper financing statements (Form UCC-1 or such other
financing statements or similar notices as shall be required by
local law) fully executed for filing under the UCC or other
appropriate filing offices of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by the
Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all tax liens or
effective financing statements that name Holdings or any of its
Subsidiaries (after giving effect to the Transaction), as debtor
and that are filed in the jurisdictions referred to in clause (i)
above, together with copies of such other financing statements
(none of which shall cover the Collateral except to the extent
evidencing Permitted Liens or for which the Collateral Agent shall
receive termination statements (Form UCC-3 or such other
termination statements as shall be required by local law) fully
executed for filing);
(iii) evidence of the completion of, or the making of
arrangements reasonably satisfactory to the Administrative Agent
for the making of, all other recordings and filings of, or with
respect to, the Security Agreement as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect
the security interests intended to be created by such Security
Agreement; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect
and protect the security interests purported to be created by the
Security Agreement have been taken or arrangements reasonably
satisfactory to the Administrative Agent for the taking of such
actions shall have been made.
5.10 Subsidiary Guaranty. On the Initial Borrowing Date,
each Domestic Subsidiary of Holdings (other than GWR, OGA America
Incorporated and MECUP SRL) shall have duly authorized, executed and
delivered a Guaranty substantially in the form of Exhibit J (as
modified, supplemented or amended from time to time, the "Subsidiary
Guaranty"), and such Subsidiary Guaranty shall be in full force and effect.
5.11 Material Adverse Change, etc. On or prior to the
Initial Borrowing Date, since December 31, 1998, nothing shall have
occurred (and the Banks shall have become aware of no facts or conditions
not previously known) which the Administrative Agent or the Required Banks
shall reasonably determine (a) could reasonably be expected to have a
material adverse effect on the rights or remedies of the Banks or the
Administrative Agent, or on the ability of Holdings and its Subsidiaries to
perform their obligations to the Administrative Agent and the Banks under
this Agreement or any other Credit Document or (b) could reasonably be
expected to have a materially adverse effect on the business, assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries taken as a whole.
5.12 Litigation. On the Initial Borrowing Date, no
litigation by any entity (private or governmental) shall be pending or
threatened with respect to this Agreement, any other Document, the
Transaction, or any documentation executed in connection herewith or with
respect to the transactions contemplated hereby (in the case of the
foregoing, except as described on Schedule XV), or which the Administrative
Agent or Required Banks shall reasonably determine could reasonably be
expected to have a materially adverse effect on the Transaction or on the
business, assets, liabilities, operations, properties, condition (financial
or otherwise) or prospects of Holdings and its Subsidiaries taken as a
whole.
5.13 Fees, etc. On the Initial Borrowing Date, the Borrowers
shall have paid in full to the Administrative Agent and the Banks all
costs, fees and expenses (including, without limitation, all reasonable
out-of-pocket legal fees and expenses) payable to the Administrative Agent
and the Banks to the extent then due pursuant hereto or as otherwise agreed
between Holdings and the Administrative Agent.
5.14 Insurance. On or prior to the Initial Borrowing Date,
Holdings shall cause to be delivered to the Administrative Agent and the
Banks evidence (including, without limitation, certificates with respect to
each insurance policy listed on Schedule III) of insurance, complying with
the requirements of Section 7.03, with respect to the business and
properties of Holdings and its Subsidiaries, in scope, form and substance
reasonably satisfactory to the Administrative Agent and naming, in
accordance with the Credit Documents, each of the Collateral Agent, the
Administrative Agent and the Banks as an additional insured and the
Collateral Agent as mortgagee and/or loss payee and stating that such
insurance shall not be canceled or revised without 30 days' prior written
notice by the insurer to the Collateral Agent.
5.15 Approvals. All necessary governmental and material
third party approvals in connection with the Transaction and the other
transactions contemplated by the Documents (other than the Merger) and
otherwise referred to herein or therein (including, but not limited to,
those approvals required in respect of existing permits and transfers of
contract rights) shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes, in
the reasonable judgment of the Administrative Agent or the Required Banks,
adverse conditions upon the consummation of the Transaction or the other
transactions contemplated by the Documents and otherwise referred to herein
or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking
injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the
Transaction, the transactions contemplated by the Documents, the making of
the Loans or the issuance of Letters of Credit.
5.16 Financial Statements; Projections; Management Letter
Reports. (a) On or prior to the Initial Borrowing Date, the Administrative
Agent shall have received:
(i) the consolidated balance sheet of Holdings and its
Subsidiaries as at December 31, 1998 and September 30, 1999, and
the related statements of income, retained earnings and cash flows
for the fiscal year or nine-month period, respectively, ended as
such dates, which, in the case of the annual statement, has been
examined or reviewed (to the extent set forth on such Schedule) by
independent certified public accountants, who delivered an
unqualified opinion in respect thereof; and
(ii) the pro forma (after giving effect to the Transaction
and the related financing thereof, as if same had occurred on such
date and as if Holdings had received recapitalization accounting
treatment with respect to the Tender Offer) consolidated balance
sheet of Holdings as at September 30, 1999;
all of which financial statements in clause (i) shall be prepared in
accordance with generally accepted accounting principles consistent with
past practices and which pro forma balance sheet shall be in form and
substance reasonably satisfactory to the Administrative Agent.
5.17 Solvency Certificate. On the Initial Borrowing Date,
Holdings shall cause to be delivered to the Administrative Agent and the
Banks a solvency certificate substantially in the form of Exhibit G,
executed by the Chief Financial Officer of Holdings, which certificate
shall be addressed to the Administrative Agent and each of the Banks, be
dated the Initial Borrowing Date and set forth the conclusion that, after
giving effect to the Transaction, each of Holdings and its Subsidiaries (on
a consolidated basis), GWR and its Subsidiaries (on a consolidated basis)
and GWR (on a stand-alone basis) are not insolvent and will not be rendered
insolvent by the Indebtedness incurred in connection herewith, will not be
left with unreasonably small capital with which to engage in their
respective business and will not have incurred debts beyond their ability
to pay such debts as they mature and become due.
5.18 Mortgages; Title Insurance; Surveys; etc. On the
Initial Borrowing Date, the Collateral Agent shall have received:
(a) fully executed counterparts of a mortgage or deed to
secure debt or similar documents in form and substance reasonably
satisfactory to the Administrative Agent (as may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof, each, a "Mortgage" and collectively, "Mortgages"), which Mortgages
shall cover all of the Real Property owned by Holdings or any of its
Subsidiaries as designated on Schedule IV as a "Mortgaged Property" (each,
a "Mortgaged Property" and collectively, the "Mortgaged Properties"),
together with evidence that counterparts of the Mortgages have been
delivered to the title insurance company insuring the Lien of the Mortgages
for recording in all places to the extent necessary or, in the reasonable
opinion of the Collateral Agent, desirable to effectively create a valid
and enforceable first priority mortgage lien (subject to Permitted
Encumbrances) on each Mortgaged Property in favor of the Collateral Agent
(or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors;
(b) mortgagee title insurance policies or marked-up
unconditional binders for such insurance in connection with the Mortgaged
Properties issued by Title Associates, Inc. or such other title insurers
reasonably satisfactory to the Administrative Agent (the "Mortgage
Policies") in amounts reasonably satisfactory to the Administrative Agent
assuring the Collateral Agent that the respective Mortgages on such
Mortgaged Properties are valid and enforceable first priority mortgage
liens on the respective Mortgaged Properties, free and clear of all defects
and encumbrances except Permitted Encumbrances and such Mortgage Policies
shall otherwise be in form and substance reasonably satisfactory to the
Administrative Agent and shall include, as appropriate, an endorsement for
future advances under this Agreement, the Notes and the Mortgages and for
any other matter that the Administrative Agent may reasonably request,
shall not include an exception for mechanics' liens unless such liens would
constitute Permitted Liens, and shall provide for affirmative insurance and
such reinsurance (including direct access agreements) as the Administrative
Agent may reasonably request; and
(c) if requested by the Collateral Agent, surveys in form
and substance reasonably satisfactory to the Collateral Agent of each
Mortgaged Property dated a recent date acceptable to the Collateral Agent,
certified in a manner reasonably satisfactory to the Collateral Agent by a
licensed professional surveyor satisfactory to the Collateral Agent.
5.19 Notice of Borrowing; Letter of Credit Request. (a)
Prior to the making of each Loan, the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03.
(b) Prior to the issuance of each Letter of Credit, the
respective Issuing Bank shall have received a Letter of Credit Request
meeting the requirements of Section 2.02.
SECTION 6. Representations and Warranties. In order to
induce the Banks to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, each of
Holdings and each Borrower makes the following representations and
warranties, on behalf of itself and its Subsidiaries, in each case after
giving effect to the Transaction consummated on the Initial Borrowing Date,
with the occurrence of each Credit Event on or after the Initial Borrowing
Date being deemed to constitute a representation and warranty that the
matters specified in this Section 6 are true and correct in all material
respects on and as of the Initial Borrowing Date and on the date of each
such Credit Event (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date):
6.01 Status. Each of Holdings and its Subsidiaries (i) is a
duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization, except
where the failure to be in good standing or, in the case of any Subsidiary
that is not a Borrower, so organized or existing, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole, (ii) has the corporate or
other power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and
(iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the conduct of its business requires
such qualifications except for failures to be so qualified, have such
authority or be in good standing, which, individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities or condition (financial
or otherwise) of Holdings and its Subsidiaries taken as a whole.
6.02 Power and Authority. Each Credit Party has the
corporate or other power and authority to execute, deliver and perform the
terms and provisions of each of the Documents to which it is party and has
taken all necessary corporate or other action to authorize the execution,
delivery and performance by it of each such Document. Each Credit Party has
duly executed and delivered each of the Documents to which it is party, and
each such Document constitutes the legal, valid and binding obligation of
such Credit Party enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (regardless of whether
considered in proceedings in equity or at law) and an implied covenant of
good faith and fair dealing.
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with, or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the properties or assets of Holdings or any
of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which Holdings or any of its
Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of
the certificate of incorporation or by-laws or other organizational
documents, as applicable, of Holdings or any of its Subsidiaries.
6.04 Governmental Approvals. 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 (i) to authorize, or is
required in connection with, the execution, delivery and performance of any
Document by any Credit Party or (ii) to ensure the legality, validity,
binding effect or enforceability of any such Document with respect to any
Credit Party, except those (A) which have been obtained or made prior to
the Initial Borrowing Date, (B) the absence of which, either individually
or in the aggregate, could not reasonably be expected to have a material
adverse effect on either (x) the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole or (y) the rights or remedies of the Banks or
the Administrative Agent or on the ability of Holdings or any of its
Subsidiaries to perform their respective obligations hereunder and under
the other Documents to which they are, or will be, a party or (C) for
filings and recordings required to perfect the security interests created
under the Security Documents, which filings and recordings will be made
within 10 Business Days after the Initial Borrowing Date.
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities. (a) The consolidated statements of financial condition of
Holdings and its Subsidiaries at December 31, 1998 and at September 30,
1999 and the related consolidated statements of income and cash flows of
Holdings and its Subsidiaries for the fiscal year or nine-month period, as
the case may be, ended on such date, and furnished to the Banks prior to
the Initial Borrowing Date, present fairly (subject to normal year-end
adjustments in the case of the September 30, 1999 financial statements) the
consolidated financial condition of Holdings and its Subsidiaries at the
date of such consolidated statements of financial condition and the
consolidated results of the operations of Holdings and its Subsidiaries for
the respective fiscal year or nine-month period, as the case may be. All
such consolidated financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
applied. The pro forma consolidated balance sheet of Holdings as of
September 30, 1999, a copy of which has heretofore been furnished to each
Bank, presents a good faith estimate of the consolidated pro forma
financial condition of Holdings after giving effect to the Transaction, and
assuming Holdings received recaptialization treatment with respect to the
Tender Offer, at the date thereof. Since December 31, 1998, there has been
no material adverse change in the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole.
(b) On and as of the Initial Borrowing Date, on a pro forma
basis after giving effect to the Transaction occurring on such date and to
all Indebtedness (including the Loans) being incurred or assumed on such
date and Liens created by the Credit Parties in connection therewith, (x)
the sum of the assets, at a fair valuation, of Holdings and its
Subsidiaries (on a consolidated basis), GWR and its Subsidiaries (on a
consolidated basis) and of GWR (on a stand-alone basis) will exceed their
respective debts, (y) each of Holdings and its Subsidiaries (on a
consolidated basis), GWR and its Subsidiaries (on a consolidated basis) and
GWR (on a stand-alone basis) have not incurred and do not intend to incur,
and do not believe that they will incur, debts beyond their ability to pay
such debts as such debts mature and (z) each of Holdings and its
Subsidiaries (on a consolidated basis), GWR and its Subsidiaries (on a
consolidated basis) and GWR (on a stand-alone basis) have sufficient
capital with which to conduct its business. For purposes of this Section
6.05(b) "debt" means any liability on a claim, and "claim" means (i) right
to payment whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 6.05(a), there were as of the Initial
Borrowing Date no liabilities or obligations with respect to Holdings or
any of its Subsidiaries of any nature whatsoever (whether absolute,
accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, could reasonably be expected to be materially
adverse to Holdings and its Subsidiaries taken as a whole.
6.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Holdings or any Borrower, threatened
(i) with respect to the Transaction, the Credit Documents, or any other
Document (except as described on Schedule XV and any other actions, suits
or proceedings relating to or arising from a similar cause of action) or
(ii) that could reasonably be expected to materially and adversely affect
the business, operations, property, assets, liabilities or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole.
6.07 True and Complete Disclosure. Except to the extent set
forth in the immediately succeeding sentence, all factual information
(taken as a whole) furnished by or on behalf of Holdings or any of its
Subsidiaries in writing to the Administrative Agent or any Bank (including,
without limitation, all information contained in the Credit Documents) for
purposes of or in connection with this Agreement, the other Credit
Documents or any transaction contemplated herein or therein is true and
accurate in all material respects on the date as of which such information
is dated or certified and not incomplete by omitting to state any fact
necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which
such information was provided. The financial projections and other pro
forma financial information contained therein are based on good faith
estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Administrative Agent and the Banks
that projections as to future events are not to be viewed as facts or
factual information and that actual results during the period or periods
covered thereby may differ from the projected results.
6.08 Use of Proceeds; Margin Regulations. (a) All proceeds
of the A Term Loans and the B Term Loans shall be used by the applicable
Borrowers (i) to effect the Transaction and (ii) to pay fees and expenses
related to the Transaction; provided that (i) the proceeds of A-1 Term
Loans and B-1 Term Loans incurred on the Merger Date shall be used first to
repay all amounts owing under the Torque Credit Agreement (with any excess
proceeds to be used for the purposes provided above) and (ii)(x) prior to
the consummation of the Merger, up to $5,000,000 of Term Loans may be used
for the Borrowers' working capital and general corporate purposes and (y)
thereafter, any proceeds of any Term Loans in excess of those amounts
necessary to consummate the Transaction (including the repayment of all
amounts owing under the Torque Credit Agreement) and to pay any fees and
expenses related thereto may be used for the Borrowers' working capital and
general corporate purposes .
(b) All proceeds of Revolving Loans and Swingline Loans may
be used (i) for working capital and general corporate purposes (including,
without limitation, Permitted Acquisitions) and (ii) to effect the
Transaction and pay fees and expenses related thereto; provided that no
more than $12,500,000 may be used on the Initial Borrowing Date for the
purposes set forth in clause (ii) above (provided further, that more than
$12,500,000 of Revolving Loans and Swingline Loans may be incurred on the
Initial Borrowing Date and used for such purposes, if needed to consummate
the Transaction and pay such fees and expenses, so long as the excess over
$12,500,000 is matched by cash and/or Cash Equivalents available to
Holdings and its Subsidiaries at such time).
(c) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock; provided that the Borrowers,
Holdings or any of their Subsidiaries may use the proceeds of Loans to
purchase Margin Stock pursuant to the Tender Offer in compliance with
Regulations T, U and X, so long as at the time of the making of such Loan,
and after giving effect thereto, not more than 25% of the value of the
assets subject to the provisions of Section 8 of Holdings, any Borrower,
Holdings and its Subsidiaries on a consolidated basis, or any Borrower and
its Subsidiaries on a consolidated basis, shall constitute Margin Stock.
Neither the making of any Loan nor the use of the proceeds thereof nor the
occurrence of any other Credit Event will violate or be inconsistent with
the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
6.09 Tax Returns and Payments. Each of Holdings and each of
its Subsidiaries has timely filed or caused to be timely filed (including
pursuant to any valid extensions of time for filing) thereof or with the
appropriate taxing authority, all material returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with respect
to the income, properties or operations of each of Holdings and its
Subsidiaries, as the case may be. The Returns accurately reflect in all
material respects all liability for taxes of Holdings and its Subsidiaries
as a whole for the periods covered thereby. Each of Holdings and its
Subsidiaries have paid all material taxes payable by them which have become
due other than those contested in good faith and for which adequate
reserves have been established in accordance with generally accepted
accounting principles. Except as set forth on Schedule XIII, as of the
Initial Borrowing Date, there is no action, suit, proceeding,
investigation, audit, or claim now pending or, to the best knowledge of
Holdings or any of its Subsidiaries, threatened in writing by any authority
regarding any taxes relating to Holdings or any of its Subsidiaries. Except
as set forth on Schedule XIII, as of the Initial Borrowing Date, neither
Holdings nor any of its Subsidiaries has entered into an agreement or
waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of any
material taxes of Holdings or any of its Subsidiaries. None of Holdings or
any of its Subsidiaries has provided, with respect to it or property held
by it, any consent under Section 341 of the Code. None of Holdings or any
of its Subsidiaries has incurred, or will incur, any material tax liability
in connection with the Transaction or any other transactions contemplated
hereby (excluding any future tax liabilities of Holdings or any of its
Subsidiaries arising as a result of the operation of their businesses in
the ordinary course of business).
6.10 ERISA. (a) Schedule V sets forth each Plan. Each Plan
(and each related trust, insurance contract or fund) other than any Foreign
Pension Plan is in substantial compliance with its terms and with all
applicable laws, including, without limitation, ERISA and the Code; each
Plan (and each related trust, if any) which is intended to be qualified
under Section 401(a) of the Code has received a determination letter from
the Internal Revenue Service to the effect that it meets the requirements
of Sections 401(a) and 501(a) of the Code except where failure to be so
qualified could not reasonably be expected to give rise to a material
liability; no Reportable Event has occurred with respect to any Plan, other
than a Foreign Pension Plan, that is reasonably likely to give
rise to a material liability; no Multiemployer Plan is insolvent or in
reorganization; no Plan (other than a Foreign Pension Plan) has an Unfunded
Current Liability which, when added to the aggregate amount of Unfunded
Current Liabilities with respect to all other Plans, would result or
reasonably be expected to result in a material liability; no Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the
Code or ERISA, or has applied for or received a waiver of an accumulated
funding deficiency or an extension of any amortization period, within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all
contributions required to be made with respect to a Plan (other than a
Foreign Pension Plan) and each Multiemployer Plan have been timely made
except to the extent that any failure to make such contribution will not
result in a material liability; neither Holdings, the Borrowers or any of
their Subsidiaries nor any ERISA Affiliate has incurred any material
liability (including any indirect, contingent or secondary liability) to or
on account of a Plan or Multiemployer Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or expects to incur any such material
liability under any of the foregoing sections with respect to any Plan or
Multiemployer Plan; no condition exists which presents a material risk to
Holdings, the Borrowers or any of their Subsidiaries or any ERISA Affiliate
of incurring a material liability to or on account of a Plan or
Multiemployer Plan pursuant to the foregoing provisions of ERISA and the
Code; no proceedings have been instituted to terminate or appoint a trustee
to administer any Plan which is subject to Title IV of ERISA; no action,
suit, proceeding, hearing, audit or, to the knowledge of the Borrowers,
investigation with respect to the administration, operation or the
investment of assets of any Plan (other than a Foreign Pension Plan) (other
than routine claims for benefits) is pending, expected or threatened other
than any such event that could not reasonably be expected to result in a
material liability; using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of Holdings, the Borrowers or any of their Subsidiaries and its
ERISA Affiliates to all Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of
each such Plan ended prior to the date hereof, would not result or
reasonably be expected to result in a material liability; each group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) which covers or has covered employees or former employees of
Holdings, the Borrowers or any of their Subsidiaries, or any ERISA
Affiliate has at all times been operated in compliance with the provisions
of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code,
to the extent required, except to the extent that any such noncompliance
will not result in or reasonably be expected to result in a material
liability; no lien imposed under the Code or ERISA on the assets of
Holdings, the Borrowers or any of their Subsidiaries or any ERISA Affiliate
exists or is likely to arise on account of any Plan or Multiemployer Plan;
and Holdings, the Borrower and its Subsidiaries do not maintain or
contribute to any employee welfare benefit plan (as defined in Section 3(1)
of ERISA) which provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any Plan
(other than a Foreign Pension Plan) the obligations with respect to which
could reasonably be expected to have a material adverse effect on the
ability of Holdings or Borrower to perform their obligations under this
Agreement.
(b) Each Foreign Pension Plan has been maintained in
substantial compliance with its terms and with the requirements of any and
all applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable regulatory
authorities. All contributions required to be made with respect to a
Foreign Pension Plan have been timely made. Neither Holdings, the Borrowers
nor any of their Subsidiaries has incurred any obligation in connection
with the termination of, or withdrawal from, any Foreign Pension Plan. The
present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan, determined as of the end of Holdings' and
the Borrowers' most recently ended fiscal year on the basis of the
actuarial assumptions described in Holdings' Form 10-K for its 1998 fiscal
year, did not exceed the aggregate of (i) the current value of the assets
of such Foreign Pension Plan allocable to such benefit liabilities and (ii)
the amount then reserved on Holdings' consolidated balance sheet in respect
of such liabilities (and such amount reserved on Holdings' consolidated
balance sheet is not likely to have a material adverse effect on the
business, property, assets, liabilities or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole).
6.11 The Security Documents. (a) The provisions of the
Security Agreement are effective to create in favor of the Collateral Agent
for the benefit of the Secured Creditors a legal, valid and enforceable
security interest in, and/or Lien on, all right, title and interest of each
Credit Party thereto in the Security Agreement Collateral described therein
that is subject to Article 8 or 9 of the UCC or constitutes patents,
trademarks or copyrights, and each Security Agreement (upon satisfaction of
any filing or other requirements set forth therein) creates a fully
perfected first Lien on, and/or security interest in, all right, title and
interest of such Credit Party in all of such Security Agreement Collateral,
subject to no other Liens other than Permitted Liens. The recordation of
the Assignment of Security Interest in U.S. Patents and Trademarks in the
form attached to the Security Agreement in the United States Patent and
Trademark Office together with filings on Form UCC-1 made pursuant to the
Security Agreement will be effective, under applicable law, to perfect the
security interest granted to the Collateral Agent in the trademarks and
patents covered by the Security Agreement.
(b) The security interests created in favor of the
Collateral Agent, as Pledgee, for the benefit of the Secured Creditors
under the Pledge Agreement constitute (upon satisfaction of any filing or
other requirements in respect of the Pledged Stock issued by any Foreign
Subsidiary) first priority perfected security interests in the Pledged
Securities (assuming, in respect of certificated Pledged Stock and Pledged
Securities constituting promissory notes, the Collateral Agent's continuous
possession thereof) described in the Pledge Agreement, subject to no
security interests of any other Person (other than Liens permitted under
Section 8.01(i)). Except as provided in the immediately preceding sentence,
no filings or recordings are required in order to perfect (or maintain the
perfection or priority of) the security interests created in the Pledged
Securities and the proceeds thereof under the Pledge Agreement (other than
filings of proper UCC-1 Financing Statements in respect of Pledged
Securities constituting promissory notes, which filings have been made).
(c) Each of the Mortgages creates, as security for the
obligations purported to be secured thereby, a valid, enforceable (upon
satisfaction of any filing or other requirements set forth therein) and
perfected security interest in and mortgage lien on the respective
Mortgaged Property in favor of the Collateral Agent (or such other trustee
as may be required or desired under local law) for the benefit of the
Secured Creditors, superior to and prior to the rights of all third Persons
and subject to no other Liens (except, in each case, Permitted Liens).
Schedule IV contains a true and complete list of each material parcel of
Real Property owned or leased by Holdings and its Subsidiaries on the
Initial Borrowing Date, and sets forth the type of interest therein held by
Holdings or such Subsidiary.
6.12 Properties. Each of Holdings and each of its
Subsidiaries has good and marketable title to all material properties owned
by them, including all material property reflected in the consolidated
balance sheets of Holdings referred to in Section 6.05(a) (except as sold
or otherwise disposed of since the date of such balance sheets as permitted
by this Agreement or the Documents) clear of all Liens, other than (i) as
referred to in the balance sheet or in the notes thereto or in the pro
forma balance sheet or (ii) Permitted Liens.
6.13 Capitalization. On the Initial Borrowing Date, except
as set forth on Schedule VI (and other than any applicable statutory
preemptive rights), no Subsidiary of Holdings has outstanding any
securities convertible into or exchangeable for its membership interests or
outstanding any rights to subscribe for or to purchase, or any options for
the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character
relating to, its membership interests.
6.14 Subsidiaries. Schedule VII lists each Subsidiary of
Holdings, and the direct and indirect ownership interest of Holdings
therein, in each case as of the Initial Borrowing Date and after giving
effect to the Transaction.
6.15 Compliance with Statutes, etc. Each of Holdings and
each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliance as
could not, individually or in the aggregate, reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole.
6.16 Investment Company Act. None of Holdings or any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
6.17 Public Utility Holding Company Act. None of Holdings or
any of its Subsidiaries is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
6.18 Environmental Matters. (a) Each of Holdings and each of
its Subsidiaries has complied and is in compliance with all applicable
Environmental Laws and the requirements of any permits issued under such
Environmental Laws. There are no past, pending or, to the best knowledge of
Holdings or any of its Subsidiaries, threatened Environmental Claims
against Holdings or any of its Subsidiaries or any Real Property currently
or, to the best knowledge of Holdings or any of its Subsidiaries,
previously owned or operated by Holdings or any of its Subsidiaries. There
are no facts, circumstances, conditions or occurrences on any Real Property
currently owned or operated by Holdings or any of its Subsidiaries or, to
the best knowledge of Holdings or any of its Subsidiaries, on any formerly
owned or operated Real Property or any property adjoining or in the
vicinity of any currently owned or operated Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim
against Holdings or any of its Subsidiaries or any currently owned or
operated Real Property or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property by Holdings or any of its
Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, or Released on or
from, any Real Property owned or operated by Holdings or any of its
Subsidiaries except in compliance with all Environmental Laws and
reasonably required in connection with the operation, use and maintenance
of any such Real Property by Holdings' or such Subsidiary's business. There
are not now any underground storage tanks owned or operated by Holdings or
of its Subsidiaries located on any Real Property owned or operated by
Holdings or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary in this Section
6.18, the representations made in this Section 6.18 shall only be untrue if
the effect of the failures, noncompliance and other circumstances of the
types described above, either individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities or condition (financial or
otherwise) of Holdings and its Subsidiaries taken as a whole.
6.19 Labor Relations. None of Holdings or any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole. There is (i) no unfair
labor practice complaint pending against Holdings or any of its
Subsidiaries or, to the best knowledge of Holdings or the Borrowers,
threatened against any of them, before the National Labor Relations Board,
and no significant grievance or significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against
Holdings or any of its Subsidiaries or, to the best knowledge of Holdings
or the Borrowers, threatened against any of them, (ii) no strike, labor
dispute, slowdown or stoppage pending against Holdings or any of its
Subsidiaries or, to the best knowledge of Holdings or the Borrowers,
threatened against Holdings or any of its Subsidiaries and (iii) no union
representation question exists with respect to the employees of Holdings or
any of its Subsidiaries, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate)
such as could not reasonably be expected to have a material adverse effect
on the business, operations, property, assets, liabilities or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole.
6.20 Intellectual Property. Each of Holdings and each of its
Subsidiaries owns or possesses valid licenses or other legal rights to use
all patents, trademarks, service marks, trade names, copyrights, trade
secrets and other proprietary intellectual property rights necessary for
the present and proposed conduct of its business, without any known
conflict with the rights of others except, with respect to any matter
specified in this Section 6.20, as could not reasonably be expected
to result in a material adverse effect on the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole.
6.21 Indebtedness. Schedule VIII sets forth a true and
complete list of all Indebtedness of Holdings and its Subsidiaries as of
the Initial Borrowing Date and which is to remain outstanding after giving
effect to the consummation of the Transaction (excluding Indebtedness
permitted under Section 8.04, other than clause (ii) thereof, all such
non-excluded Indebtedness, the "Existing Indebtedness"), in each case
showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly
guaranteed such debt.
6.22 Transaction. At the time of consummation thereof, each
element of the Transaction shall have been consummated in accordance in all
material respects with the terms of the relevant Documents therefor and all
applicable laws.
6.23 Representations and Warranties in Documents. All
representations and warranties of each Credit Party set forth in the
Documents were true and correct in all material respects as of the time
such representations and warranties were made and shall be true and correct
in all material respects as of the Initial Borrowing Date as if such
representations and warranties were made on and as of such date, unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
6.24 Special Purpose Corporation. Torque Merger Sub was
formed solely to effect the Transaction and, except in connection therewith
(and as contemplated by the Documents), has no significant assets or
liabilities (other than (i) Holdings Common Stock acquired pursuant to the
Tender Offer and (ii) under this Agreement and the other Documents to which
it is party) and has engaged in no substantial business activities.
6.25 Insurance. Set forth on Schedule III hereto is a true,
correct and complete list of all material insurance carried by each Credit
Party on and as of the Initial Borrowing Date.
6.26 Year 2000. Holdings reasonably believes that all
computer applications that are material to its or any of its Subsidiaries'
business and operations are able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, are
"Year 2000 Compliant"), except to the extent that a failure to do so would
not reasonably have a material adverse effect on the performance, business,
assets, nature of assets, liabilities, operations, properties or condition
(financial or otherwise) of Holdings and its Subsidiaries, taken as a
whole.
SECTION 7. Affirmative Covenants. Each of Holdings and each
Borrower hereby covenants and agrees for itself and each of its
Subsidiaries that on and after the Initial Borrowing Date and thereafter
for so long as this Agreement is in effect and until the Total Commitment
and all Letters of Credit have terminated and the Loans, Notes and Unpaid
Drawings, together with all accrued but unpaid interest, Fees and other
Obligations, are paid in full:
7.01 Information Covenants. Holdings will furnish to the
Administrative Agent (which shall promptly distribute a copy to each Bank):
(a) Monthly Reports. As soon as practicable, and in any
event within 30 days, after the end of each monthly accounting period of
each fiscal year (other than the last monthly accounting period in any
fiscal quarter and fiscal year) of Holdings, commencing with the month of
February, 2000, a financial summary (accompanied by management narrative
where appropriate) showing orders, backlog and shippings for such monthly
period.
(b) Quarterly Financial Statements. Within 45 days after the
close of the first three quarterly accounting periods in each fiscal year
of Holdings, commencing with the period ending March 31, 2000, the
consolidated balance sheet of Holdings and its Subsidiaries as at the end
of each such quarterly accounting period and the related consolidated
statement of income and the related consolidated statement of cash flows
for each such quarterly accounting period and for the elapsed portion of
the fiscal year ended with the last day of each such quarterly accounting
period (other than the fourth quarterly accounting period), setting forth
comparative figures for the related periods in the prior fiscal year, all
of which shall be in reasonable detail and certified by the chief financial
officer or treasurer of Holdings that they fairly present in all material
respects the financial condition of Holdings and its Subsidiaries as of the
dates indicated and the results of their operations and changes in their
cash flows for the periods indicated, subject to normal year-end audit
adjustments and shall be accompanied by a management narrative of the
results of operations and financial condition with respect to such period.
(c) Annual Financial Statements. Within 90 days after the
close of each fiscal year of Holdings, the consolidated balance sheet of
Holdings and its Subsidiaries as at the end of such fiscal year and the
related consolidated statement of income and the related consolidated
statement of cash flows for such fiscal year setting forth comparative
figures for the preceding fiscal year and certified by any of the "big
five" independent certified public accountants or such other independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent, together with a report of such
accounting firm stating that in the course of its regular audit of the
financial statements of Holdings, the Borrowers and each of their
Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge of
any Event of Default which has occurred and is continuing under Sections
8.07 through 8.09, inclusive, or, if in the opinion of such accounting firm
such an Event of Default has occurred and is continuing, a statement as to
the nature thereof and shall be accompanied by a management discussion and
analysis of the results of operations and financial condition with respect
to such period.
(d) Budgets. No later than 30 days after the first day of
each fiscal year of Holdings, a budget in form reasonably satisfactory to
the Administrative Agent (including budgeted statements of income and cash
flows and balance sheets) prepared by Holdings for (x) each quarterly
accounting period in such fiscal year prepared in detail and (y) such
fiscal year prepared in summary form, in each case, of Holdings and its
Subsidiaries on a consolidated basis, accompanied by the statement of the
chief financial officer or treasurer of Holdings to the effect that, to the
best of such officer's knowledge, the budget is a reasonable good faith
estimate of the period covered thereby. Additionally, within 60 days after
the consummation of each Permitted Acquisition, a revised budget in the
form described above taking into account the effects of such Permitted
Acquisition on the budget for the remainder of the fiscal year covered by
the original budget.
(e) Officers' Certificates. At the time of the delivery of
the financial statements provided for in Section 7.01(b) and (c), a
certificate of the chief financial officer or treasurer of Holdings to the
effect that no Default or Event of Default has occurred and is continuing
or, if any Default or Event of Default has occurred and is continuing,
specifying the nature and extent thereof, which certificate shall (x) set
forth the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of Sections 8.03, 8.04,
8.05 and 8.07 through 8.09, inclusive, at the end of such fiscal quarter or
year, as the case may be and (y) if delivered with the financial statements
required by Section 7.01(c), set forth the amount of (and the calculations
required to establish) Excess Cash Flow for the respective Excess Cash
Payment Period.
(f) Management Letters. Promptly after Holdings', or any of
its Subsidiaries' receipt thereof, a copy of any "management letter"
received by Holdings, or such Subsidiary from its certified public
accountants and the management's responses thereto.
(g) Notice of Default or Litigation. Promptly, and in any
event within five Business Days after an officer of Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or an Event of Default (provided such
Default or Event of Default is continuing) and (ii) any litigation or
governmental investigation or proceeding pending or threatened (x) against
Holdings or any of its Subsidiaries which could reasonably be expected to
materially and adversely affect the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole or (y) with respect to any Credit Document.
(h) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports,
if any, which Holdings or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereto (the "SEC") or
deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, Administrative
Agent or other representative therefor) (but excluding administrative and
other immaterial notices pursuant to such Indebtedness documentation) and
not otherwise required to be delivered hereunder.
(i) Environmental Matters. Promptly upon, and in any event
within 30 Business Days after, an executive, financial or compliance
officer of Holdings or any of its Subsidiaries obtains knowledge thereof,
notice of one or more of the following environmental matters, unless such
environmental matters could not, individually or when aggregated with all
other such environmental matters, be reasonably expected to materially and
adversely affect the business, operations, property, assets, liabilities or
condition (financial or otherwise) of Holdings and its Subsidiaries taken
as a whole, provided that in any event Holdings and its Subsidiaries shall
deliver to the Banks all material notices relating to such matters received
by Holdings or any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA:
(i) any pending or threatened (in writing) Environmental
Claim against Holdings or any of its Subsidiaries or any Real
Property owned or operated by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on, or arising from, any
Real Property owned or operated by Holdings or any of its
Subsidiaries that (a) results in noncompliance by Holdings or any
of its Subsidiaries with any applicable Environmental Law or (b)
could reasonably be expected to form the basis of an Environmental
Claim against Holdings or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned
or operated by Holdings or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or
transferability by Holdings or any of its Subsidiaries of such Real
Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by Holdings or any
of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and Holdings', or such Subsidiary's response thereto.
(j) Annual Meetings with Banks. At the request of the
Administrative Agent, Holdings shall, once during each fiscal year, hold a
meeting (at a mutually agreeable location and time) with all of the Banks
at which meeting the financial results of the previous fiscal year and the
financial condition of Holdings and its Subsidiaries and the budgets
presented for the current fiscal year shall be reviewed.
(k) Shareholders and Affiliates. By no later than February
28 of each year, a list of each shareholder and Affiliate of GGH as of the
immediately preceding December 31.
(l) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to Holdings
or any of its Subsidiaries as the Administrative Agent or any Bank may
reasonably request in writing.
7.02 Books, Records and Inspections. Holdings will, and will
cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with generally
accepted accounting principles (or the comparable foreign equivalent
thereof) and all requirements of law shall be made of all material dealings
and transactions in relation to its business and activities. Holdings will,
and will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and
inspect, during regular business hours and under guidance of officers of
Holdings or such Subsidiary, any of the properties of Holdings or any of
its Subsidiaries, and, subject to the foregoing requirements, to examine
the books of account of Holdings and any of its Subsidiaries and discuss
the affairs, finances and accounts of Holdings and any of its Subsidiaries
with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals, upon
such reasonable notice and to such reasonable extent as the Administrative
Agent or such Bank may request.
7.03 Maintenance of Property; Insurance. (a) Holdings and
each Borrower will, and will cause each of their Subsidiaries to, (i) keep
all material property necessary and useful in its business in good working
order and condition, (ii) maintain insurance on its property with reputable
and solvent insurance companies in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice
and (iii) furnish to each Bank, upon written request, full information as
to the insurance carried.
(b) Holdings will, and will cause each of its Subsidiaries
to, at all times keep their respective property in which a Lien has been
granted to the Collateral Agent insured in favor of the Collateral Agent,
and all policies (including the Mortgage Policies) or certificates (or
certified copies thereof) with respect to such insurance (and any other
insurance maintained by Holdings, the Borrowers or any such Subsidiary) (i)
shall be endorsed to the Collateral Agent's reasonable satisfaction for the
benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee (with respect to Collateral) or, to the
extent permitted by applicable law, as an additional insured), (ii) shall
state that such insurance policies shall not be canceled without 30 days'
prior written notice thereof (or 10 days' prior written notice in the case
of cancellation for the non-payment of premiums) by the respective insurer
to the Collateral Agent and (iii) shall be deposited with the Collateral
Agent. Notwithstanding the foregoing, if the Collateral Agent receives
insurance proceeds which are not required to be applied to repay the Term
Loans pursuant to Section 4.02(h), such proceeds shall be distributed to
Holdings or its applicable Subsidiary, as the case may be.
(c) If Holdings or any of its Subsidiaries shall fail to
maintain all insurance in accordance with this Section 7.03, or if Holdings
or any of its Subsidiaries shall fail to so endorse and deposit all
policies or certificates with respect thereto, the Administrative Agent
and/or the Collateral Agent shall have the right (but shall be under no
obligation), upon notice to Holdings and each Borrower, to procure such
insurance, and Holdings and each Borrower agree to reimburse the
Administrative Agent or the Collateral Agent, as the case may be, for all
reasonable out-of-pocket costs and expenses of procuring such insurance.
7.04 Franchises, etc. Holdings will, and will 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 material
rights, franchises, licenses and, to the extent required by the Security
Agreement, trademarks, copyrights and patents; provided, however, that
nothing in this Section 7.04 shall prevent (i) transactions permitted by
Section 8.02 or (ii) the withdrawal by Holdings or any of its Subsidiaries
of qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities or
condition (financial or otherwise) of Holdings and its Subsidiaries taken
as a whole.
7.05 Compliance with Statutes, etc. Holdings will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliance as
could not, individually or in the aggregate, reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole.
7.06 Compliance with Environmental Laws. (a) (i) Holdings
will comply, and will use its best efforts to cause each of its
Subsidiaries to comply, with all Environmental Laws applicable to the
ownership or use of its Real Property now or hereafter owned or operated by
Holdings or any of its Subsidiaries, will promptly pay or cause to be paid
all costs and expenses incurred in connection with such compliance, and
will keep or cause to be kept all such Real Property free and clear of any
Liens imposed pursuant to such Environmental Laws and (ii) neither
Holdings, the Borrowers nor any of their Subsidiaries will generate, use,
treat, store, release or dispose of, or permit the generation, use,
treatment, storage, release or disposal of Hazardous Materials on any Real
Property now or hereafter owned or operated by Holdings or any of its
Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, except to the extent that the
failure to comply with the requirements specified in clause (i) or (ii)
above, either individually or in the aggregate, could not reasonably be
expected to result in liability under Environmental Laws that could have a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole. If required to do so under any applicable
legally binding directive or order of any governmental agency, Holdings and
each Borrower agree to undertake, and cause each of their Subsidiaries to
undertake, to the extent required under applicable Environmental Laws, any
clean up, removal, remedial or other action necessary to remove and clean
up any Hazardous Materials from any Real Property owned or operated by
Holdings or any of its Subsidiaries in accordance with the requirements of
all applicable Environmental Laws and in accordance with such legally
binding orders and directives of all governmental authorities, except to
the extent that (x) Holdings, such Borrower or such Subsidiary is
contesting such order or directive in good faith and by appropriate
proceedings and for which adequate reserves have been established to the
extent required by generally accepted accounting principles or (y) the
failure to take any such action could not reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities or condition (financial or otherwise) of Holdings and its
Subsidiaries taken as a whole.
(b) At the written request of the Administrative Agent or
the Required Banks, at any time and from time to time as is reasonable
after (i) the Obligations have become due and payable pursuant to Section 9
or (ii) the Banks receive notice under Section 7.01(i) for any event for
which notice is required to be delivered with respect to conditions at any
Real Property, Holdings and the Borrowers will provide, at their sole cost
and expense, an environmental site assessment report of reasonable scope
and expense concerning any relevant Real Property now or hereafter owned or
operated by Holdings or any of its Subsidiaries, prepared by an
environmental consulting firm approved by the Administrative Agent in its
reasonable discretion, indicating the presence or absence of Hazardous
Materials and the potential cost of any removal or remedial action in
connection with any Hazardous Materials on such Real Property. If Holdings
and the Borrowers fail to provide the same within 45 days after such
request was made, the Administrative Agent may order the same, and Holdings
and the Borrowers, to the extent Holdings and the Borrowers have the
authority to do so, shall grant and hereby grants, to the Administrative
Agent and the Banks and their Administrative Agents, access to such Real
Property and specifically grants the Administrative Agent and the Banks an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at Holdings and the Borrowers' expense.
7.07 ERISA. As soon as possible and, in any event, within 15
days after Holdings, the Borrowers or any of their Subsidiaries or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, Holdings will deliver to each of the Banks a certificate of the
chief financial officer of Holdings setting forth the full details as to
such occurrence and the action, if any, that Holdings, the Borrowers or any
such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given or filed by such
Borrower, such Subsidiary, the Plan administrator or such ERISA Affiliate
to or with the PBGC or any other government agency, or a Plan or
Multiemployer Plan participant and any notices received by Holdings, such
Borrower, such Subsidiary or ERISA Affiliate from the PBGC or any other
government agency, or a Plan or Multiemployer Plan participant with respect
thereto: that a Reportable Event has occurred (except to the extent that
Holdings, the Borrowers or any of their Subsidiaries has previously
delivered to the Banks a certificate and notices (if any) concerning such
event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of
ERISA is subject to the advance reporting requirement of PBGC Regulation
Section 4043.61 (without regard to subparagraph (b)(1) thereof), and an
event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur with respect to
such Plan within the following 30 days; that an accumulated funding
deficiency, within the meaning of Section 412 of the Code or Section 302 of
ERISA, has been incurred or an application is reasonably expected to be or
has been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan or Multiemployer Plan; that any contribution
required to be made with respect to a Plan, Multiemployer Plan or Foreign
Pension Plan has not been timely made; that a Plan or Multiemployer Plan
has been or is reasonably expected to be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan or
Multiemployer Plan has an Unfunded Current Liability; that proceedings are
reasonably expected to be or have been instituted to terminate or appoint a
trustee to administer a Plan which is subject to Title IV of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect
a delinquent contribution to a Multiemployer Plan; that Holdings, the
Borrowers, any of their Subsidiaries or any ERISA Affiliate will or are
reasonably expected to incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan or Multiemployer Plan under
Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect
to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(l) of ERISA or with respect to a group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code; or that Holdings, the Borrowers or
any of their Subsidiaries are reasonably expected to incur any material
liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
Plan or any Foreign Pension Plan. Holdings and the Borrowers will deliver
to each of the Banks copies of any records, documents or other information
that must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA. At the request of the Administrative Agent, Holdings
and the Borrowers will also deliver to the Administrative Agent, which
request may only be made for those filings (as set forth hereinbelow) in
the year in which such filings are due or for the prior years, a complete
copy of the annual report (on Internal Revenue Service Form 5500-series) of
each Plan, other than a Multiemployer Plan (including, to the extent
required, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information)
required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Banks pursuant to the first
sentence hereof, copies of annual reports and any records, documents or
other information required to be furnished to the PBGC (other than PBGC
Form 1) or any other government agency, and any material notices received
by Holdings, the Borrowers, any of their Subsidiaries or any ERISA
Affiliate with respect to any Plan or Foreign Pension Plan or received from
any government agency or plan administrator or sponsor or trustee with
respect to any Multiemployer Plan, shall be delivered to the Banks no later
than ten (10) days after the date such records, documents and/or
information has been furnished to the PBGC or any other government agency
or such notice has been received by Holdings, the Borrowers, any of their
Subsidiaries or the ERISA Affiliate, as applicable. Holdings, the Borrowers
and each of their applicable Subsidiaries shall ensure that all Foreign
Pension Plans administered by it or into which it makes payments obtains or
retains (as applicable) registered status under and as required by
applicable law and is administered in a timely manner in all respects in
compliance with all applicable laws except where the failure to do any of
the foregoing would not be reasonably likely to result in a material
adverse effect upon the business, operations, condition (financial or
otherwise) or prospects of Holdings and its Subsidiaries, taken as a whole.
7.08 End of Fiscal Years; Fiscal Quarters. Holdings will
cause (i) each of its, and each of its material Subsidiaries' (including,
without limitation, each Credit Party's), fiscal years to end on December
31 and (ii) each of such Person's fiscal quarters to end on March 31, June
30, September 30 and December 31 of each year.
7.09 Performance of Obligations. Holdings and the Borrowers
will, and will cause each of their Subsidiaries to, perform all of its
obligations under the terms of each mortgage, deed of trust, indenture,
loan agreement or credit agreement and each other material agreement,
contract or instrument by which it is bound, except such non-performances
as could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the business, operations, property,
assets, liabilities or condition (financial or otherwise) of Holdings and
its Subsidiaries taken as a whole; provided that the failure to pay any
Indebtedness shall not constitute a breach of this Section 7.09 unless it
shall give rise to an Event of Default under Section 9.04.
7.10 Payment of Taxes. Holdings will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all material
taxes, assessments and governmental charges or levies imposed upon
Holdings, the Borrowers or their Subsidiaries or upon the income or profits
of Holdings, the Borrowers or their Subsidiaries, or upon any properties
belonging to it, prior to the date on which penalties would otherwise
attach thereto, and all lawful claims which, if unpaid, might become a lien
or charge not otherwise permitted under Section 8.01(i) upon any properties
of Holdings, the Borrowers or any such Subsidiary; provided that none of
Holdings, the Borrowers, or any such Subsidiary shall be required to pay
any such material tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings so long as Holdings, any
such Borrower or any such Subsidiary maintains adequate reserves with
respect thereto in accordance with generally accepted accounting
principles.
7.11 Additional Mortgages; Further Assurances. (a) In the
event that Holdings or any of its Domestic Subsidiaries acquires any Real
Property after the Initial Borrowing Date the value of which, together with
improvements thereon, is $5,000,000 or more, Holdings or such Subsidiary
shall promptly notify the Administrative Agent and, at the request of the
Administrative Agent or the Required Banks from time to time, Holdings and
each Borrower will, and will cause each of their Subsidiaries to, grant to
the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such additional Real Property of Holdings, such Borrower or
any of such Domestic Subsidiaries (each such Real Property, an "Additional
Mortgaged Property"). All such Additional Mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to
the Administrative Agent and shall constitute valid and enforceable
perfected Liens superior to and prior to the rights of all third Persons
and subject to no other Liens, in either case except Permitted Liens. The
Additional Mortgages or instruments related thereto shall be duly recorded
or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the
Collateral Agent required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges payable in connection
therewith shall be paid in full. Notwithstanding anything to the contrary
contained above in this Section 7.11(a), in connection with any (x)
Leasehold that has been designated as an Additional Mortgaged Property,
none of Holdings, the Borrowers, or any such Subsidiaries shall be required
to grant an Additional Mortgage therein to the extent that such a grant is
prohibited by the applicable lease (and the lessor thereunder or its
mortgagees has not consented thereto) and (y) Real Property that has been
designated as an Additional Mortgaged Property, none of Holdings, the
Borrowers, or any such Subsidiaries shall be required to grant an
Additional Mortgage therein to the extent that such a grant is prohibited
by the terms of any document evidencing a prior Lien thereon to the extent
permitted under Section 8.01(vii), (viii), (ix), (xiv) or (xv) (and the
senior lienholder has not consented thereto).
(b) Holdings and the Borrowers will, and will cause each of
their Subsidiaries to, at the expense of Holdings, the Borrowers and such
Subsidiaries, make, execute, endorse, acknowledge, file and/or deliver to
the Collateral Agent from time to time such conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, and
other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent
may reasonably require to ensure the validity, enforceability, perfection
or priority of the Collateral Agent's security interest in the Collateral
or to enable the Collateral Agent to realize or exercise the rights and
benefits intended to be created by the Security Documents. Furthermore,
Holdings and each of the Borrowers shall cause to be delivered to the
Collateral Agent such opinions of counsel, title insurance, appraisals,
surveys and other related documents as may be reasonably requested by the
Collateral Agent to assure itself that this Section 7.11 has been complied
with.
(c) In the event the Administrative Agent or the Required
Banks reasonably determine the following are required or advisable under
applicable law or regulation, Holdings shall, and shall cause each of its
Subsidiaries to, obtain real estate appraisals with respect to each
Mortgaged Property, which real estate appraisal shall follow the valuation
procedures set forth in 12 CFR, Part 34 - Subpart C, and shall otherwise be
in form and substance reasonably satisfactory to the Administrative Agent.
(d) Holdings and each of the Borrowers agree that each
action required by this Section 7.11 shall be completed as soon as
possible, but in no event later than 90 days after such action is requested
in writing to be taken by the Administrative Agent or the Required Banks.
7.12 Foreign Subsidiaries Security. If following a change in
the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for Holdings reasonably acceptable to the Administrative Agent,
within 30 days after a request from the Administrative Agent or the
Required Banks, does not deliver evidence mutually satisfactory to Holdings
and the Administrative Agent that, with respect to any Foreign Subsidiary
of Holdings which has not already had all of its stock pledged pursuant to
a Pledge Agreement, (i) a pledge of 66-2/3% or more of the total combined
voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote and (ii) the entering into by such Foreign Subsidiary of a
guaranty in substantially the form of the Subsidiary Guaranty, with such
changes as are required to comply with local law (the "Foreign Subsidiary
Guaranty"), in any such case, would cause the undistributed earnings of
such Foreign Subsidiary as determined for Federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary's United States
parent for Federal income tax purposes in each case as a result of such
Foreign Subsidiary pledging its assets (directly or indirectly) to secure
the Obligations of the Borrowers and each Subsidiary under the Credit
Documents and the obligations of the Borrowers under any Interest Rate
Protection Agreement or Other Hedging Agreement, then in the case of a
failure to deliver the evidence described in clause (i) above, that portion
of such Foreign Subsidiary's outstanding capital stock not theretofore
pledged pursuant to a Pledge Agreement shall be pledged to the Collateral
Agent pursuant to a Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) above, such Foreign
Subsidiary shall execute and deliver the Foreign Subsidiary Guaranty (or
another guaranty in substantially similar form, if needed), guaranteeing
the Obligations of the Borrowers and each Subsidiary of the Borrowers under
the Credit Documents and the obligations of the Borrowers under any
Interest Rate Protection Agreement or Other Hedging Agreement to the extent
that the entering into of the Foreign Subsidiary Guaranty, the pledge of
the additional shares of capital stock and the amendment to such Security
Documents is permitted by the laws of the respective foreign jurisdiction
and would not, in the reasonable opinion of Holdings and the Administrative
Agent, result in any adverse tax consequences to Holdings or its
Subsidiaries, and with all documents delivered pursuant to this Section
7.12 to be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks.
7.13 Ownership of Subsidiaries. Holdings will at all times
ensure that each of its Subsidiaries remains as a Wholly-Owned Subsidiary
except (i) to the extent that any such Subsidiary is merged, consolidated
or liquidated in a transaction permitted by Section 8.02(v) or (vi) and
(ii) for non-Wholly-Owned Subsidiaries acquired after the Initial Borrowing
Date pursuant to Section 8.05(xvi).
7.14 Permitted Acquisitions. Subject to the provisions of
this Section 7.14 and the requirements contained in the definition of
Permitted Acquisition, each Borrower and each other Subsidiary of GWR (to
the extent that any such acquiror which is a Credit Party is able to, and
does, grant a Lien to the Collateral Agent for the benefit of the Secured
Creditors on and security interest in assets acquired thereby in connection
with such Permitted Acquisition, but limited to 65% of the capital stock of
any Foreign Subsidiary) may from time to time after the Initial Borrowing
Date effect Permitted Acquisitions, so long as (i) such Borrower or Credit
Party shall have given the Administrative Agent and the Banks at least 15
Business Days' prior written notice of any Permitted Acquisition, (ii) no
Default or Event of Default is in existence at the time of the consummation
of such Permitted Acquisition or would result immediately after giving
effect thereto and all representations and warranties contained herein or
in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties
were made on and as of the date of such Permitted Acquisition (both before
and after giving effect thereto), unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be
true and correct in all material respects as of such earlier date, (iii)
calculations are made by such Borrower or Credit Party of compliance with
the covenants contained in Sections 8.08 and 8.09 (in each case, giving
effect to the last sentence appearing therein) for the period of four
consecutive fiscal quarters (taken as one accounting period) most recently
ended prior to the date of such Permitted Acquisition (each, a "Calculation
Period"), on a Pro Forma Basis as if the respective Permitted Acquisition
(as well as all other Permitted Acquisitions theretofore consummated after
the first day of such Calculation Period) had occurred on the first day of
such Calculation Period and such recalculations shall show that such
financial covenants would have been complied with if the Permitted
Acquisition had occurred on the first day of such Calculation Period, (iv)
the Total Unutilized Revolving Loan Commitment shall be at least
$15,000,000 after giving effect to the respective Permitted Acquisition,
(v) with respect to any Permitted Acquisition the aggregate consideration
in connection with which is $15,000,000 or more, projections (it being
recognized by the Administrative Agent and the Banks that projections as to
future events are not to be viewed as facts or factual information and that
actual results during the period or periods covered thereby may differ from
the projected results) prepared by the respective Borrower or Credit Party
in good faith for the period from the date of the consummation of such
Permitted Acquisition to the date which is one year thereafter shall
reflect that the Borrowers shall be in compliance with the covenants set
forth in Sections 8.08 and 8.09, inclusive for such period and (vi) the
Borrowers shall have delivered to the Administrative Agent an officer's
certificate executed by an Authorized Officer of Holdings, certifying to
the best of his knowledge, compliance with the requirements of preceding
clauses (i) through (v) and containing the calculations required by
preceding clauses (iii) and (v).
7.15 Interest Rate Protection. The Borrowers shall no later
than 90 days following the Initial Borrowing Date enter into, and
thereafter maintain, Interest Rate Protection Agreements, reasonably
satisfactory to the Administrative Agent, with a term of at least two years
from the Initial Borrowing Date, establishing a fixed or maximum interest
rate acceptable to the Administrative Agent in respect of at least
$71,000,000 of the outstanding Term Loans.
7.16 Consummation of the Merger. No later than 180 days
following the Initial Borrowing Date, (i) Holdings and each Borrower shall
cause the Merger to be consummated, and (ii) all conditions precedent to
the consummation of the Merger as set forth in the Merger Documents shall
have been satisfied, and not waived in any material respect unless
consented to by the Administrative Agent. On the date of the consummation
thereof, the Merger shall have been consummated in accordance in all
material respects with the terms and conditions of the Merger Documents and
all applicable laws.
SECTION 8. Negative Covenants. Each of Holdings and each
Borrower hereby covenants and agrees for itself and each of its
Subsidiaries that on and after the Initial Borrowing Date and until the
Total Commitment and all Letters of Credit have terminated and the Loans,
Notes and Unpaid Drawings, together with all accrued but unpaid interest,
Fees and other Obligations, are paid in full:
8.01 Liens. Holdings and the Borrowers will not, and will
not permit any of their Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon or with respect to any property or assets (real or
personal, tangible or intangible) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired, or sell any such property or
assets subject to an understanding or agreement, contingent or otherwise,
to repurchase such property or assets (including sales of accounts
receivable with recourse to Holdings or any of its Subsidiaries), or assign
any right to receive income, provided that the provisions of this Section
8.01 shall not prevent the creation, incurrence, assumption or existence of
the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established to the extent required by generally accepted accounting
principles;
(ii) Liens in respect of property or assets of Holdings or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness, such as
carriers', warehousemen's, materialmen's and mechanics' liens and
other similar Liens arising in the ordinary course of business, and
(x) which do not in the aggregate materially detract from the value
of Holdings' or such Subsidiary's property or assets or materially
impair the use thereof in the operation of the business of Holdings
or such Subsidiary or (y) which are being contested in good faith
by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject
to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which
are listed, and the property subject thereto described, in Schedule
IX, and any renewals or extensions of such Liens, provided that (x)
the aggregate principal amount of the Indebtedness, if any, secured
by such Liens does not increase from that amount outstanding at the
time of any such renewal or extension and (y) any such renewal or
extension does not encumber any additional assets or properties of
Holdings or any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the
conduct of the business of Holdings or any of its Subsidiaries;
(vii) Liens upon assets subject to Capitalized Lease
Obligations to the extent permitted by Section 8.04(iv) or (xiii),
provided that (x) such Liens only serve to secure the payment of
Indebtedness arising under such Capitalized Lease Obligation and
(y) the Lien encumbering the asset giving rise to the Capitalized
Lease Obligation does not encumber any other asset of Holdings or
any of its Subsidiaries;
(viii) Liens placed upon assets at the time of acquisition
thereof by any Subsidiaries of Holdings or within 90 days
thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, provided that, in either case, (x)
the aggregate outstanding principal amount of all Indebtedness
secured by Liens permitted by this clause (viii) shall not at any
time exceed the amount permitted under Section 8.04(iv) or (xiii)
and (y) in all events, the Lien encumbering the assets so acquired
does not encumber any other asset of Holdings or any of its
Subsidiaries;
(ix) any Lien existing on any property or asset prior to the
acquisition thereof by Holdings or any of its Subsidiaries or
existing on any property or asset of any Person that becomes a
Subsidiary of Holdings after the date hereof prior to the time such
Person becomes a Subsidiary of Holdings; provided that (i) such
Lien was not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary of Holdings, (ii)
such Lien shall not apply to any other property or assets of
Holdings or any of its Subsidiaries and (iii) such Lien shall
secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary of
Holdings;
(x) easements, rights-of-way, restrictions, encroachments
and other similar charges or encumbrances, and minor title
deficiencies, in each case not materially interfering with the
conduct of the business of Holdings or any of its Subsidiaries;
(xi) Liens arising from precautionary UCC financing
statement filings or similar filings regarding operating leases;
(xii) statutory and common law landlords' liens under leases
to which Holdings or any of its Subsidiaries is a party;
(xiii) 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
bonds (other than appeal bonds), bids, government contracts,
performance and return-of-money bonds, contracts and other similar
obligations incurred in the ordinary course of business (exclusive
of contracts and obligations in respect of the payment for borrowed
money);
(xiv) Liens in favor of customers and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(xv) normal and customary rights of set-off upon deposits of
cash in favor of banks and other depository institutions, and
pledges of cash and marketable securities pursuant to the general
business conditions of German banks;
(xvi) any Subsidiaries of Holdings may sell or assign
overdue accounts receivable in connection with the collection
thereof in the ordinary course of business;
(xvii) Foreign Subsidiaries may grant Liens on their assets
to secure Indebtedness outstanding under Section 8.04(xii) or
(xiii);
(xviii) Liens on assets subject to sale-leaseback transactions
permitted under Section 8.02(xiii); and
(xix) Liens not otherwise permitted pursuant to this Section
8.01 which secure obligations permitted under this Agreement not
exceeding $5,000,000 in the aggregate at any one time outstanding.
8.02 Consolidation, Merger, Sale of Assets, etc. Holdings
and each of the Borrowers will not, and will not permit any of their
Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into
any transaction of merger or consolidation, or convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing at any future
time) all or any part of its property or assets, or enter into any
sale-leaseback transactions, except that:
(i) Subsidiaries of Holdings may make sales of inventory,
equipment and other assets, including sales to other Subsidiaries
of Holdings, in the ordinary course of business;
(ii) Subsidiaries of Holdings may make sales of assets,
provided that (x) each such sale results in consideration at least
75% of which (taking into account the amount of cash and the
principal amount of any promissory notes received as consideration)
shall be in the form of cash (provided that in lieu of cash such
Subsidiary may receive, as consideration, assets which such
Subsidiary would have been permitted to reinvest in under
the terms of Section 4.02(f) if such Subsidiary had received cash
consideration) and (y) the aggregate sale proceeds from all assets
subject to such sales shall not exceed $2,500,000 in any fiscal
year of Holdings;
(iii) Subsidiaries of Holdings may make sales of assets,
provided that (x) each such sale results in consideration at least
75% of which (taking into account the amount of cash and the
principal amount of any promissory notes received as consideration)
shall be in the form of cash (provided that in lieu of cash such
Subsidiary may receive, as consideration, assets which such
Subsidiary would have been permitted to reinvest in under the terms
of Section 4.02(f) if such Subsidiary had received cash
consideration), (y) the aggregate sale proceeds from all assets
subject to such sales shall not exceed $10,000,000 in any fiscal
year of Holdings and (z) the Net Cash Proceeds therefrom are either
applied as provided in Section 4.02(f) or reinvested in assets to
the extent permitted by Section 4.02(f);
(iv) Subsidiaries of Holdings may lease (as lessor) or
sublease real or personal property in the ordinary course of business;
(v) any Foreign Subsidiary of GWR may be merged with and
into, or be dissolved or liquidated into, or sell or otherwise
transfer any of its assets to (x) GWR or (y) any Wholly-Owned
Subsidiary of GWR;
(vi) any Domestic Subsidiary of GWR may be merged with and
into, or be dissolved or liquidated into, or transfer any of its
assets to (x) GWR or (y) any Wholly- Owned Domestic Subsidiary of
GWR;
(vii) Subsidiaries of Holdings may sell or discount accounts
receivable in the ordinary course of business, but only in
connection with the collection or compromise thereof;
(viii) Subsidiaries of Holdings may, in the ordinary course
of business, license patents, trademarks, copyrights and know-how
to third Persons or to GWR or any of its Subsidiaries, so long as
each such license does not prohibit the granting of a Lien to such
Subsidiary in the intellectual property covered by such license;
(ix) OGA America Incorporated and MECUP SRL may liquidate,
dissolve or otherwise wind-up;
(x) the Transaction shall be permitted;
(xi) the undeveloped real property in the Town of Mendon,
New York and in the Village of Honeoye Falls and owned by GWR may
be sold;
(xii) transactions permitted under Section 8.05 shall be
permitted (including, without limitation, the purchase and sale of
Cash Equivalents);
(xiii) Subsidiaries of Holdings may enter into
sale-leaseback transactions so long as the assets sold pursuant to
this clause (xiii) do not have a fair market value in excess of
$10,000,000; and
(xiv) Gleason Foreign Sales Corporation may merge with and
into, or be dissolved or liquidated into or sell or otherwise
transfer any of its assets to (x) Holdings or GWR or (y) any
Wholly-Owned Subsidiary of Holdings.
To the extent the Required Banks waive the provisions of this Section 8.02
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section
8.02, such Collateral (unless transferred to a Credit Party or a Subsidiary
thereof) shall in each case be sold or otherwise disposed of free and clear
of the Liens created by the Security Documents and the Administrative Agent
shall take such actions (including, without limitation, directing the
Collateral Agent to take such actions) as are appropriate in connection
therewith.
8.03 Dividends. Holdings and the Borrowers will not, and
will not permit any of their Subsidiaries to, authorize, declare or pay any
Dividends with respect to Holdings or any of its Subsidiaries, except that:
(i) any Subsidiary of GWR may pay Dividends to (x) GWR or
(y) any Wholly-Owned Subsidiary of GWR;
(ii) GWR may pay cash Dividends to Holdings in the amounts
and at the times of any payment by Holdings in respect of taxes,
provided that any refunds received by Holdings shall promptly be
returned by Holdings to GWR;
(iii) GWR may pay cash Dividends to Holdings in an amount
not to exceed $1,500,000 in any fiscal year so long as the proceeds
thereof are promptly used by Holdings to pay expenses in the
ordinary course of business;
(iv) (a) Holdings may redeem or purchase shares of its
capital stock or other equity interests (or options to purchase its
capital stock or other equity interests) held by management of
Holdings or any of its Subsidiaries or employees following the
termination of their employment (by death, disability, termination,
resignation or retirement) or following a determination by
management of Holdings in good faith that a hardship exists as to
any member of management or any employee, provided that (x) the
only consideration paid by Holdings in respect of such redemptions
and/or purchases shall be cash and Shareholder Subordinated Notes,
(y) the sum of (A) the aggregate amount paid by Holdings in cash in
respect of all such redemptions and/or purchases plus (B) the
aggregate amount of all principal and interest payments made on
Shareholder Subordinated Notes, shall not exceed $2,000,000 in any
fiscal year of Holdings (plus the amount available to be used
pursuant to this clause (iv)(a)(y) in prior fiscal years and not so
used, but in no event more than $8,000,000 in the aggregate after
the Effective Date), provided that all such amounts shall be
increased by (I) an amount equal to the net cash proceeds received
by Holdings after the Effective Date from the sale or issuance of
its equity interests (to the extent not used to effect a Permitted
Acquisition) and (II) an amount equal to key man life insurance
proceeds received by Holdings and its Subsidiaries after the
Effective Date and (z) at the time of any cash payment permitted to
be made pursuant to this Section 8.03(iv), including any cash
payment under a Shareholder Subordinated Note, no Default or Event
of Default shall then exist or result therefrom; and (b) so long as
no Default or Event of Default then exists or would result
therefrom, GWR may pay cash Dividends to Holdings so long as
Holdings promptly uses such proceeds for the purposes described in
clause (iv)(a) of this Section 8.03 (including for the purpose of
making interest or principal payments on any Shareholder
Subordinated Note);
(v) Holdings may pay Dividends on any outstanding Qualified
Preferred Equity solely through the issuance of additional shares
or units of Qualified Preferred Equity, or through accretion, but
not in cash;
(vi) the Transaction shall be permitted (and GWR may pay
cash Dividends to Holdings to enable Holdings to consummate the
Transaction);
(vii) Gleason Foreign Sales Corp. may pay Dividends to
Holdings;
(viii) GWR may pay Dividends to Holdings to enable Holdings
to make payments of the type referred to in Section 8.06(v);
(ix) GWR may pay Dividends to Holdings to enable Holdings to
make loans pursuant to Section 8.05(iii);
(x) GWR may pay Dividends to Holdings to enable Holdings to
make required payments on any Permitted Earn-Out Debt and Permitted
Earn-Out Preferred Equity (and Holdings may make such payments) in
accordance with the terms thereof; and
(xi) non-Wholly-Owned Subsidiaries of Holdings acquired
pursuant to Section 8.05(xvi) may pay Dividends, so long as any
such Dividends are paid pro rata to all equity holdings of such
Subsidiaries.
8.04 Indebtedness. Holdings and each of the Borrowers will
not, and will not permit any of their Subsidiaries to, contract, create,
incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness to the extent the same is listed
on Schedule VIII, and any refinancing or renewals thereof, provided
that any such refinancing and renewals shall not exceed the
principal amount of, and shall not mature before such Existing
Indebtedness outstanding at the time of the refinancing or renewal
thereof;
(iii) Permitted Earn-Out Debt issued in connection with a
Permitted Acquisition;
(iv) Indebtedness evidenced by Capitalized Lease Obligations
and purchase money Indebtedness of Holdings and its Subsidiaries,
including any Indebtedness assumed in connection with the
acquisition of assets, provided that in no event shall the
aggregate principal amount of Capitalized Lease Obligations, and
the principal amount of all such Indebtedness incurred or assumed
in each case after the Initial Borrowing Date, permitted by this
clause (iv) exceed $5,000,000 at any time outstanding;
(v) intercompany Indebtedness among Holdings and its
Subsidiaries to the extent permitted by Section 8.05;
(vi) Indebtedness of the Borrowers under Interest Rate
Protection Agreements required by Section 7.15 or entered into to
protect the Borrowers against fluctuations in interest rates in
respect of the Obligations so long as management of the Borrowers
has determined that the entering into of such Interest Rate
Protection Agreements are bona fide hedging activities;
(vii) Indebtedness of Holdings and its Subsidiaries under
Other Hedging Agreements providing protection against fluctuations
in currency values in connection with GWR or any of its
Subsidiaries' operations so long as management of GWR or such
Subsidiary, as the case may be, has determined that the entering
into of such Other Hedging Agreements are bona fide hedging
activities;
(viii) Holdings and its Subsidiaries may become liable as a
guarantor with respect to obligations of any Subsidiaries of
Holdings, which obligations are otherwise permitted under this
Agreement;
(ix) Indebtedness in respect of those accounts receivable
permitted to be sold or discounted pursuant to Section 8.02(vii);
(x) Permitted Seller Notes not to exceed $10,000,000 in
aggregate principal amount;
(xi) Shareholder Subordinated Notes;
(xii) Indebtedness of Foreign Subsidiaries in respect of
local lines of credit, letters of credit, bank guarantees and
similar extensions of credit in an aggregate outstanding principal
amount not to exceed $17,000,000 at any time; and
(xiii) additional Indebtedness of Subsidiaries of Holdings
not otherwise permitted under this Section 8.04 not to exceed
$5,000,000 in aggregate principal amount at any one time
outstanding.
8.05 Advances, Investments, Loans, Purchase of Assets.
Holdings and the Borrowers will not, and will not permit any of their
Subsidiaries to, directly or indirectly, (w) lend money or credit or make
advances to any Person, (x) purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets of any
Person (including, without limitation, any stock, obligations or securities
of, or any other interest in, any other Person, but excluding purchases or
other acquisitions of inventory, materials, equipment and other tangible
and intangible assets in the ordinary course of business), (y) make any
capital contribution to any other Person or (z) purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract,
except that the following shall be permitted:
(i) Holdings and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired
in the ordinary course of business and payable or dischargeable in
accordance with customary terms;
(ii) Holdings and its Subsidiaries may acquire and hold cash
and Cash Equivalents;
(iii) Holdings and its Subsidiaries may (x) make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $1,500,000,
(y) make loans and advances to their respective employees for the
purpose of enabling such employees to pay tax liabilities arising
as a result of the vesting or acceleration of restricted stock or
the exercise of options or warrants to purchase Holdings Common
Stock, so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances) shall not exceed $350,000,
and (z) make loans to members of management to fund their purchase
of equity interests of Holdings so long as no cash is paid by
Holdings or any of its Subsidiaries in connection therewith (or any
cash so paid is promptly (and in any event within one Business Day)
returned to Holdings or such Subsidiary);
(iv) the Borrowers may enter into Interest Rate Protection
Agreements to the extent permitted by Section 8.04(vi);
(v) Holdings and its Subsidiaries may enter into Other
Hedging Agreements to the extent permitted by Section 8.04(vii);
(vi) investments in existence on the Initial Borrowing Date
in Subsidiaries of Holdings or listed on Schedule X shall be
permitted, without giving effect to any additions thereto or
replacements thereof;
(vii) GWR may make intercompany loans to or other
investments in any Borrower or any Subsidiary Guarantor, any
Subsidiary of GWR may make intercompany loans to or other
investments in GWR or any other Borrower or any Subsidiary
Guarantor, and any Subsidiary Guarantor may make intercompany loans
to or other investments in any other Subsidiary Guarantor (any such
intercompany loans, collectively, "Intercompany Loans"), provided
that, on and after the 30th day following the Initial Borrowing
Date, if any such Intercompany Loan is evidenced by a promissory
note or other instrument, such promissory note or instrument shall
be an Intercompany Note, and such Intercompany Note, to the extent
issued to any Borrower or any Subsidiary Guarantor, shall be
pledged to the Collateral Agent pursuant to the Pledge Agreement
(provided, further, that all Intercompany Loans owing to GGH or GWH
shall be evidenced by such Intercompany Notes and pledged pursuant
to the Pledge Agreement);
(viii) any Foreign Subsidiary may make intercompany loans to
or other investments in any other Foreign Subsidiary;
(ix) Holdings, any Borrower or any Subsidiary Guarantor may
make intercompany loans to, or investments in, any Foreign
Subsidiary (any such intercompany loans, collectively, "Foreign
Subsidiary Loans"), provided that (x) such Foreign Subsidiary Loans
and investments made after the Initial Borrowing Date shall not
exceed $30,000,000 at any time outstanding and (y) on and after the
30th day following the Initial Borrowing Date all Foreign
Subsidiary Loans shall be evidenced by Intercompany Notes which are
pledged to the Collateral Agent pursuant to the Pledge Agreement;
(x) GWR and its Subsidiaries shall be permitted to make
Capital Expenditures to the extent permitted under Section 8.07;
(xi) Holdings and its Subsidiaries may enter into
transactions permitted under Section 8.02;
(xii) Holdings and its Subsidiaries may enter into
guarantees to the extent permitted by Section 8.04;
(xiii) GWR and any Subsidiary of GWR may make Permitted
Acquisitions in accordance with the definition thereof and the
other provisions of this Agreement;
(xiv) investments received in connection with the bankruptcy
or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the
ordinary course of business;
(xv) investments of any Person existing at the time such
Person becomes a Subsidiary of GWR or at the time such Person
merges or consolidates with GWR or any of its Subsidiaries, in
either case, as the result of a Permitted Acquisition in compliance
with the terms of this Agreement, provided that such investments
were not made by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Subsidiary of GWR or
such merger or consolidation; and
(xvi) GWR and its Subsidiaries may make additional advances,
investments and loans after the Initial Borrowing Date to the
extent not otherwise permitted under this Section 8.05 (including,
without limitation, joint venture investments) so long as the
Unrecovered Amount of such advances, investments and loans does not
exceed $10,000,000 in the aggregate (plus the proceeds of any
equity issuance, to the extent such proceeds are not required to be
applied to repay Term Loans pursuant to Section 4.02(d), not
applied to make a Permitted Acquisition and not applied to make
Capital Expenditures pursuant to Section 8.07(c)).
8.06 Transactions with Affiliates. Holdings and the
Borrowers will not, and will not permit any of their Subsidiaries to, enter
into any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate of Holdings or any of
its Subsidiaries, other than on terms and conditions substantially as
favorable to Holdings, the Borrowers or such Subsidiary as would reasonably
be obtained by Holdings, the Borrowers or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that:
(i) the Transaction shall be permitted;
(ii) Dividends may be paid to the extent provided in Section
8.03;
(iii) transactions permitted under Section 8.02 shall be
permitted;
(iv) loans may be made and other transactions may be entered
into by Holdings and its Subsidiaries to the extent permitted by
Section 8.05;
(v) Holdings and the Borrowers may make payments under the
Vestar Management Agreement;
(vi) Holdings and the Borrowers may make payments under
other agreements listed on Schedule XI (in each case as in effect
on the Initial Borrowing Date);
(vii) other transactions between or among Holdings and its
Subsidiaries not involving any other Affiliate and not otherwise
prohibited under this Agreement shall be permitted; and
(viii) customary fees paid to members of the Board of
Directors of Holdings and its Subsidiaries for their services as
directors not in excess of fees paid to directors who are not
Affiliates.
8.07 Maximum Capital Expenditures. (a) Holdings and the
Borrowers will not, and will not permit any of their Subsidiaries to, make
any Capital Expenditures, except that during any fiscal period set forth
below (taken as one accounting period), GWR and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount of such Capital
Expenditures does not exceed in any fiscal period set forth below the
amount set forth opposite such fiscal period below:
Fiscal Period Amount
------------- ------
Fiscal Year ending December 31, 2000 $20,000,000
Fiscal Year ending December 31, 2001 $20,000,000
Fiscal Year ending December 31, 2002 $20,000,000
Fiscal Year ending December 31, 2003 $20,000,000
Fiscal Year ending December 31, 2004 $20,000,000
Fiscal Year ending December 31, 2005 $20,000,000
Fiscal Year ending December 31, 2006 $20,000,000
Fiscal Year ending December 31, 2007 $20,000,000
Fiscal Year ending December 31, 2008 $20,000,000
To the extent that the amount of Capital Expenditures (other than those
described in clause (b) below) made by GWR and its Subsidiaries during any
fiscal period set forth in the table above is less than the amount
applicable to the respective fiscal period set forth in the table above
(without giving effect to any increase in such amount as provided below in
this clause (a)), such unused amount (the "Rollover Amount") may be carried
forward and utilized by GWR and its Subsidiaries to make additional Capital
Expenditures in the immediately succeeding fiscal period, provided that no
amount once carried forward to the next fiscal period may be carried
forward to a fiscal period thereafter, and provided further, that Capital
Expenditures made during any fiscal period shall be first deemed made in
respect of the Rollover Amount and then deemed made in respect of the
scheduled amount permitted for such fiscal period.
(b) In addition to the Capital Expenditures permitted to be
made pursuant to clause (a) of this Section 8.07, GWR and its Subsidiaries
may make Capital Expenditures (i) with the proceeds of an equity issuance,
to the extent such proceeds are not required to be applied to repay Term
Loans pursuant to Section 4.02(d), not applied to make a Permitted
Acquisition and not applied to make a permitted investment pursuant to
Section 8.05(xvi), (ii) with the proceeds of Asset Sales to the extent such
proceeds are not required to be applied to repay Term Loans pursuant to
Section 4.02(f), (iii) to the extent that any Permitted Acquisition in
accordance with Section 7.14 constitutes a Capital Expenditure, (iv) with
the proceeds of Recovery Events and (v) required pursuant to Section 7.06.
8.08 Leverage Ratio. Holdings and the Borrowers will not
permit the Leverage Ratio as of the last day of any Test Period ending on a
date set forth below to be more than the ratio set forth opposite such date
below:
Date Ratio
---- -----
June 30, 2000 3.95:1.00
September 30, 2000 3.90:1.00
December 31, 2000 3.85:1.00
March 31, 2001 3.70:1.00
June 30, 2001 3.70:1.00
September 30, 2001 3.60:1.00
December 31, 2001 3.60:1.00
March 31, 2002 3.40:1.00
June 30, 2002 3.40:1.00
September 30, 2002 3.20:1.00
December 31, 2002 3.20:1.00
March 31, 2003 3.00:1.00
June 30, 2003 3.00:1.00
September 30, 2003 2.80:1.00
December 31, 2003 2.80:1.00
March 31, 2004 2.60:1.00
June 30, 2004 2.60:1.00
Thereafter 2.50:1.00
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 8.08 shall be made on a Pro
Forma Basis.
8.09 Interest Coverage Ratio. Holdings and the Borrowers
will not permit the Interest Coverage Ratio for any Test Period ending on a
date set forth below to be less than the ratio set forth opposite such date
below:
Date Ratio
---- -----
June 30, 2000 2.45:1.00
September 30, 2000 2.45:1.00
December 31, 2000 2.45:1.00
March 31, 2001 2.50:1.00
June 30, 2001 2.50:1.00
September 30, 2001 2.60:1.00
December 31, 2001 2.60:1.00
March 31, 2002 2.70:1.00
June 30, 2002 2.70:1.00
September 30, 2002 2.90:1.00
December 31, 2002 2.90:1.00
March 31, 2003 3.00:1.00
June 30, 2003 3.00:1.00
September 30, 2003 3.20:1.00
December 31, 2003 3.20:1.00
March 31, 2004 3.30:1.00
June 30, 2004 3.30:1.00
Thereafter 3.50:1.00
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 8.09 shall be made on a Pro
Forma Basis.
8.10 Modifications of Certain Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Agreements; etc. Holdings
and the Borrowers will not, and will not permit any of their Subsidiaries
to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for
value of, or any prepayment or redemption as a result of any change
of control, asset sale or similar event of (1) after the issuance
thereof, any Permitted Seller Notes, or (2) after the issuance
thereof, any of the Shareholder Subordinated Notes except as
provided in Section 8.03(iv);
(ii) amend or modify, or permit the amendment or
modification of, in each case in any material respect any provision
of any documentation entered into in connection with the
Indebtedness referred to in clause (i) above (including, without
limitation, after the incurrence thereof, the Permitted Seller
Notes or any Shareholder Subordinated Notes, as the case may be);
or
(iii) amend, modify or change its certificate of
incorporation or limited liability company agreement or by-laws (if
any), or any agreement entered into by it, with respect to its
capital stock or other equity interests, or enter into any new
agreement with respect to its capital stock or other equity
interests, other than any amendments, modifications or changes, or
any such new agreements which are not adverse in any material
respect to the interests of the Banks.
8.11 Limitation on Certain Restrictions on Subsidiaries.
Holdings and the Borrowers will not, and will not permit any of their
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any such Subsidiary to (a) pay dividends or make any other
distributions on its capital stock or any other interest or participation
in its profits owned by Holdings or any of its Subsidiaries, or pay any
Indebtedness owed to Holdings or any of its Subsidiaries, (b) make loans or
advances to Holdings or any of its Subsidiaries, or (c) transfer any of its
properties or assets to Holdings or any of its Subsidiaries, except for
such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii)
customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of Holdings or any of its Subsidiaries, (iv)
customary provisions restricting assignment of any agreement entered into
by the Borrowers or any Subsidiary of the Borrowers in the ordinary course
of business, (v) customary provisions restricting the transfer of assets
subject to Liens permitted under Section 8.01(iii), (vii) and (viii), (vi)
any restrictions contained in contracts for the sale of assets permitted in
accordance with Section 8.02 solely in respect of the assets to be sold
pursuant to such contract, (vii) any restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement
if such restrictions or conditions apply only to the property or assets
securing such Indebtedness and (viii) any restrictions, after the issuance
thereof, in the Permitted Seller Notes.
8.12 Limitation on Issuance of Equity. (a) Holdings will not
permit any of its Subsidiaries to issue any capital stock or other equity
interests (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock or
other equity interests, except (i) for transfers and replacements of then
outstanding shares of capital stock or other equity interests, (ii) for
stock splits, stock dividends and similar issuances which do not decrease
the percentage ownership of Holdings or any of its Subsidiaries in any
class of the capital stock or other equity interests of such Subsidiary,
(iii) for issuances to GWR or any of its Subsidiaries in connection with
the creation of new Wholly-Owned Subsidiaries permitted under Section 8.14,
(iv) for issuances by Subsidiaries which are joint ventures created or
acquired in accordance with Section 8.05(xvi) or (v) to qualify directors
to the extent required by applicable law.
(b) Holdings will not, and will not permit any of its
Subsidiaries to, issue (i) any class of preferred equity (provided that (A)
Holdings may issue (x) Qualified Preferred Equity and (y) Permitted
Earn-Out Preferred Equity) and (B) Subsidiaries of Holdings may issue
preferred equity to GWR or any Wholly-Owned Subsidiary of GWR (or
otherwise, to the extent such Subsidiary is a joint venture created or
acquired in accordance with Section 8.05(xvi)) or (ii) any class of
redeemable (except at the sole option of Holdings or such Subsidiary)
common equity.
8.13 Business. (a) Holdings will not, and will not permit
any of its Subsidiaries to, engage (directly or indirectly) in any business
other than any of the lines of business conducted by Holdings and its
Subsidiaries on the Effective Date and any business similar, ancillary or
related thereto or which constitutes a reasonable extension or expansion
thereof, including in connection with Holdings' existing and future
technology, trademarks and patents.
(b) Notwithstanding anything to the contrary contained in
this Agreement, Holdings will not engage in any business activities and
will not have any significant assets or liabilities other than its
ownership of the equity interests of GWR and other Subsidiaries owned
directly by it as of the Effective Date, the making of other investments
permitted by Section 8.05, liabilities imposed by law, activities in
connection with the Transaction, contracts, guaranties and other
liabilities entered into or assumed in the ordinary course of business for
the benefit of its Subsidiaries, its obligations with respect to this
Agreement and the other Documents to which it is a party and the
Shareholder Subordinated Notes and activities entered into in connection
therewith.
(c) Neither GGH nor GWH shall have any significant assets
other than the capital stock of their respective Subsidiaries, intercompany
notes and cash and Cash Equivalents.
(d) Neither OGA America Incorporated nor MECUP SRL shall
engage in any business operations or activities other than those engaged in
by it as of the Effective Date and the activities related to its
liquidation, dissolution or winding-up.
8.14 Limitation on the Creation of Subsidiaries.
Notwithstanding anything to the contrary contained in this Agreement,
Holdings and the Borrowers will not, and will not permit any of their
Subsidiaries to, establish, create or acquire any Subsidiary; provided that
GWR and its Subsidiaries shall be permitted to establish or create
Wholly-Owned Subsidiaries (or, to the extent acquired pursuant an
investment made under Section 8.05(xvi), non-Wholly-Owned Subsidiaries), so
long as, subject to the terms and conditions of Section 7.12 hereof, (i)
the capital stock of such new Subsidiary to the extent owned by GWR or any
other Credit Party (up to 65% of the capital stock of any such new Foreign
Subsidiary) is promptly pledged pursuant to, and to the extent required by,
the respective Pledge Agreement and the certificates representing such
stock, together with stock powers duly executed in blank, are delivered to
the Collateral Agent and (ii) such new Subsidiary (to the extent it is a
Domestic Subsidiary) promptly executes a counterpart of the Subsidiary
Guaranty, a Pledge Agreement and a Security Agreement, in each case on the
same basis (and to the same extent) as such Subsidiary would have executed
such Credit Documents if it were a Credit Party on the Initial Borrowing
Date. In addition, at the reasonable request of the Administrative Agent,
each new Subsidiary shall execute and deliver, or cause to be executed and
delivered, all other relevant documentation of the type described in
Section 5 as such new Subsidiary would have had to deliver if such new
Subsidiary were a Credit Party on the Initial Borrowing Date.
SECTION 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. (a) Any Borrower shall (i) default in the
payment when due of any principal of any Loan or any Note or (ii) default,
and such default shall continue unremedied for three or more days, in the
payment when due of any Unpaid Drawings (after notice is given to such
Borrower pursuant to the last sentence of Section 2.04(a)) or interest on
any Loan or Note, or any Fees or any other amounts owing hereunder or under
any other Credit Document or (b) any Guarantor shall default in the payment
of any amount, in respect of any payment of the type described in clause
(a)(ii) above pursuant to its Guaranty, and such default shall continue
unremedied for three or more days; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document
or in any certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed
made; or
9.03 Covenants. Any Credit Party shall (i) default in the
due performance or observance by it of any term, covenant or agreement
contained in Section 7.01(g)(i), Section 7.11, Section 7.14 or Section 8 or
(ii) default in the due performance or observance by it of any other term,
covenant or agreement contained in this Agreement (other than as provided
in Section 9.01) and such default shall continue unremedied for a period of
30 days after written notice to the defaulting party by the Administrative
Agent or the Required Banks; or
9.04 Default Under Other Agreements. (i) Holdings or any of
its Subsidiaries shall (x) default in any payment of any Indebtedness
(other than the Obligations) beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was created or
(y) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or Administrative Agent on behalf of such holder
or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated
maturity, or (ii) any such Indebtedness of Holdings or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled prepayment or required
prepayment (other than pursuant to a "due-on-sale" clause in a mortgage or
similar security agreement) (unless such required prepayment results from a
default thereunder or an event of the type that constitutes an Event of
Default), prior to the stated maturity thereof, provided that it shall not
be a Default or an Event of Default under this Section 9.04 unless the
aggregate outstanding principal amount of all Indebtedness as described in
preceding clauses (i) and (ii) is at least $5,000,000; or
9.05 Bankruptcy, etc. Holdings or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the
United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Holdings or any of its Subsidiaries and the petition is
not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of Holdings or any of its Subsidiaries, or Holdings or any of its
Subsidiaries commences (or is required by law to commence) any other
proceeding, or is deemed insolvent, under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Holdings or any of its Subsidiaries, or there is
commenced against Holdings or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days; or Holdings or any of
its Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or
Holdings or any of its Subsidiaries suffers any appointment of any
custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or Holdings or
any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section
412 of the Code or Section 302 of ERISA or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412
of the Code or Section 303 or 304 of ERISA, a Reportable Event shall have
occurred, a contributing sponsor (as defined in Section 4001(a)(13) of
ERISA) of a Plan subject to Title IV of ERISA shall be subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof) and an event described in subsection
.62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall
be reasonably expected to occur with respect to such Plan within the
following 30 days, any Plan which is subject to Title IV of ERISA shall
have had or is reasonably likely to have a trustee appointed to administer
such Plan, any Plan or Multiemployer Plan which is subject to Title IV of
ERISA is, shall have been or is reasonably likely to be terminated or to be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect
to a Plan, Multiemployer Plan or a Foreign Pension Plan has not been timely
made, Holdings, the Borrowers or any of their Subsidiaries or any ERISA
Affiliate has incurred or is reasonably likely to incur any liability to or
on account of a Plan or Multiemployer Plan under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or on account of a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
under Section 4980B of the Code, or Holdings, the Borrowers or any of their
Subsidiaries has incurred or is likely to incur liabilities pursuant to one
or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) that provide benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or Plans or Foreign
Pension Plans, a "default," within the meaning of Section 4219(c)(5) of
ERISA, shall occur with respect to any Multiemployer Plan; any applicable
law, rule or regulation is adopted, changed or interpreted, or the
interpretation or administration thereof is changed, in each case after the
date hereof, by any governmental authority or agency or by any court (a
"Change in Law"), or, as a result of a Change in Law, an event occurs
following a Change in Law, with respect to or otherwise affecting any Plan
or Multiemployer Plan; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, has
had, or could reasonably be expected to have, a material adverse effect
upon the business, operations, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries taken as a whole; or
9.07 Security Documents. Except (x) in each case to the
extent resulting from the failure of the Collateral Agent to retain
possession of the applicable Pledged Securities and (y) in respect of an
immaterial portion of the Collateral, at any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full
force and effect, or shall cease to give the Collateral Agent for the
benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral), in favor of the
Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 8.01), and subject to no other Liens (other
than Permitted Liens), or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any of the Security Documents and, (i)
with respect to Sections 3.2, 4.3 and 5.3 of the Security Agreement and any
affirmative covenant in any Mortgage, the failure to comply with which
would not affect the creation, perfection or priority of the mortgage lien
thereunder, such default shall continue unremedied for a period of 30 days
after written notice to the defaulting party by the Administrative Agent or
the Required Banks and (ii) with respect to Section 12(a) of the Pledge
Agreement and Sections 3.7 and 6.3 of the Security Agreement such default
shall continue unremedied for a period of 15 days after written notice to
the defaulting party by the Administrative Agent or the Required Banks; or
9.08 Guaranties. (a) Any Guaranty or any provision thereof
shall cease to be in full force or effect as to the relevant Guarantor, or
any Guarantor or Person acting by or on behalf of such Guarantor shall deny
or disaffirm such Guarantor's obligations under the relevant Guaranty, or
(b) except as otherwise provided in Section 9.01(b), any Guarantor shall
default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to such
Guaranty; provided that, with respect to defaults under Section 12 of the
Guaranty which relate to covenants in Section 7 of this Agreement for which
a grace period is applicable under Section 9.03(ii), such Guarantors shall
have the benefit of the grace period set forth in Section 9.03(ii); or
9.09 Judgments. One or more judgments or decrees shall be
entered against Holdings or any of its Subsidiaries involving in the
aggregate for Holdings and its Subsidiaries a liability of $5,000,000 or
more (not paid or fully covered by a reputable and solvent insurance
company) and such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.10 Change of Control. A Change of Control shall have
occurred; then, and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, the Administrative Agent, upon
the written request of the Required Banks, shall by written notice to the
Borrowers, take any or all of the following actions, without prejudice to
the rights of the Administrative Agent, any Bank or the holder of any Note
to enforce its claims against any Credit Party (provided that, if an Event
of Default specified in Section 9.05 shall occur with respect to any
Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent to the Borrowers as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such
notice): (i) declare the Total Commitment terminated, whereupon all
Commitments of each Bank shall forthwith terminate immediately and any
Commitment Fee shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder
and thereunder to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; (iii) terminate any
Letter of Credit which may be terminated in accordance with its terms; (iv)
direct the Borrowers to pay (and each Borrower agrees that upon receipt of
such notice, or upon the occurrence of an Event of Default specified in
Section 9.05 with respect to any Borrower, it will pay) to the Collateral
Agent at the Payment Office such additional amount of cash, to be held as
security by the Collateral Agent, as is equal to the aggregate Stated
Amount of all Letters of Credit issued for the account of the Borrowers and
then outstanding; (v) enforce, as Collateral Agent, all of the Liens and
security interests created pursuant to the Security Documents; and (vi)
apply any cash collateral held pursuant to this Agreement to pay
Obligations.
SECTION 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"A Term Loan" shall mean each A-1 Term Loan, A-2 Term Loan
and A-3 Term Loan.
"A Term Loan Maturity Date" shall mean the sixth anniversary
of the Effective Date.
"A-1 Term Loan" shall have the meaning provided in Section
1.01(a).
"A-1 Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "A-1 Term Loan Commitment," as the same may be
reduced or terminated pursuant to Section 3.03 and/or 9.
"A-1 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"A-1 Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(b)(i).
"A-1 Term Note" shall have the meaning provided in Section
1.05(a)(i).
"A-1 Tranche Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of A-1 Term Loans then outstanding plus the Total A-1 Term
Loan Commitment at such time and the denominator is the aggregate principal
amount of Term Loans then outstanding plus the Total A-1 Term Loan
Commitment and the Total B-1 Term Loan Commitment at such time.
"A-2 Term Loan" shall have the meaning provided in Section
1.01(b).
"A-2 Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "A-2 Term Loan Commitment," as the same may be
reduced or terminated pursuant to Section 3.03 and/or 9.
"A-2 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"A-2 Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(b)(ii).
"A-2 Term Note" shall have the meaning provided in Section
1.05(a)(ii).
"A-2 Tranche Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of A-2 Term Loans then outstanding and the denominator is
the aggregate principal amount of Term Loans then outstanding plus the
Total A-1 Term Loan Commitment and the Total B-1 Term Loan Commitment at
such time.
"A-3 Term Loan" shall have the meaning provided in Section
1.01(c).
"A-3 Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "A-3 Term Loan Commitment," as the same may be
reduced or terminated pursuant to Section 3.03 and/or 9.
"A-3 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(iii).
"A-3 Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(b)(iii).
"A-3 Term Note" shall have the meaning provided in Section
1.05(a)(iii).
"A-3 Tranche Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of A-3 Term Loans then outstanding and the denominator is
the aggregate principal amount of Term Loans then outstanding plus the
Total A-1 Term Loan Commitment and the Total B-1 Term Loan Commitment at
such time.
"Acquired Businesses" shall mean any person or business,
division or product line acquired pursuant to a Permitted Acquisition.
"Additional Mortgage" shall have the meaning provided in
Section 7.11(a).
"Additional Mortgaged Property" shall have the meaning
provided in Section 7.11(a).
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum
of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest
expense and net non-cash losses which were included in arriving at
Consolidated Net Income for such period) for such period less (i) the sum
of the amount of all net non-cash gains (exclusive of items reflected in
Adjusted Consolidated Working Capital) included in arriving at Consolidated
Net Income for such period and (ii) gains or losses for such period from
sales of assets other than sales in the ordinary course of business.
"Adjusted Consolidated Working Capital" at any time shall
mean Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Administrative Agent" shall mean BTCo (and/or any Lending
Affiliate of BTCo performing obligations or functions on its behalf and
reasonably acceptable to the Borrowers), in its capacity as Administrative
Agent for the Banks hereunder, and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09. As of the
Effective Date, and until BTCo otherwise notifies the Borrowers and the
Banks, the Administrative Agent shall be (i) with respect to all matters
relating to Foreign Currency Loans (including, without limitation, all
determinations of Deutsche Mark Equivalent, EURIBOR, Euro Equivalent,
Sterling LIBOR and Sterling Equivalent), all Dollar Loans incurred by GGH
and GWH, and all Letters of Credit issued for the account of GGH and GWH,
Deutsche Bank Luxembourg S.A., and (ii) for all other purposes, BTCo.
"Affected Euro Rate Loans" shall have the meaning provided
in Section 4.02(j).
"Affiliate" shall mean, with respect to any Person, any
other Person (i) directly or indirectly controlling (including, but not
limited to, all directors, officers and partners of such Person) controlled
by, or under direct or indirect common control with, such Person or (ii)
that directly or indirectly owns more than 10% of any class of the voting
securities or capital stock of or equity interests in such Person. A Person
shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" shall mean each of the Administrative Agent, the
Syndication Agent and the Documentation Agent (if any).
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed, refinanced or replaced
from time to time.
"Alternate Currency" shall mean each of Deutsche Marks,
Euros and Pounds Sterling.
"Alternate Currency Loan" shall mean any Tranche 1 Revolving
Loan or Tranche 2 Revolving Loan denominated in an Alternate Currency.
"Applicable Commitment Fee Percentage" shall mean, for
purposes of calculating the applicable Commitment Fee on the daily
Unutilized Commitment of any Bank, the appropriate applicable percentage
corresponding to the Leverage Ratio in effect as of the most recent
Determination Date:
==============================================================================
Pricing Level Leverage Ratio Commitment Fee
I >3.75:1.00 0.500%
II >3.25:1.0 <= 3.75:1.0 0.500%
III >2.75:1.0 <= 3.25:1.0 0.500%
IV >2.25:1.0 <= 2.75:1.0 0.500%
V <= 2.25:1.0 0.375%
==============================================================================
The Applicable Commitment Fee Percentage shall be determined
and adjusted quarterly on the date (each a "Determination Date") two
Business Days after the date by which Holdings provides the officer's
certificate in accordance with the provisions of Section 7.01(e) for the
most recently ended fiscal quarter of Holdings; provided, however, that (i)
the Applicable Commitment Fee Percentage shall be 0.500% until the
Determination Date for the fiscal quarter of Holdings ending on June 30,
2000, on and after which time such Applicable Commitment Fee Percentage
shall be determined by the Leverage Ratio as of the last day of the most
recently ended fiscal quarter of Holdings preceding the applicable
Determination Date, and (ii) if Holdings fails to provide the officer's
certificate to the Administrative Agent as required by Section 7.01(e) for
the last day of the most recently ended fiscal quarter of Holdings
preceding the Determination Date, the Applicable Commitment Fee Percentage
from such Determination Date shall be based on Pricing Level I until such
time as an appropriate officer's certificate is provided, whereupon such
Applicable Commitment Fee Percentage shall be determined by the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of
Holdings preceding such Determination Date. Each Applicable Commitment Fee
Percentage shall be effective from one Determination Date until the next
Determination Date.
"Applicable Margin" shall mean, for purposes of calculating
the applicable interest rate for any day for any Revolving Loan, any A Term
Loan or any B Term Loan, the appropriate applicable percentage
corresponding to the Leverage Ratio in effect as of the most recent
Determination Date:
<TABLE>
<CAPTION>
===============================================================================================
APPLICABLE MARGIN
FOR REVOLVING LOANS FOR B TERM LOANS
AND A TERM LOANS
EURO BASE EURO BASE
PRICING RATE RATE RATE RATE
LEVEL LEVERAGE RATIO LOANS LOANS LOANS LOANS
<S> <C> <C> <C> <C> <C>
I >3.75:1.00 3.25% 2.25% 3.50% 2.50%
II >3.25:1.0<=3.75:1.0 3.00% 2.00% 3.50% 2.50%
III >2.75:1.0<=3.25:1.0 2.75% 1.75% 3.50% 2.50%
IV >2.25:1.0<=2.75:1.0 2.50% 1.50% 3.50% 2.50%
V <=2.25:1.0 2.25% 1.25% 3.50% 2.50%
===============================================================================================
</TABLE>
The Applicable Margin shall be determined and adjusted
quarterly on each Determination Date; provided, however, that (i) the
Applicable Margins shall remain unchanged at Pricing Level II (as shown
above) until the Determination Date for the fiscal quarter of Holdings
ending on June 30, 2000, on and after which time the Applicable Margins
shall be determined by the Leverage Ratio as of the last day of the most
recently ended fiscal quarter of Holdings preceding the applicable
Determination Date, and (ii) if Holdings fails to provide the officer's
certificate to the Administrative Agent as required by Section 7.01(e) for
the last day of the most recently ended fiscal quarter of Holdings
preceding the Determination Date, the Applicable Margins from such
Determination Date shall be based on Pricing Level I until such time as an
appropriate officer's certificate is provided, whereupon the Applicable
Margins shall be determined by the Leverage Ratio as of the last day of the
most recently ended fiscal quarter of Holdings preceding such Determination
Date. Each Applicable Margin shall be effective from one Determination Date
until the next Determination Date.
"Approved Bank" shall have the meaning provided in the
definition of "Cash Equivalents."
"Approved Currency" shall mean each of Dollars and each
Alternate Currency.
"Asset Sale" shall mean any sale, transfer or other
disposition by the Borrowers or any of their Subsidiaries to any Person
other than the Borrowers or any of their Wholly-Owned Subsidiaries of any
asset (including, without limitation, any capital stock or other equity
interests or securities of another Person), of the Borrowers or any of
their Subsidiaries other than any sale, transfer or disposition permitted
by Sections 8.02(i), (ii), (iv), (v), (vi), (vii), (viii), (x), (xi), (xii)
and (xiii).
"Assignment and Assumption Agreement" shall mean an
Assignment and Assumption Agreement substantially in the form of Exhibit L
(appropriately completed).
"Authorized Officer" of any Credit Party shall mean any of
the Chief Executive Officer, President, the Chief Financial Officer, the
Treasurer, the Controller, any Managing Director, any Assistant Treasurer,
any Vice-President, the Secretary or the General Counsel of such Credit
Party or any other officer of such Credit Party which is designated in
writing to the Administrative Agent and the relevant Issuing Bank by any of
the foregoing officers of such Credit Party as being authorized to give
such notices under this Agreement.
"B Term Loan" shall mean each B-1 Term Loan and each B-2
Term Loan.
"B Term Loan Maturity Date" shall mean the eighth
anniversary of the Effective Date.
"B-1 Term Loan" shall have the meaning provided in Section
1.01(d).
"B-1 Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "B-1 Term Loan Commitment," as the same may be
reduced or terminated pursuant to Section 3.03 and/or 9.
"B-1 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(c)(i).
"B-1 Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(c)(i).
"B-1 Term Note" shall have the meaning provided in Section
1.05(a)(iv).
"B-1 Tranche Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of B-1 Term Loans then outstanding plus the Total B-1 Term
Loan Commitment at such time and the denominator of which is the aggregate
principal amount of Term Loans then outstanding plus the Total A-1 Term
Loan Commitment and the Total B-l Term Loan Commitment at such time.
"B-2 Term Loan" shall have the meaning provided in Section
1.01(e).
"B-2 Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "B-2 Term Loan Commitment," as the same may be
reduced or terminated pursuant to Section 3.03 and/or 9.
"B-2 Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(c)(ii).
"B-2 Term Loan Scheduled Repayment Date" shall have the
meaning provided in Section 4.02(c)(ii).
"B-2 Term Note" shall have the meaning provided in Section
1.05(a)(v).
"B-2 Tranche Percentage" shall mean, at any time, a fraction
(expressed as a percentage) the numerator of which is the aggregate
principal amount of B-2 Term Loans then outstanding and the denominator of
which is the aggregate principal amount of Term Loans then outstanding plus
the Total A-1 Term Loan Commitment and the Total B-l Term Loan Commitment
at such time.
"Bank" shall mean each financial institution listed on
Schedule II, as well as any Person which becomes a "Bank" hereunder
pursuant to 14.04(b).
"Bank Default" shall mean (i) the refusal (which has not
been retracted) of a Bank to make available its portion of any Borrowing or
to fund its portion of any unreimbursed payment under Section 2.03(d) or
(ii) a Bank having notified in writing the Borrowers and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 1.01 or Section 2, in the case of either clause (i) or (ii)
as a result of any takeover of such Bank by any regulatory authority or
agency.
"Bank Guarantee" shall have the meaning provided in Section
2.01(a).
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" at any time shall mean the higher of (i) the
rate which is 1/2 of 1% in excess of the overnight Federal Funds Rate and
(ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Dollar Loan designated or
deemed designated as such by the Borrowers at the time of the incurrence
thereof or conversion thereto.
"Borrower" shall mean each of GWR, GGH, GWH and GIMC, as the
context requires.
"Borrowing" shall mean a borrowing of Loans of a single
Tranche and a single currency by a Borrower from all the Banks having
Commitments in respect of or outstanding Loans under the respective Tranche
on a given date (or resulting from a conversion or conversions on such
date) and, in the case of Euro Rate Loans, having the same Interest Period
and, in the case of Dollar Loans, of the same Type, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor thereto by merger.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) or (iii) below, any day except Saturday, Sunday and
any day which shall be in New York City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close, (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Euro Rate
Loans, any day which is a Business Day described in clause (i) above and
which is also (x) a day for trading by and between banks in the European
interbank eurocurrency market and, with respect to any notices or
determinations in respect of Euros, which is customarily a "Business Day"
for such notices and determinations and (y) not a day which in Luxembourg
is a legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close and (iii) with respect
to all notices and determinations in connection Letters of Credit, any day
which in the city in which the respective Issuing Bank is located is not a
legal holiday or a day on which banking institutions are authorized or
required by law or other government action to close.
"Calculation Period" shall have the meaning provided in
Section 7.14.
"Capital Expenditures" shall mean, with respect to any
Person, all expenditures by such Person which would be required to be
capitalized in accordance with generally accepted accounting principles,
including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs
which should be capitalized in accordance with generally accepted
accounting principles) and, without duplication, the amount of Capitalized
Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" shall mean, with respect to
any Person, all rental obligations which, under generally accepted
accounting principles, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with such principles.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than one year from the date of acquisition,
(ii) U.S. dollar denominated time deposits, certificates of deposit and
bankers acceptances of (x) any Bank and (y) any bank which has, or whose
parent company has, a short-term commercial paper rating from S&P of at
least A-1 or the equivalent thereof or from Moody's of at least P-1 or the
equivalent thereof (any such bank or Bank, an "Approved Bank"), in each
case with maturities of not more than one year from the date of
acquisition, (iii) commercial paper issued by any Approved Bank or by the
parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any company with a short-term commercial paper rating of at
least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's, or guaranteed by any company with a long
term unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case maturing
within six months after the date of acquisition, (iv) marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition thereof and,
at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's and (v) investments in money market
funds substantially all the assets of which are comprised of securities of
the types described in clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale,
the aggregate cash payments (including any cash received by way of deferred
payment (but not as interest) pursuant to a note receivable issued in
connection with such Asset Sale, but (i) only as and when so received and
(ii) excluding notes receivable held as of the Effective Date) received by
the Borrowers or any of its Subsidiaries from such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as the same may be
amended from time to time, 42 U.S.C.ss. 9601 et seq., -- ---- and any
successor thereto.
"Change in Law" shall have the meaning provided in Section
1.10.
"Change of Control" shall mean (i) Holdings shall cease to
own (directly or indirectly) 100% of the outstanding equity interests of
any Borrower, (ii) prior to a Holdings IPO, (x) the Permitted Holders shall
cease to own a majority of the voting capital stock or other voting equity
interests of Holdings on a fully diluted basis or (y) at any time after the
Merger Date VCP IV and its Affiliates (including for the avoidance of doubt
Vestar/Gleason Investors, L.L.C.) shall own on a fully diluted basis less
than 50% of the number of shares of voting capital stock of Holdings owned
by it on the Merger Date after giving effect to the Merger (calculated on a
fully-diluted basis and without giving effect to any stock-split, spin-off,
split-up, reclassification, combination of shares, or similar
rearrangement), (iii) following a Holdings IPO, any "Person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
excluding Permitted Holders, is or shall become the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of 30% or more on a fully diluted basis (assuming for such
purpose that each Permitted Holder has exercised all warrants and options
it has for any such voting capital stock or other equity interests) of the
voting and economic equity interests of Holdings or (iv) the Board of
Directors of Holdings shall cease to consist of a majority of Continuing
Directors.
"Claims" shall have the meaning provided in the definition
of "Environmental Claims."
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to the Code are to the Code, as in
effect on the date of this Agreement, and to any subsequent provisions of
the Code amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted
(or purported to be granted) pursuant to any Security Document, including,
without limitation, all Pledge Agreement Collateral, all Security Agreement
Collateral, all Mortgaged Properties, all Additional Mortgage Properties
and all cash and Cash Equivalents delivered as collateral pursuant to
Sections 4.02 or 9 hereof.
"Collateral Agent" shall mean the Administrative Agent
acting as Collateral Agent for the Secured Creditors pursuant to the
Security Documents.
"Commitment" shall mean any of the commitments of any Bank,
i.e., whether the A-1 Term Loan Commitment, A-2 Term Loan Commitment, A-3
Term Loan Commitment, B-1 Term Loan Commitment, B-2 Term Loan Commitment,
B-3 term Loan Commitment, Tranche 1 Revolving Loan Commitment or Tranche 2
Revolving Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section
3.01(a).
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate amount of Capital Expenditures made by Holdings and
its Subsidiaries during such period.
"Consolidated Cash Interest Expense" shall mean, for any
Test Period, Consolidated Interest Expense (net of cash interest income)
for such Test Period but only to the extent such Consolidated Interest
Expense is payable in cash during such Test Period; provided, that (a) for
the Test Period ending June 30, 2000, Consolidated Cash Interest Expense
shall be the actual Consolidated Cash Interest Expense for the two fiscal
quarter period ending June 30, 2000 (taken as one accounting period),
multiplied by 2, and (b) for the Test Period ending September 30, 2000,
Consolidated Cash Interest Expense shall be the actual Consolidated Cash
Interest Expense for the three fiscal quarter period ending September 30,
2000, multiplied by 4/3.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets (excluding any current deferred tax assets) of
Holdings and its Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of Holdings and its Subsidiaries at
such time, but excluding (i) any such liabilities which constitute
Indebtedness and (ii) any current deferred tax liabilities.
"Consolidated Debt" shall mean, at any time, an amount equal
to (i) the average outstanding principal amount of Revolving Loans,
calculated on the basis of the outstanding principal amount of such
Revolving Loans on the last Business Day of each month during the period
(the "Revolver Calculation Period") of 12 months then most recently ended
(or, if shorter, the number of months beginning with February, 2000 and
ending with the then most recently ended month), provided that if during
such Revolver Calculation Period any Borrower consummated a Permitted
Acquisition financed in whole or in part with Revolving Loans, then for
purposes of this clause (i) there shall be added to each month occurring in
such Revolver Calculation Period prior to the consummation of such
Permitted Acquisition an amount equal to the principal amount of Revolving
Loans incurred to finance such Permitted Acquisition, plus (ii) the
aggregate principal amount of all other Indebtedness of Holdings and its
Subsidiaries (including, without limitation, Loans hereunder other than
Revolving Loans, but excluding (x) Letters of Credit unless any Drawing has
occurred thereunder which is not reimbursed in full within 10 days thereof
and (y) Indebtedness of the type described in clauses (vi) and (vii) of the
definition thereof) at such time, minus (iii) cash and Cash Equivalents
held by Holdings and its Subsidiaries.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of Holdings and its Subsidiaries for such period,
before Consolidated Interest Expense (but, for this purpose only, including
therein any costs or expenses related to Interest Rate Protection
Agreements or other Hedging Agreements) for such period, the aggregate
amount of letter of credit fees for such period and provision for taxes and
without giving effect to any extraordinary gains or losses for such period
or gains or losses from sales of assets other than in the ordinary course
of business.
"Consolidated EBITDA" shall mean, for any period,
Consolidated EBIT, adjusted by adding thereto the following amounts
(without duplication), in each case to the extent deducted in arriving at
Consolidated EBIT for such period: (i) all amortization of intangibles and
depreciation, (ii) all non-cash extraordinary and non-cash non-recurring
losses or charges, (iii) all non-cash expenses incurred in the ordinary
course of business, (iv) non-cash expenses resulting from the grant of
stock and stock options and other compensation to management personnel of
the Borrowers or their Subsidiaries pursuant to a written plan or agreement
or the treatment of such options under variable plan accounting, (v)
step-up in inventory valuation as a result of purchase accounting for
Permitted Acquisitions, (vi) non-cash amortization of financing costs by
the Borrowers and their Subsidiaries for such period, (vii) any fees,
expenses or charges related to any equity offering, permitted investment,
acquisition or recapitalization or Indebtedness permitted by this Agreement
(whether or not successful) and fees, expenses or charges related to the
Transaction (including fees paid to Vestar and/or its Affiliates), (viii)
the amount of any minority interest expense deducted in calculating
Consolidated Net Income, (ix) $2,100,000 of restructuring charges taken in
1999, (x) expenses of implementing the ERP system and (xi) any deduction
resulting from the impact of using the LIFO method of inventory accounting;
it being expressly understood and agreed, however, that, notwithstanding
anything to the contrary set forth in this definition or in the definitions
of Consolidated Net Income or Consolidated EBIT, if any restructuring
charges are taken or incurred by Holdings and its Subsidiaries after the
Initial Borrowing Date (other than any such charges related to the
Transaction), same shall reduce Consolidated EBITDA, provided that such
reductions to Consolidated EBITDA shall be made at the times, and to the
extent, that cash amounts are paid in respect thereof (whether such cash
amounts reduce reserves previously established, reduce Consolidated Net
Income or otherwise).
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of Holdings and its Subsidiaries
for such period (calculated without regard to any limitations on the
payment thereof) plus, without duplication, that portion of Capitalized
Lease Obligations of Holdings and its Subsidiaries representing the
interest factor for such period, but without including therein any costs or
expenses related to Interest Rate Protection Agreements or Other Hedging
Agreements.
"Consolidated Net Income" shall mean, for any period, net
after tax income of Holdings and its Subsidiaries for such period;
provided, however, that there shall be excluded from Consolidated Net
Income (i) other than when calculated on a Pro Forma Basis, the income (or
loss) of any Person accrued prior to the date it becomes a consolidated
Subsidiary of Holdings or is merged into or consolidated with Holdings or
any of its consolidated Subsidiaries or such Person's assets are acquired
by Holdings or any of its consolidated Subsidiaries, except to the extent
of the amount of cash dividends or distributions actually paid to Holdings
or any of its consolidated Subsidiaries by such Person during such period
and (ii) the income of any consolidated Subsidiary of Holdings to the
extent the declaration or payment of dividends or similar distributions by
that Subsidiary of its income is not at the time permitted by operation of
the terms of its charter or any agreement or instrument (other than this
Agreement or any other Credit Document), judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of any such primary obligation or (y) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the members of the Board
of Directors of Holdings on the Initial Borrowing Date and each other
member, if such member's nomination for election to the Board of Directors
of Holdings is recommended by a majority of the then Continuing Directors
or if such member has been designated by a Permitted Holder.
"Covenant to Pay" shall mean the Covenant to Pay executed by
GWR in connection with the Pledge Agreements providing for a pledge of the
equity interests of GGH, Gleason-Pfauter Maschinenfabrik GmbH and
Gleason-Hurth Maschinen und Werkzeuge GmbH.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement,
each Note, each Security Document and each Guaranty.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean Holdings, each Borrower and each
Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which
a Bank Default is in effect.
"Determination Date" shall have the meaning provided in the
definition of Applicable Commitment Fee Percentage.
"Deutsche Mark Equivalent" shall mean, at any time for the
determination thereof, the amount of Deutsche Marks which could be
purchased with the amount of Dollars involved in such computation at the
spot exchange rate therefor as quoted by the Administrative Agent as of
11:00 A.M. (Brussels time) on the date two Business Days prior to the date
of any determination thereof for purchase on such date.
"Deutsche Marks" shall mean the National Currency Unit of
Germany.
"Dividends" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to
its stockholders, members or other equity owners or authorized or made any
other distribution, payment or delivery of property or cash (other than
equity interests in such person or rights therefor) to its stockholders,
members or other equity owners as such, or redeemed, retired, purchased or
otherwise acquired, directly or indirectly, for consideration (other than
equity interests in such person or rights therefor) any shares of any class
of its capital stock or other equity securities outstanding on or after the
Initial Borrowing Date (or any options or warrants issued by such Person
with respect to its capital stock or other equity securities), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of
its Subsidiaries to purchase or otherwise acquire for consideration any
shares of any class of the capital stock or other equity securities of such
Person outstanding on or after the Initial Borrowing Date (or any options
or warrants issued by such Person with respect to its capital stock or
other equity securities). "Dividends" with respect to any Person shall not
include payments made or required to be made by such Person with respect to
any management or employee stock or equity appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside
of any funds for the foregoing purposes.
"Documentation Agent" shall mean the Bank (if any)
designated as the Documentation Agent hereunder by the Administrative Agent
and Holdings.
"Documents" shall mean and include the Transaction Documents
and the Credit Documents.
"Dollar Equivalent" shall mean, at any time for the
determination thereof, (i) except as provided in clause (ii) below, the
amount of Dollars which could be purchased with the amount of the relevant
Alternate Currency involved in such computation at the spot exchange rate
therefor as quoted by the Administrative Agent as of 11:00 A.M. (Luxembourg
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date and (ii) for purposes of Section
14.07(d), the amount of Dollars which could be purchased with the amount of
the relevant Alternate Currency involved in such computation at the spot
exchange rate therefor as quoted or utilized by the Administrative Agent on
the date of any determination thereof for purchase on such day.
"Dollar Loan" shall mean each A-1 Term Loan, each B-1 Term
Loan, each Swingline Loan and each Tranche 1 Revolving Loan and Tranche 2
Revolving Loan denominated in Dollars.
"Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States.
"Domestic Subsidiary" shall mean (i) each Subsidiary of
Holdings that is incorporated or organized in the United States or any
State or territory thereof and (ii) each Subsidiary of Holdings (including,
without limitation, GGH and GWH) that is incorporated or organized outside
the United States or any State or territory thereof but which is, or has
elected to be, treated as a partnership or disregarded entity pursuant to
the provisions of Treasury Regulations Section 301.7701-3.
"Drawing" shall have the meaning provided in Section
2.04(b).
"Effective Date" shall have the meaning provided in Section
14.10.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"EMU Legislation" shall mean the legislative measures of the
European Council for the introduction of, changeover to or operation of a
single or unified European currency.
"Environmental Claims" shall mean any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of non-compliance or violation,
investigations or proceedings arising under any Environmental Law
(hereafter "Claims") or any permit issued under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury or threat of injury
to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal,
state, provincial, foreign or local statute, law, rule, regulation,
ordinance, code, legally binding guideline or written policy and rule of
common law now or hereafter in effect and in each case as amended, and any
legally binding judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment
relating to the environment, employee health and safety or Hazardous
Materials, including, without limitation, CERCLA; RCRA; the Federal Water
Pollution Control Act, 33 U.S.C.ss.2601 et seq.; the Clean Air Act, 42
U.S.C.ss.7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.ss.3803 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C.ss. 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42
U.S.C.ss.11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C.ss.1801 et seq.; the Occupational Safety and Health Act, 29
U.S.C.ss.651 et seq.; and any state and local or foreign counterparts or
equivalents, in each case as amended from time to time.
"Equity Financing" shall have the meaning provided in
Section 5.07(b).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder. Section references to ERISA are to ERISA, as
in effect on the date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with Holdings, the Borrowers or any
of their Subsidiaries would be deemed to be a "single employer" (i) within
the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a
result of Holdings, the Borrowers or any of their Subsidiaries being or
having been a general partner of such person.
"Euro" shall mean the single currency of the participating
member states as described in any EMU Legislation.
"Euro Equivalent" shall mean, at any time for the
determination thereof, the amount of Euros which could be purchased with
the amount of Dollars involved in such computation at the spot exchange
rate therefor as quoted by the Administrative Agent as of 11:00 A.M.
(London time) on the date two Business Days prior to the date of any
determination thereof for purchase on such date.
"EURIBOR" shall mean, for each Interest Period applicable to
any Loan denominated in Euros or Deutsche Marks, (i) the per annum rate for
deposits in Euros or Deutsche Marks as determined by the Administrative
Agent for a period corresponding to the duration of the relevant Interest
Period which appears on Reuters Page EURIBOR-01 at approximately 11:00 A.M.
(Brussels time) on the date which is two Business Days prior to the
commencement of such Interest Period (or, in the case of Interest Periods
commencing on the Initial Borrowing Date, on the Initial Borrowing Date) or
(ii) if such rate is not shown on Reuters Page EURIBOR-01, the average
offered quotation to prime banks in the Euro-zone interbank market by the
Banks for Euro or Deutsche Mark deposits of amounts comparable to the
principal amount of the Loan for which an interest rate is then being
determined with maturities comparable to the Interest Period to be
applicable to such Loan (rounded upward to the next whole multiple of 1/16
of 1%), determined as of 11:00 A.M. (Brussels time) on the date which is
two Business Days prior to the commencement of such Interest Period (or, in
the case of Interest Periods commencing on the Initial Borrowing Date, on
the Initial Borrowing Date). The reference to Reuters Page EURIBOR-01 in
this definition shall be construed to be a reference to the relevant page
or any other page that may replace such page on the Reuters service.
Notwithstanding anything to the contrary contained above, in the event the
Administrative Agent has made any determination pursuant to Section
1.10(a)(i) in respect of Euro Rate Loans denominated in Euros or Deutsche
Marks, or in the circumstances described in clause (i) to the proviso to
Section 1.10(b) in respect of Euro Rate Loans denominated in Euros, the
EURIBOR determined pursuant to this definition shall instead be the rate
determined by the Administrative Agent as the all-in-cost of funds for the
Administrative Agent to fund a Foreign Currency Loan denominated in Euros
or Deutsche Marks with maturities comparable to the Interest Period
applicable thereto.
"Euro Rate" shall mean (i) with respect to Dollar Loans, the
Eurodollar Rate, (ii) with respect to Foreign Currency Loans denominated in
Deutsche Marks, EURIBOR, (iii) with respect to Foreign Currency Loans
denominated in Euros, EURIBOR and (iv) with respect to Foreign Currency
Loans denominated in Pounds Sterling, Sterling LIBOR.
"Euro Rate Loan" shall mean each A-1 Term Loan outstanding
as a Eurodollar Loan, each A-2 Term Loan, each A-3 Term Loan, each B-1 Term
Loan outstanding as a Eurodollar Loan, each B-2 Term Loan, each B-3 Term
Loan outstanding as a Eurodollar Loan, each Tranche 1 Revolving Loan (other
than any such Loan incurred as a Base Rate Loan) and each Tranche 2
Revolving Loan.
"Euro-zone" shall mean the region composed of the member
states as described in any EMU Legislation.
"Eurodollar Loan" shall mean each Dollar Loan designated as
such by a Borrower at the time of the incurrence thereof or conversion
thereto.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period, (a) the rate appearing on Page 3750 of the
Dow Jones Telerate Screen (or on any successor or substitute page of such
Screen, or any successor to or substitute for such Screen, providing rate
quotations comparable to those currently provided on such page of such
Screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the interbank Eurodollar market) at approximately 11:00 A.M.,
New York time, two Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period, provided that in the event that such rate is not available
at such time for any reason, then this component of the "Eurodollar Rate"
with respect to such Eurodollar Loan for such Interest Period shall be the
offered quotation to first- class banks in the interbank Eurodollar market
by BTCo for Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar Loan of
BTCo with maturities comparable to the Interest Period applicable to such
Eurodollar Loan commencing two Business Days thereafter as of 11:00 A.M.
(New York time) on the date which is two Business Days prior to the
commencement of such Interest Period; divided (and rounded off to the
nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required
by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in
Section 9.
"Excess Cash Flow" shall mean, for any period, the
difference between (a) the sum of (i) Adjusted Consolidated Net Income for
such period and (ii) the decrease, if any, in Adjusted Consolidated Working
Capital from the first day to the last day of such period, and (b) the sum
of (i) an amount equal to (1) the amount of Consolidated Capital
Expenditures (but excluding Consolidated Capital Expenditures financed with
equity or Indebtedness (other than the Revolving Loans and loans under
local credit lines)) made during such period pursuant to and in accordance
with Section 8.07 (a) plus (or minus, if negative) (2) the Rollover Amount
for such period to be carried forward to the next period less the Rollover
Amount (if any) for the preceding period carried forward to the current
period, (ii) without duplication of amounts deducted under preceding clause
(b)(i), the amounts expended by Holdings and its Subsidiaries in respect of
Permitted Acquisitions (but excluding Permitted Acquisitions financed with
equity or Indebtedness other than the Revolving Loans and loans under local
credit lines), (iii) the aggregate amount of permanent principal payments
of Indebtedness of Holdings and its Subsidiaries (but excluding repayments
of (A) Indebtedness made with the proceeds of equity or with other
Indebtedness (other than the Revolving Loans and loans under local credit
lines) and (B) Loans, provided that repayments of Loans shall be deducted
in determining Excess Cash Flow if such repayments were (x) required as a
result of a Scheduled Repayment under Section 4.02(b) or (c), or (y) made
as a voluntary prepayment pursuant to Section 4.01 with internally
generated funds (but in the case of a voluntary prepayment of Revolving
Loans, only to the extent accompanied by a voluntary reduction to the Total
Revolving Loan Commitment)) during such period, (iv) the increase, if any,
in Adjusted Consolidated Working Capital from the first day to the last day
of such period, (v) an amount of cash spent during such period with respect
to expenses accrued on Holdings' or the Borrowers' balance sheet in
connection with the Transaction or a Permitted Acquisition including
purchase accounting reserves, (vi) the aggregate amount of Dividends paid
during such period under Section 8.03(iv) (other than any such Dividends
paid with the proceeds of an equity issuance), (vii) taxes paid by Holdings
and its Subsidiaries during such period to the extent not deducted in
determining Adjusted Consolidated Net Income for such period, and including
as a deduction under this clause (vii) any taxes payable by Holdings and
its Subsidiaries in respect of such period even if such taxes are paid in a
subsequent period, provided that if a deduction is made during any period
for taxes payable in respect of, but not paid in, such period, then no
deduction shall be made for such taxes (under this clause (vii) or under
clause (vi) above) in the period in which such taxes are paid and (viii)
reductions in purchase accounting reserves or reductions in other long term
liabilities on the balance sheet of Holdings or the Borrowers on the
Initial Borrowing Date (to the extent such reductions resulted in an
increase to Adjusted Consolidated Net income for such period).
"Excess Cash Payment Date" shall mean the earlier of (x) the
date of delivery of the financial statements pursuant to Section 7.01(c) in
respect of Holding's fiscal year then last ended and (y) the date occurring
105 days after the last day of each fiscal year of the Borrowers (in either
case beginning with its fiscal year ended December 31, 2000).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately
preceding fiscal year of Holdings (beginning with its fiscal year ended
December 31, 2000).
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Excluded Capital Expenditures" shall mean Capital
Expenditures made under Section 8.07(b).
"Existing Indebtedness" shall have the meaning provided in
Section 6.21.
"Existing Letter of Credit" shall have the meaning provided
in Section 2.01(d).
"Facing Fee" shall have the meaning provided in Section
3.01(d).
"Federal Funds Rate" shall mean 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 the
Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or
referred to in Section 3.01.
"Foreign Currency Loan" shall mean each A-2 Term Loan, each
A-3 Term Loan, each B-2 Term Loan and each Revolving Loan which is an
Alternate Currency Loan.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by Holdings,
the Borrowers or any of their Subsidiaries primarily for the benefit of
employees of Holdings, the Borrowers or any of their Subsidiaries residing
outside the United States of America, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of Holdings
that is not a Domestic Subsidiary.
"Foreign Subsidiary Guaranty" shall have the meaning
provided in Section 7.12.
"Foundation" shall mean the Gleason Foundation, a private
charitable foundation.
"Foundation Agreement" shall mean the agreement between the
Foundation and Torque, dated as of December 8, 1999.
"German Bank" shall mean each Bank having (i) an A-2 Term
Loan Commitment or outstanding A-2 Term Loans, (ii) a B-2 Term Loan
Commitment or outstanding B-2 Term Loans or (iii) a Tranche 2 Revolving
Loan Commitment and/or outstanding Tranche 2 Revolving Loans; it being
understood and agreed that each such Bank (whether a party hereto on the
Initial Borrowing Date or which becomes a party hereto as a Bank
thereafter) shall be an institution organized under the laws of the Federal
Republic of Germany or an institution not organized under the laws of the
Federal Republic of Germany which shall fund such Loans from a branch
located in the Federal Republic of Germany.
"German Loans" shall mean (i) A-2 Term Loans, (ii) B-2 Term
Loans and (iii) Tranche 2 Revolving Loans made to GGH.
"German Tax Certificate" shall mean a certificate
substantially in the form of Exhibit N hereto.
"GGH" shall have the meaning provided in the first paragraph
of this Agreement.
"GIMC" shall have the meaning provided in the first
paragraph of this Agreement.
"Guaranteed Creditors" shall mean and include the
Administrative Agent, the Collateral Agent, each Issuing Bank, each Bank
and each Person (other than any Credit Party) party to an Interest Rate
Protection Agreement or Other Hedging Agreements to the extent such party
constitutes a Secured Creditor under the Security Documents.
"Guarantor" shall mean each of Holdings, GWR and each
Subsidiary Guarantor.
"Guaranty" shall mean and include the Holdings Guaranty, the
GWR Guaranty, the Subsidiary Guaranty executed by the Domestic Subsidiaries
of Holdings (other than GWR) and any guaranty entered into pursuant to
Section 7.12.
"GWH" shall have the meaning provided in the first paragraph
of this Agreement.
"GWR" shall have the meaning provided in the first paragraph
of this Agreement.
"GWR Guaranty" shall mean the guaranty of GWR pursuant to
Section 13.
"Hazardous Materials" shall mean (a) any petrochemical or
petroleum products, radioactive materials, asbestos in any form that is
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated
biphenyl's, and radon gas; and (b) any chemicals, materials or substances
defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "restricted hazardous
materials," "extremely hazardous materials," "restrictive hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar meaning and regulatory effect under any
applicable Environmental Law.
"Holdings" shall have the meaning provided in the first
paragraph of this Agreement.
"Holdings Common Stock" shall mean the outstanding common
stock of Holdings.
"Holdings Guaranty" shall mean the guaranty of Holdings
pursuant to Section 12.
"Holdings IPO" shall mean a primary issuance by Holdings of
Holdings Common Stock pursuant to a registered initial public offering.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services, (ii) the maximum
amount available to be drawn under all letters of credit issued for the
account of such Person and all unpaid drawings in respect of such letters
of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on
any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person, (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and
similar obligations, (vi) all Contingent Obligations of such Person in
respect of Indebtedness of a type described in clauses (i), (ii), (iii),
(iv) or (vii), and (vii) all net obligations or exposure under any Interest
Rate Protection Agreement or Other Hedging Agreement or under any similar
type of agreement or arrangement, provided that Indebtedness shall not
include trade payables and accrued expenses, in each case arising in the
ordinary course of business.
"Indebtedness to be Refinanced" shall mean the Credit
Agreement, dated as of July 31, 1997, among Holdings, various Subsidiaries
of Holdings, various lending institutions and The Chase Manhattan Bank, as
Administrative Agent.
"Initial Borrowing Date" shall mean the date on which the
initial Credit Event occurs.
"Intercompany Loans" shall have the meaning provided in
Section 8.05(vii).
"Intercompany Note" shall mean promissory notes,
substantially in the form of Exhibit K evidencing Intercompany Loans.
"Intercompany Reorganization" shall mean the intercompany
transactions described on Schedule XVI hereto.
"Interest Coverage Ratio" shall mean, for any Test Period,
the ratio of (x) Consolidated EBITDA for such Test Period to (y)
Consolidated Cash Interest Expense for such Test Period. All calculation of
the Interest Coverage Ratio shall be made on a Pro Forma Basis, with
determinations of the Interest Coverage Ratio to give effect to all
adjustments contained in the definition of "Pro Forma Basis" contained
herein.
"Interest Determination Date" shall mean, with respect to
any Euro Rate Loan, the second Business Day prior to the commencement of
any Interest Period relating to such Euro Rate Loan (except as provided in
the definitions of EURIBOR and Sterling LIBOR with respect to Interest
Periods commencing on or within one Business Day following the Initial
Borrowing Date).
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar
agreement, interest rate hedging agreement, interest rate floor agreement
or other similar agreement or arrangement.
"Issuing Bank" shall mean BTCo and any other Bank which is
requested by the Borrowers, and which agrees in its sole discretion, to
issue Letters of Credit hereunder (and/or any Lending Affiliate of the
foregoing Persons performing obligations on its behalf and reasonably
acceptable to the Borrowers). As of the Effective Date, and until BTCo
otherwise notifies the Borrowers and the Banks, any Letters of Credit
issued by BTCo or one of its Lending Affiliates as Issuing Bank shall be
issued by (i) in the case of Letters of Credit (other than Bank Guarantees)
issued for the account of GWR and GIMC, Bankers Trust Company, and (ii) in
the case of Letters of Credit issued for the account of GGH or GWH, and all
Bank Guarantees, Deutsche Bank AG, Munich Branch and/or Deutsche Bank
Luxembourg S.A.
"Judgment Currency" shall have the meaning provided in
Section 14.15(a).
"Judgment Currency Conversion Date" shall have the meaning
provided in Section 14.15(a).
"L/C Supportable Obligations" shall mean (i) obligations of
the Borrowers or its Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation,
surety bonds and other similar obligations and (ii) such other obligations
of the Borrowers or any of its Subsidiaries which would not be inconsistent
with the internal policy of the respective Issuing Bank (applied
consistently to all of its customers) and otherwise permitted to exist
pursuant to the terms of this Agreement.
"Leaseholds" of any Person means all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lending Affiliate" shall mean, with respect to any Person,
any other Person (i) directly or indirectly controlling (including, but not
limited to, all directors, officers and partners of such Person),
controlled by, or under direct or indirect common control with, such Person
or (ii) that directly or indirectly owns more than 50% of any class of the
voting securities or capital stock of or equity interests in such Person. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of the Tranche 1 Letter of Credit Outstandings and the Tranche 2 Letter
of Credit Outstandings at such time.
"Letter of Credit Request" shall have the meaning provided
in Section 2.02(a)
"Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Debt at such time to Consolidated EBITDA for the Test Period
most recently ended. All calculations of the Leverage Ratio shall be made
on a Pro Forma Basis, with determinations of the Leverage Ratio to give
effect to all adjustments contained in the definition of "Pro Forma Basis"
contained herein.
"LIBOR" shall mean, with respect to any Borrowing of Euro
Rate Loans of an Approved Currency, the relevant interest rate, i.e., the
Eurodollar Rate, Deutsche Mark LIBOR, Euro LIBOR or Sterling LIBOR.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other) or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, and any lease having substantially the same
effect as any of the foregoing).
"Loan" shall mean each Term Loan, each Revolving Loan and
each Swingline Loan.
"Local time" shall mean the local time in effect at (x) the
applicable Notice Office (in the case of Notices of Borrowing, Notices of
Conversion and Letter of Credit Requests) and (y) the applicable Payment
Office in the case of all payments and disbursements of Loans or Letters of
Credit.
"Majority Banks" of any Tranche shall mean those
Non-Defaulting Banks which would constitute the Required Banks under, and
as defined in, this Agreement if all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated.
"Mandatory Borrowing" shall mean each Tranche 1 Mandatory
Borrowing and each Tranche 2 Mandatory Borrowing.
"Mandatory Cost" shall mean, in relation to any Bank, the
sum of (a) any fees or other amounts payable by the relevant Bank in
relation to banking supervision by the Financial Services Authority, as
determined in accordance with Schedule XII, and (b) the cost imputed to
such Bank of compliance with any reserve asset requirements of the European
Central Bank.
"Margin Stock" shall have the meaning provided in Regulation U.
"Maturity Date" with respect to a Tranche shall mean either
the A Term Loan Maturity Date, the B Term Loan Maturity Date, or the
Revolving Loan Maturity Date, as the case may be.
"Maximum Swingline Amount" shall mean $10,000,000.
"Merger" shall mean the merger and related transactions
between Holdings, Torque and Torque Merger Sub as described in the Merger
Agreement, whereby Torque Merger Sub will merge into Holdings, with
Holdings being the surviving corporation.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of December 8, 1999, by and among Holdings, Torque and
Torque Merger Sub, as amended by amendment No. 1 to the Agreement and Plan
of Merger dated as of February 3, 2000.
"Merger Date" shall mean the date of the consummation of the
Merger.
"Merger Documents" shall mean the Merger Agreement, and all
documents related to the Merger.
"Minimum Borrowing Amount" shall mean (i) with respect to
Term Loans, $5,000,000 (or the Euro Equivalent, Deutsche Mark Equivalent or
Sterling Equivalent, as the case may be), (ii) with respect to Revolving
Loans maintained as Euro Rate Loans, $1,000,000 (or the Euro Equivalent,
Deutsche Mark Equivalent or Sterling Equivalent, as the case may be), (iii)
with respect to Revolving Loans maintained as Base Rate Loans, $500,000 and
(iv) with respect to Swingline Loans, $100,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall have the meaning provided in Section
5.18(a) and, after the execution and delivery thereof, shall include each
Additional Mortgage.
"Mortgage Policies" shall have the meaning provided in
Section 5.18(b).
"Mortgaged Property" shall have the meaning provided in
Section 5.18(a) and, after the execution and delivery of any Additional
Mortgage, shall include the respective Additional Mortgaged Property.
"Multiemployer Plan" shall mean any multiemployer plan as
defined in Section 4001(a)(3) of ERISA, which is maintained or contributed
to by (or to which there is an obligation to contribute of) Holdings, the
Borrowers or any of their Subsidiaries or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on
which Holdings, the Borrowers or any of their Subsidiaries or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to
such plan, other than any Foreign Pension Plan.
"Net Cash Proceeds" shall mean, with respect to any Asset
Sale, the Cash Proceeds resulting therefrom net of (x) cash expenses of
sale (including brokerage fees, if any, and payment of principal, premium
and interest of Indebtedness (other than the Loans) required to be repaid
as a result of such Asset Sale) and (y) incremental income taxes paid or
payable as a result thereof.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall mean each A-1 Term Note, A-2 Term Note, A-3
Term Note, B-1 Term Note, B-2 Term Note, Tranche 1 Revolving Note, Tranche
2 Revolving Note, each Tranche 1 Swingline Note and each Tranche 2
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean (i) except as provided in clause
(iii) below, the office of Bankers Trust Company, as Administrative Agent,
located at One Bankers Trust Plaza, New York, New York 10006, with a copy
to Deutsche Bank Luxembourg S.A., at 2, boulevard Konrad Adenauer, L-1115
Luxembourg, or such other office or offices as the Administrative Agent may
designate to Holdings, the Borrowers and the Banks from time to time, and
(ii) in the case of Foreign Currency Loans, and Letters of Credit issued
for the account of GGH and GWH, the office of Deutsche Bank Luxembourg
S.A., as Administrative Agent, located at 2, boulevard Konrad Adenauer,
L-1115 Luxembourg, with a copy to Bankers Trust Company at One Bankers
Trust Company, New York, New York 10006, or such other office or offices as
the Administrative Agent may designate to Holdings, the Borrowers and the
Banks from time to time.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent or any Bank pursuant to the
terms of this Agreement or any other Credit Document.
"Other Creditor" shall have the meaning provided in the
respective Security Documents.
"Other Hedging Agreements" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against fluctuations of
currency values.
"Participant" shall mean each Tranche 1 Participant and each
Tranche 2 Participant.
"Participation" shall mean each Tranche 1 Participation and
each Tranche 2 Participation.
"Payment Office" shall mean (i) except as provided in clause
(ii) below, the office of the Administrative Agent located at One Bankers
Trust Plaza, New York, New York 10006 or such other office as the
Administrative Agent may designate to Holdings, the Borrowers and the
Banks from time to time, and (ii) in the case of Foreign Currency Loans,
Dollar Loans incurred by GGH and GWH and Letters of Credit issued for the
account of GGH and GWH, the office of Deutsche Bank Luxembourg S.A., as
Administrative Agent, located at 2, boulevard Konrad Adenauer, L-1115
Luxembourg or such other office as the Administrative Agent may designate
to Holdings, the Borrowers and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean the acquisition by GWR or
any of its Subsidiaries (to the extent that any such Subsidiary which is a
Credit Party is able to, and does, grant a Lien to the Collateral Agent for
the benefit of the Secured Creditors on and security interest in assets
acquired thereby in connection with such Permitted Acquisition, but limited
to 65% of the capital stock of any Foreign Subsidiary) of (x) assets
constituting all or substantially all of a business or division of any
Person not already a Subsidiary of GWR or (y) all or substantially all of
the capital stock or other ownership interests of any such Person which
Person shall, as a result of such acquisition, become a Wholly-Owned
Subsidiary of GWR or such Subsidiary, provided that (A) the consideration
paid by GWR and/or its Domestic Subsidiaries can be in the form of (i)
cash, (ii) the issuance to any such Person of Permitted Seller Notes, (iii)
the issuance to such Person of Permitted Earn-Out Debt and/or Permitted
Earn-Out Preferred Equity, or (iv) the issuance to any such Person of
common equity of Holdings or Qualified Preferred Equity issued by Holdings,
and (B) the assets acquired, or the business of the Person whose stock is
acquired, shall be in the same, similar or related line of business in
which the Borrowers and their Subsidiaries are already engaged.
Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition shall be a Permitted Acquisition only if
all requirements of Section 7.14 are met with respect thereto.
"Permitted Acquisition Cost Savings" shall mean, at any time
of measurement, in connection with each Permitted Acquisition, those
demonstrable cost savings in connection with or as a result of such
Permitted Acquisition, provided that such cost savings would be permitted
to be recognized in pro forma statements prepared in accordance with
Regulation S-X of the Securities Act.
"Permitted Earn-Out Debt" shall mean Indebtedness of
Holdings incurred in connection with a Permitted Acquisition and in
accordance with Section 7.14, which Indebtedness is not secured by any
assets of Holdings or any of its Subsidiaries (including, without
limitation, the assets so acquired) and is not guaranteed by any Subsidiary
of Holdings and is only payable by Holdings in the event certain future
performance goals are achieved with respect to the assets acquired and is
not payable in accordance with its terms to the extent there exists a
Default or an Event of Default; provided that such Indebtedness shall only
constitute Permitted Earn-Out Debt to the extent the terms of such
Indebtedness expressly limit the maximum potential liability of Holdings
with respect thereto.
"Permitted Earn-Out Preferred Equity" shall mean preferred
equity of Holdings issued in connection with a Permitted Acquisition and in
accordance with Section 7.14, which preferred equity is not secured by any
assets of Holdings or any of its Subsidiaries (including, without
limitation, the assets so acquired) and is not guaranteed by any Subsidiary
of Holdings and is only payable by Holdings in the event certain future
performance goals are achieved with respect to the assets acquired and is
not payable in accordance with its terms to the extent there exists a
Default or an Event of Default; provided that such preferred equity shall
only constitute Permitted Earn-Out Preferred Equity to the extent the terms
of such preferred equity expressly limit the maximum potential liability of
Holdings with respect thereto.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto, all of
which exceptions must be acceptable to the Administrative Agent in its
reasonable discretion.
"Permitted Holders" shall mean Persons (other than the
Foundation and other than holders of publicly traded shares of Holdings
Common Stock) holding the equity interests (or rights to purchase equity
interests) of Holdings on the Initial Borrowing Date and their respective
Affiliates (including for the avoidance of doubt Vestar/Gleason Investors,
L.L.C.) and partners and, in the case of any such Person who is an
individual, the immediate family members of such Person and trusts for the
benefit of such Person and/or his or her immediate family members.
"Permitted Liens" shall have the meaning provided in Section
8.01.
"Permitted Seller Notes" shall mean notes issued by Holdings
to sellers of stock (or other equity interests) or assets in a Permitted
Acquisition and issued in accordance with Section 7.14, which notes shall
be subordinated, unsecured and unguaranteed, and shall otherwise be in form
and substance satisfactory to the Administrative Agent.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section
3(2) of ERISA, which is maintained or contributed to by (or to which there
is an obligation to contribute of) Holdings, the Borrowers or any of their
Subsidiaries or an ERISA Affiliate, and each such plan for the five year
period immediately following the latest date on which Holdings, the
Borrowers or any of their Subsidiaries or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreements" shall have the meaning provided in
Section 5.08.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each Pledge Agreement.
"Pledged Securities" shall have the meaning provided in the
Pledge Agreements.
"Pledged Stock" shall have the meaning provided in the
Pledge Agreements.
"Pounds Sterling" shall mean freely transferable lawful
money of the United Kingdom.
"Pre-Syndication Interest Period" shall mean successive one
week Interest Periods which shall apply to all outstanding Euro Rate Loans
and the first of which shall commence on the Initial Borrowing Date,
provided that no Pre-Syndication Interest Period shall begin after the
Syndication Date.
"Prime Lending Rate" shall mean the rate which BTCo
announces from time to time as its prime lending rate, the Prime Lending
Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. BTCo may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Principal Amount" shall mean (i) the stated amount of each
Term Loan, (ii) the stated amount of each Swingline Loan, (iii) the stated
amount of each Revolving Loan denominated in Dollars, and/or (iv) the
Dollar Equivalent of the stated amount of each Alternate Currency Loan, as
the context may require.
"Pro Forma Basis" shall mean, in connection with any
calculation of compliance with any financial covenant or financial term,
the calculation thereof after giving effect on a pro forma basis to (x) the
incurrence of any Indebtedness the proceeds of which are used to finance a
Permitted Acquisition after the first day of the relevant Calculation
Period as if such Indebtedness, had been incurred (and the proceeds thereof
applied) on the first day of the relevant Calculation Period, (y) the
permanent repayment of any Indebtedness (other than revolving Indebtedness
unless accompanied by a corresponding commitment reduction or paid with
other permitted Indebtedness) after the first day of the relevant
Calculation Period as if such Indebtedness had been retired or redeemed on
the first day of the relevant Calculation Period and (z) the Permitted
Acquisition, if any, then being consummated as well as any other Permitted
Acquisition consummated after the first day of the relevant Calculation
Period and on or prior to the date of the respective Permitted Acquisition
then being effected as if such Permitted Acquisitions had been consummated
at the beginning of such Calculation Period, with the following rules to
apply in connection therewith:
(i) all Indebtedness (x) used to finance Permitted
Acquisitions and incurred after the first day of the relevant
Calculation Period shall be deemed to have been incurred (and the
proceeds thereof applied) on the first day of the respective
Calculation Period and remain outstanding through the date of
determination (and thereafter in the case of projections pursuant
to Section 7.14(v)) and (y) permanently retired or redeemed after
the first day of the relevant Calculation Period (other than
resolving Indebtedness unless accompanied by a corresponding
commitment reduction) shall be deemed to have been retired or
redeemed on the first day of the respective Calculation Period and
remain retired through the date of determination (and thereafter in
the case of projections pursuant to Section 7.14(v));
(ii) all Indebtedness assumed to be outstanding pursuant to
preceding clause (i) shall be deemed to have borne interest at (x)
the rate applicable thereto, in the case of fixed rate Indebtedness
or (y) the rates which would have been applicable thereto during
the respective period when same was deemed outstanding, in the case
of floating rate Indebtedness (although interest expense with
respect to any Indebtedness for periods while same was actually
outstanding during the respective period shall be calculated using
the actual rates applicable thereto while same was actually
outstanding); provided that for purposes of calculations pursuant
to Section 7.14(v), all Indebtedness (whether actually outstanding
or deemed outstanding) bearing interest at a floating rate of
interest shall be tested on the basis of the rates applicable at
the time the determination is made pursuant to said provisions; and
(iii) in making any determination of Consolidated EBITDA,
pro forma effect shall be given to all Permitted Acquisition Cost
Savings, as if such Permitted Acquisition Cost Savings were
realized on the first day of the relevant period.
"Qualified Preferred Equity" shall mean any preferred equity
of Holdings the express terms of which shall provide that Dividends thereon
shall not be required to be paid in cash at any time that such cash payment
would be prohibited by the terms of this Agreement (and any refinancing,
replacements or extensions hereof) and in either case which, by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event (including an event
which would constitute a Change of Control), cannot mature (excluding any
maturity as the result of an optional redemption by the issuer thereof) and
is not mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, and is not redeemable, or required to be repurchased, at the
sole option of the holder thereof (including, without limitation, upon the
occurrence of an event which would constitute a Change of Control), in
whole or in part, on or prior to the third anniversary of the then latest
Maturity Date (or, in respect of no more than $10,000,000 in the aggregate
of any such Qualified Preferred Equity, the first anniversary of the then
latest Maturity Date).
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December (commencing with the last Business
Day of March, 2000).
"RC Bank" shall mean, at any time, each Tranche 1 RC Bank
and each Tranche 2 RC Bank at such time.
"RCRA" shall mean the Resource Conservation and Recovery
Act, as the same may be amended from time to time, 42 U.S.C. ss. 6901 et
seq.
"Real Property" of any Person shall mean all the right,
title and interest of such Person in and to land, improvements thereto and
fixtures thereon, including Leaseholds.
"Recovery Event" shall mean the receipt by Holdings, any
Borrower or any of their respective Subsidiaries of any cash insurance
proceeds or condemnation award payable (i) by reason of theft, loss,
physical destruction or damage or any other similar event with respect to
any Mortgaged Property, and (ii) under any policy of insurance required to
be maintained under Section 7.03 as relating to any Mortgaged Property.
"Reference Banks" shall mean Deutsche Bank Luxembourg S.A.
and, after the Syndication Date, such other Bank or Banks (if any) as shall
be selected by the Administrative Agent and Holdings and identified to the
other parties hereto.
"Refinancing" shall mean and include the refinancing and
repayment in full of all amounts outstanding under, and the termination in
full of all commitments and letters of credit in respect of, the
Indebtedness to be Refinanced.
"Register" shall have the meaning provided in Section 14.14.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof establishing reserve
requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing or migration into the environment.
"Relevant Currency Equivalent" shall mean the Dollar
Equivalent, the Deutsche Mark Equivalent, the Euro Equivalent or the
Sterling Equivalent, as the case may be.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of
ERISA other than those events as to which the 30-day notice period is
waived under subsections .22, .23, .25, .27 or .28 of PBGC Regulation
Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Term Loans, Tranche 1 Revolving Loan Commitments (or
after the Total Tranche 1 Revolving Loan Commitment has been terminated,
outstanding Tranche 1 Revolving Loans and Tranche 1 Revolving Percentages
of outstanding Swingline Loans and Tranche 1 Letter of Credit Outstandings)
and Tranche 2 Revolving Loan Commitments (or, after the Total Tranche 2
Revolving Loan Commitment has been terminated, outstanding Tranche 2
Revolving Loans and Tranche 2 Revolving Percentages of Tranche 2 Letter of
Credit Outstandings) constitute greater than 50% of the sum of (i) the
total outstanding Term Loans of Non-Defaulting Banks, (ii) the Total
Tranche 1 Revolving Loan Commitment less the aggregate Tranche 1 Revolving
Loan Commitments of Defaulting Banks (or after the Total Tranche 1
Revolving Loan Commitment has been terminated, the total outstanding
Tranche 1 Revolving Loans of Non-Defaulting Banks and the aggregate Tranche
1 Revolving Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Tranche 1 Letter of Credit Outstandings at
such time) and (iii) the Total Tranche 2 Revolving Loan Commitment less the
aggregate Tranche 2 Revolving Loan Commitments of Defaulting Banks (or,
after the Total Tranche 2 Revolving Loan Commitment has been terminated,
the total outstanding Tranche 2 Revolving Loans of Non-Defaulting Banks and
the aggregate Tranche 2 Revolving Percentages of all Non-Defaulting Banks
of the Tranche 2 Letter of Credit Outstandings at such time). For purposes
of determining the Required Banks at any time, the principal amount of each
Foreign Currency Loan shall be deemed to be the Dollar Equivalent of the
principal amount of such Foreign Currency Loan at such time.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall mean each Tranche 1 Revolving Loan
and each Tranche 2 Revolving Loan.
"Revolving Loan Maturity Date" shall mean the sixth
anniversary of the Effective Date.
"Rights Agreement" shall mean the Rights Agreement between
Holdings and ChaseMellon Shareholders Services, LLC, as Rights Agent, dated
as of May 4, 1999, and any amendments thereto.
"Rollover Amount" shall have the meaning provided in Section
8.07(a).
"S&P" shall mean Standard & Poor's Ratings Services.
"Scheduled Repayments" shall mean each A-1 Term Loan
Scheduled Repayment, each A-2 Term Loan Scheduled Repayment, each A-3 Term
Loan Scheduled Repayment, each B-1 Term Loan Scheduled Repayment and each
B-2 Term Loan Scheduled Repayment.
"SEC" shall have the meaning provided in Section 7.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned to that
term in the respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in
Section 5.09.
"Security Agreement Collateral" shall mean all "Collateral"
as defined in each Security Agreement.
"Security Documents" shall mean each Pledge Agreement, the
Security Agreement and each Mortgage.
"Series A Preferred Equity" shall mean the shares of 13.17%
Series A Cumulative Preferred Stock of Holdings.
"Shareholder Subordinated Note" shall mean an unsecured
junior subordinated note issued by Holdings (and not guaranteed or
supported in any way by the Borrowers or any of their Subsidiaries) in the
form of Exhibit M, as the same may be amended, modified or supplemented
from time to time pursuant to the terms hereof and thereof.
"Shareholders Agreement" shall have the meaning provided in
Section 5.06(i).
"Standby Letter of Credit" shall have the meaning provided
in Section 2.01(a).
"Stated Amount" shall mean, for each Letter of Credit, the
maximum amount available to be drawn thereunder, in each case determined
without regard to whether any conditions to drawing could then be met.
"Sterling Equivalent" shall mean, at any time for the
determination thereof, the amount of Pounds Sterling which could be
purchased with the amount of Dollars involved in such computation at the
spot exchange rate therefor as quoted by the Administrative Agent as of
11:00 A.M. (London time) on the date two Business Days prior to the date of
any determination thereof for purchase on such date.
"Sterling LIBOR" shall mean, with respect to each Interest
Period for any Loan denominated in Pounds Sterling, the rate determined by
the Administrative Agent to be the arithmetic mean (rounded to the nearest
1/16 of 1%) of the offered quotation to prime banks in the European
interbank eurocurrency market by each Reference Bank for Pounds Sterling
deposits of amounts in same day funds comparable to the outstanding
principal amount of the Loan of such Reference Bank for which an interest
rate is then being determined with maturities comparable to the Interest
Period to be applicable to such Loan, determined as of 11:00 A.M. (London
time) on the date which is two Business Days prior to the commencement of
such Interest Period (or, in the case of Interest periods commencing on or
within one Business Day after the Initial Borrowing Date, on the date which
is one Business Day prior to the commencement of such Interest Period),
provided that if only one Reference Bank exists or if one or more of the
Reference Banks fail to provide the Administrative Agent with its aforesaid
rate, then the Sterling LIBOR shall be determined based on the rate or
rates provided to the Administrative Agent by the other Reference Bank or
Banks. Notwithstanding anything to the contrary contained above, in the
event the Administrative Agent has made any determination pursuant to
Section 1.10(a)(i) in respect of Foreign Currency Loans denominated in
Pounds Sterling, or in the circumstances described in clause (i) to the
proviso to Section 1.10(b) in respect to Foreign Currency Loans denominated
in Pounds Sterling, the Sterling LIBOR determined pursuant to this
definition shall instead be the rate determined by the Administrative Agent
as the all-in-cost of funds for the Administrative Agent to fund a Foreign
Currency Loan denominated in Pounds Sterling with maturities comparable to
the Interest Period applicable thereto.
"Subsidiary" shall mean, as to any Person, (i) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, limited liability company, association, joint venture
or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary
of Holdings (other than GWR) which is required to be party to the
Subsidiary Guaranty pursuant to the terms of this Agreement.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5.10.
"Swingline Bank" shall mean BTCo.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Revolving Loan Maturity Date.
"Swingline Loans" shall mean Tranche 1 Swingline Loans and
Tranche 2 Swingline Loans.
"Syndication Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Syndication Date" shall mean the earlier of (x) the 60th
day following the Initial Borrowing Date and (y) that date upon which the
Administrative Agent determines (and notifies the Borrowers) that the
primary syndication (and the resultant addition of Persons as Banks
pursuant to Section 14.04) has been completed.
"Tax Benefit" shall have the meaning provided in Section
4.04(d).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" shall mean the offer of Holdings and Torque
to jointly tender for a portion of the outstanding Holdings Common Stock
for the Tender Offer Price, made pursuant to the Offer to Purchase dated
December 15, 1999, as amended.
"Tender Offer Documents" shall mean the material
documentation related to the Tender Offer, including all public filings
made with the SEC in connection therewith.
"Tender Offer Price" shall mean the price of $23.00 per
share of Holdings Common Stock offered pursuant to the Tender Offer.
"Term Loan" shall mean each A-1 Term Loan, A-2 Term Loan,
A-3 Term Loan, B-1 Term Loan and B-2 Term Loan.
"Test Period" shall mean, at any time, each period of four
consecutive fiscal quarters then last ended, in each case taken as one
accounting period.
"Torque" shall mean Torque Acquisition Co., L.L.C., a
Delaware limited liability company.
"Torque Credit Agreement" shall mean the Credit Agreement,
dated as of the date hereof, among Torque, Torque Merger Sub, various
lending institutions, BTCo, as Administrative Agent and The Bank of Nova
Scotia, as Syndication Agent.
"Torque Merger Sub" shall mean Torque Merger Sub, Inc., a
Delaware corporation and a Wholly-Owned Subsidiary of Torque.
"Total A-1 Term Loan Commitment" shall mean, at any time,
the sum of the A-1 Term Loan Commitments of each of the Banks.
"Total A-2 Term Loan Commitment" shall mean, at any time,
the sum of the A-2 Term Loan Commitments of each of the Banks.
"Total A-3 Term Loan Commitment" shall mean, at any time,
the sum of the A-3 Term Loan Commitments of each of the Banks.
"Total B-1 Term Loan Commitment" shall mean, at any time,
the sum of the B-1 Term Loan Commitments of each of the Banks.
"Total B-2 Term Loan Commitment" shall mean, at any time,
the sum of the B-2 Term Loan Commitments of each of the Banks.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time,
the sum of the Total Tranche 1 Revolving Loan Commitments and Total Tranche
2 Revolving Loan Commitments.
"Total Tranche 1 Revolving Loan Commitment" shall mean the
sum of the Tranche 1 Revolving Loan Commitments of each of the Banks.
"Total Tranche 2 Revolving Loan Commitment" shall mean the
sum of the Tranche 2 Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the sum of the Total Unutilized Tranche 1
Revolving Loan Commitment and the Total Unutilized Tranche 2 Revolving Loan
Commitment.
"Total Unutilized Tranche 1 Revolving Loan Commitment" shall
mean, at any time, an amount equal to the remainder of (x) the then Total
Tranche 1 Revolving Loan Commitment less (y) the sum of the aggregate
Principal Amount of Tranche 1 Revolving Loans and Tranche 1 Swingline Loans
plus the then aggregate amount of Tranche 1 Letter of Credit Outstandings.
"Total Unutilized Tranche 2 Revolving Loan Commitment" shall
mean, at any time, an amount equal to the remainder of (x) the then Total
Tranche 2 Revolving Loan Commitment less (y) the sum of the aggregate
Principal Amount of Tranche 2 Revolving Loans and Tranche 2 Swingline Loans
plus the then aggregate amount of Tranche 2 Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being nine separate
Tranches, i.e., A-1 Term Loans, A-2 Term Loans, A-3 Term Loans, B-1 Term
Loans, B-2 Term Loans, Tranche 1 Revolving Loans, Tranche 2 Revolving
Loans, Tranche 1 Swingline Loans and Tranche 2 Swingline Loans.
"Tranche 1 Letter of Credit" shall mean any Letter of Credit
designated as a "Tranche 1 Letter of Credit" by the applicable Borrower
pursuant to Section 2.01(a) or (d).
"Tranche 1 Letter of Credit Fee" shall have the meaning
provided in Section 3.01(b).
"Tranche 1 Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Tranche
1 Letters of Credit denominated in Dollars, (ii) the Dollar Equivalent of
the aggregate Stated Amount of all outstanding Tranche 1 Letters of Credit
denominated in an Alternate Currency, (iii) the aggregate amount of all
Unpaid Drawings in respect of Tranche 1 Letters of Credit denominated in
Dollars and (iv) the Dollar Equivalent of the aggregate amount of all
Unpaid Drawings in respect of Tranche 1 Letters of Credit denominated in an
Alternate Currency.
"Tranche 1 Mandatory Borrowing" shall have the meaning
provided in Section 1.01(h)(B).
"Tranche 1 Participant" shall have the meaning provided in
Section 2.03(a).
"Tranche 1 Participation" shall have the meaning provided in
Section 2.03(a).
"Tranche 1 RC Bank" shall mean, at any time, each Bank with
a Tranche 1 Revolving Loan Commitment (or after the termination of the
Total Tranche 1 Revolving Loan Commitment, each Bank which had a Tranche 1
Revolving Loan Commitment immediately prior to such termination).
"Tranche 1 Revolving Loan" shall have the meaning set forth
in Section 1.01(f).
"Tranche 1 Revolving Loan Commitment" shall mean, for each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "Tranche 1 Revolving Loan Commitment," as the
same may be (x) reduced from time to time pursuant to Sections 3.02, 3.03
and/or 9 and (y) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 1.13 or 14.04(b).
"Tranche 1 Revolving Note" shall have the meaning provided
in Section 1.05(a)(vi).
"Tranche 1 Revolving Percentage" of any Bank at any time
shall mean a fraction (expressed as a percentage) the numerator of which is
the Tranche 1 Revolving Loan Commitment of such Bank at such time and the
denominator of which is the Total Tranche 1 Revolving Loan Commitment at
such time, provided that if the Tranche 1 Revolving Percentage of any Bank
is to be determined after the Total Tranche 1 Revolving Loan Commitment has
been terminated, then the Tranche 1 Revolving Percentages of the Banks
shall be determined immediately prior (and without giving effect) to such
termination but giving effect to any subsequent assignments permitted
hereunder.
"Tranche 1 Swingline Loan" shall have the meaning provided
in Section 1.01(h)(A).
"Tranche 1 Swingline Note" shall have the meaning provided
in Section 1.05(a)(viii).
"Tranche 2 Letter of Credit" shall mean any Letter of Credit
designated as a "Tranche 2 Letter of Credit" by the applicable Borrower
pursuant to Section 2.01(a) or (d).
"Tranche 2 Letter of Credit Fee" shall have the meaning
provided in Section 3.01(c).
"Tranche 2 Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding Tranche
2 Letters of Credit denominated in Dollars, (ii) the Dollar Equivalent of
the aggregate Stated Amount of all outstanding Tranche 2 Letters of Credit
denominated in an Alternate Currency, (iii) the aggregate amount of all
Unpaid Drawings in respect of Tranche 2 Letters of Credit denominated in
Dollars and (iv) the Dollar Equivalent of the aggregate amount of all
Unpaid Drawings in respect of Tranche 2 Letters of Credit denominated in an
Alternate Currency.
"Tranche 2 Mandatory Borrowing" shall have the meaning
provided in Section 1.01(i)(B).
"Tranche 2 Participant" shall have the meaning provided in
Section 2.03(b).
"Tranche 2 Participation" shall have the meaning provided in
Section 2.03(b).
"Tranche 2 RC Bank" shall mean, at any time, each Bank with
a Tranche 2 Revolving Loan Commitment (or after the termination of the
Total Tranche 2 Revolving Loan Commitment, each Bank which had a Tranche 2
Revolving Loan commitment immediately prior to such termination).
"Tranche 2 Revolving Loan" shall have the meaning set forth
in Section 1.01(g).
"Tranche 2 Revolving Loan Commitment" shall mean, for each
Bank, the amount set forth opposite such Bank's name on Schedule I directly
below the column entitled "Tranche 2 Revolving Loan Commitment," as the
same may be (x) reduced from time to time pursuant to Section 3.02, 3.03
and/or 9 and (y) adjusted from time to time as a result of assignments to
or form such Bank pursuant to Section 1.13 or 14.04(b).
"Tranche 2 Revolving Note" shall have the meaning provided
in Section 1.05(a)(vii).
"Tranche 2 Revolving Percentage" of any Bank at any time
shall mean a fraction (expressed as a percentage) the numerator of which is
the Tranche 2 Revolving Loan Commitment of such Bank at such time and the
denominator of which is the Total Tranche 2 Revolving Loan Commitment at
such time, provided that if the Tranche 2 Revolving Percentage of any Bank
is to be determined after the Total Tranche 2 Revolving Loan Commitment has
been terminated, then the Tranche 2 Revolving Percentages of the Banks
shall be determined immediately prior (and without giving effect) to such
termination but giving effect to any subsequent assignments permitted
hereunder.
"Tranche 2 Swingline Loan" shall have the meaning provided
in Section 1.01(i)(A).
"Tranche 2 Swingline Note" shall have the meaning provided
in Section 1.05(a)(ix).
"Transaction" shall mean (i) the consummation of the Tender
Offer, (ii) the consummation of the Equity Financing, (iii) the
consummation of the Refinancing, (iv) the consummation of the Intercompany
Reorganization (it being understood that the transactions set forth in Item
9 on Schedule XVI will be consummated on February 22, 2000), (v) the
incurrence of the Loans hereunder on the Initial Borrowing Date, (vi) the
payment of fees and expenses in connection with the foregoing and (vii) at
all times after (and at no time prior to) the consummation of the Merger,
the consummation of the Merger.
"Transaction Documents" shall mean the Tender Offer
Documents, the documents governing the Equity Financing, the documents
governing the Refinancing, the documents governing the Intercompany
Reorganization and the Merger Documents.
"Type" shall mean the type of Dollar Loan determined with
regard to the interest option applicable thereto, i.e., whether a Base Rate
Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the value of the accumulated plan benefits under
the Plan determined on a plan termination basis in accordance with
actuarial assumptions at such time consistent with those prescribed by the
PBGC for purposes of Section 4044 of ERISA, exceeds the fair market value
of all plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions).
"Unit Purchase Agreement" shall mean the Unit Purchase
Agreement, dated as of November 29, 1999, by and between Vestar and Torque.
"United States" and "U.S." shall each mean the United States
of America.
"Units" shall mean the Class A Units authorized and issued
by Torque.
"Unpaid Drawing" shall have the meaning provided for in
Section 2.04(a).
"Unrecovered Amount" shall mean, with respect to any
investment, loan or advance at any time, the principal cost of such
investment, loan or advance less (i) any return of capital with respect
thereto and (ii) the net cash proceeds of any sale of all or any part
thereof; provided that the "Unrecovered Amount" of any investment, loan or
advance shall not be less than zero.
"Unutilized Commitment" with respect to any Bank at any time
shall mean (i) the sum of (x) such Bank's Tranche 1 Revolving Loan
Commitment at such time, if any, and (y) such Bank's Tranche 2 Revolving
Loan Commitment at such time, if any, less (ii) the sum of (w) the
aggregate outstanding Principal Amount of all Tranche 1 Revolving Loans
made by such Bank, (x) such Bank's Tranche 1 Revolving Percentage of the
Tranche 1 Letter of Credit Outstandings, (y) the aggregate outstanding
Principal Amount of all Tranche 2 Revolving Loans made by such Bank and (z)
such Bank's Tranche 2 Revolving Percentage of the Tranche 2 Letter of
Credit Outstandings, plus (iii) the Unutilized Term Loan Commitment of such
Bank at such time.
"Unutilized Term Loan Commitment" with respect to any Bank
at any time shall mean the sum of (i) the Tranche A-2 Term Loan Commitment
of such Bank, if any, plus the Tranche A-3 Term Loan Commitment of such
Bank, if any, plus the Tranche B-2 Term Loan Commitment of such Bank, if
any, and (ii) at any time from and after the Effective Date but prior to
the incurrence of A-1 Term Loans and B-1 Term Loans on the Initial
Borrowing Date, the portion of the Tranche A-1 Term Loan Commitment and the
B-1 Term Loan Commitment of such Bank available to be incurred on the
Initial Borrowing Date pursuant to Section 1.01.
"VCP IV" shall mean Vestar Capital Partners IV, L.P.
"Vestar Management Agreement" shall mean the Management
Agreement, to be entered into at or prior to the consummation of the Merger
substantially in the form previously furnished to the Administrative Agent
and filed with the SEC between Holdings and Vestar Capital Partners.
"Waivable Repayment" shall have the meaning provided in
Section 4.02(l).
"Warrants" shall mean the warrants issued to acquire the
shares of the Holdings Common Stock pursuant to the terms of Merger
Agreement.
"Wholly-Owned Domestic Subsidiary" shall mean any Domestic
Subsidiary of the Borrowers that is a Wholly-Owned Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean any Foreign
Subsidiary of the Borrowers that is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock or other equity interests
(other than (a) director's qualifying shares and (b) any other shares of
equity interests of a Foreign Subsidiary of the Borrowers (not to exceed 5%
of such Foreign Subsidiary's total equity interests (determined on a fully
diluted basis) required by law to be issued to Persons other than the
Borrowers and its Wholly-Owned Subsidiaries)) is at the time owned by such
Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii)
any partnership, limited liability company, association, joint venture or
other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time (other
than a portion of such equity interest of any Foreign Subsidiary (not to
exceed 5% of such Foreign Subsidiary's total equity interest (determined on
a fully diluted basis) required by law to be issued to Persons other than
the Borrowers and their Wholly-Owned Subsidiaries).
"Year 2000 Compliant" shall have the meaning provided in
Section 6.27.
SECTION 11. The Administrative Agent.
11.01 Appointment. The Banks hereby designate BTCo as the
Administrative Agent (for purposes of this Section 11, the term
"Administrative Agent" shall include BTCo in its capacity as Administrative
Agent and as Collateral Agent pursuant to the Security Documents and any
Lending Affiliate of BTCo performing any of the duties or functions of the
Administrative Agent hereunder or under any other Credit Document) to act
as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Administrative
Agent to take such action on its behalf under the provisions of this
Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof
and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through
its respective officers, directors, agents, employees or affiliates.
11.02 Nature of Duties. The Administrative Agent shall not
have any duties or responsibilities except those expressly set forth in
this Agreement and in the other Credit Documents. Neither the
Administrative Agent nor any of its respective officers, directors, agents,
employees or affiliates shall be liable for any action taken or omitted by
it or them hereunder or under any other Credit Document or in connection
herewith or therewith, unless caused by its or their gross negligence or
willful misconduct. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the Administrative Agent shall not
have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing
in this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative
Agent any obligations in respect of this Agreement or any other Credit
Document except as expressly set forth herein or therein.
11.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank
and the holder of each Note, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of Holdings and its Subsidiaries in
connection with the making and the continuance of the Loans and the taking
or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of Holdings and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent
shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note 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. The Administrative Agent shall not be responsible to any Bank
or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other
Credit Document or the financial condition of Holdings and its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement
or any other Credit Document, or the financial condition of Holdings and
its Subsidiaries or the existence or possible existence of any Default or
Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks
with respect to any act or action (including failure to act) in connection
with this Agreement or any other Credit Document, the Administrative Agent
shall be entitled to refrain from such act or taking such action unless and
until the Administrative Agent shall have received instructions from the
Required Banks; and the Administrative Agent shall not incur liability to
any Bank or the holder of any Note by reason of so refraining. Without
limiting the foregoing, no Bank or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed
to be the proper Person, and, with respect to all legal matters pertaining
to this Agreement and any other Credit Document and its duties hereunder
and thereunder, upon advice of counsel selected by the Administrative
Agent.
11.06 Indemnification. (a) To the extent the Administrative
Agent is not reimbursed and indemnified by Holdings and the Borrowers, the
Banks will reimburse and indemnify the Administrative Agent, in proportion
to their respective "percentages" as used in determining the Required Banks
(determined as if there were no Defaulting Banks), for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its respective duties hereunder or under any other
Credit Document, in any way relating to or arising out of this Agreement or
any other Credit Document; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent's gross negligence or willful misconduct.
(b) The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Credit
Document (except actions expressly required to be taken by it hereunder or
under the Credit Documents) unless it shall first be indemnified to its
satisfaction by the Banks pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any
such action.
11.07 The Administrative Agent in its Individual Capacity.
With respect to its obligation to make Loans under this Agreement, the
Administrative Agent in its individual capacity shall have the rights and
powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and
the term "Banks," "Required Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent
in its individual capacity may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any
Credit Party or any Affiliate of any Credit Party as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Borrowers or any other Credit Party for services in
connection with this Agreement and otherwise without having to account for
the same to the Banks.
11.08 Holders. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment, transfer or endorsement
thereof, as the case may be, shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of
any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of
any Note or Notes issued in exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Credit Documents at any time by
giving 15 Business Days' prior written notice to the Borrowers and the
Banks. Such resignation shall take effect upon the appointment of a
successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks
shall appoint a successor Administrative Agent hereunder and under the
other Credit Documents who shall be a Bank, a commercial bank or a trust
company in each case reasonably acceptable to the Borrowers.
(c) If a successor Administrative Agent shall not have been
so appointed within such 15 Business Day period, the Administrative Agent,
with the consent of the Borrowers, shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent hereunder and
under the other Credit Documents until such time, if any, as the Required
Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Banks
shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any of the Credit Document until such time, if any,
as the Required Banks appoint a successor Administrative Agent as provided
above.
11.10 Documentation Agent; Syndication Agent. Nothing in
this Agreement shall impose on the Documentation Agent or the Syndication
Agent, in each case in such capacity, any duties or obligations.
SECTION 12. Holdings Guaranty.
12.01 The Guaranty. In order to induce the Administrative
Agent, the Issuing Banks and the Banks to enter into this Agreement and to
extend credit hereunder and in recognition of the direct benefits to be
received by Holdings from the proceeds of the Loans and the issuance of the
Letters of Credit, Holdings hereby agrees with the Banks as follows:
Holdings hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due,
whether upon maturity, by acceleration or otherwise, of any and all
indebtedness of the Borrowers to the Guaranteed Creditors under this
Agreement and the other Credit Documents and all Interest Rate Protection
Agreement or Other Hedging Agreements entered into by a Guaranteed Creditor
or a Lending Affiliate of a Guaranteed Creditor. If any or all of the
indebtedness of the Borrowers to the Guaranteed Creditors becomes due and
payable hereunder or under such other Credit Documents or Interest Rate
Protection Agreement or Other Hedging Agreements, Holdings unconditionally
promises to pay such indebtedness to the Banks, on demand, together with
any and all reasonable out-of-pocket expenses which may be incurred by the
Administrative Agent or the Banks in collecting any of the indebtedness.
The word "indebtedness" is used in this Section 12 in its most
comprehensive sense and means any and all advances, debts, obligations and
liabilities of the Borrowers arising in connection with this Agreement or
any other Credit Documents or under any Interest Rate Protection Agreement
or Other Hedging Agreement with a Guaranteed Creditor or a Lending
Affiliate of a Guaranteed Creditor, in each case, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether or not such indebtedness is from time to time
reduced, or extinguished and thereafter increased or incurred, whether the
Borrowers may be liable individually or jointly with others, whether or not
recovery upon such indebtedness may be or hereafter become barred by any
statute of limitations, and whether or not such indebtedness may be or
hereafter become otherwise unenforceable.
12.02 Bankruptcy. Additionally, Holdings unconditionally and
irrevocably guarantees the payment of any and all indebtedness of the
Borrowers to the Guaranteed Creditors whether or not due or payable by the
Borrowers upon the occurrence of any of the events specified in Section
9.05, and unconditionally and irrevocably promises to pay such indebtedness
to the Guaranteed Creditors, or order, on demand, in the respective
Approved Currency.
12.03 Nature of Liability. The liability of Holdings
hereunder is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrowers whether executed by Holdings,
any other guarantor or by any other party, and the liability of Holdings
hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrowers 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 indebtedness of the Borrowers, 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 the Borrowers, or (e) any payment made to any
Guaranteed Creditor on the indebtedness which such Guaranteed Creditor
repays to the Borrowers pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding,
and Holdings waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
12.04 Guaranty Absolute. No invalidity, irregularity or
unenforceability of all or any part of the indebtedness guaranteed hereby
or of any security therefor shall affect, impair or be a defense to this
Guaranty, and this Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of a
surety or guarantor except payment in full of the indebtedness guaranteed
herein.
12.05 Independent Obligation. The obligations of Holdings
hereunder are independent of the obligations of any other guarantor or any
Borrower, and a separate action or actions may be brought and prosecuted
against Holdings whether or not action is brought against any other
guarantor or any Borrower and whether or not any other guarantor or any
Borrower be joined in any such action or actions. Holdings waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment
by any Borrower or other circumstance which operates to toll any statute of
limitations as to such Borrower shall operate to toll the statute of
limitations as to Holdings.
12.06 Authorization. Holdings authorizes the Guaranteed
Creditors without notice or demand, 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 indebtedness (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 Guaranty herein made
shall apply to the indebtedness as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the
indebtedness 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 indebtedness 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
any Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, any Borrower or other obligors;
(e) settle or compromise any of the indebtedness, 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 the payment of any
liability (whether due or not) of any Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of any Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of Holdings or the Borrowers
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 Holdings from its liabilities under this Section 12.
12.07 Reliance. It is not necessary for any Guaranteed
Creditors to inquire into the capacity or powers of the Borrowers or their
Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
12.08 Subordination. Any indebtedness of any Borrower now or
hereafter held by Holdings is hereby subordinated to the indebtedness of
such Borrower to the Administrative Agent and the Banks; and such
indebtedness of the Borrowers to Holdings, if the Administrative Agent (at
the direction of the Required Banks), after an Event of Default has
occurred, so requests, shall be collected, enforced and received by
Holdings as trustee for the Guaranteed Creditors and be paid over to the
Guaranteed Creditors on account of the indebtedness of such Borrower to the
Guaranteed Creditors, but without affecting or impairing in any manner the
liability of Holdings under the other provisions of this Guaranty. Prior to
the transfer by Holdings of any note or negotiable instrument evidencing
any indebtedness of any Borrower to Holdings, Holdings shall mark such note
or negotiable instrument with a legend that the same is subject to this
subordination.
12.09 Waivers. (a) Holdings waives any right to require any
Guaranteed Creditors to (i) proceed against any Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security
held from any Borrower, any other guarantor or any other party or (iii)
pursue any other remedy in any Guaranteed Creditor's power whatsoever.
Holdings waives any defense based on or arising out of any defense of any
Borrower, any other guarantor or any other party other than payment in full
of the indebtedness, including, without limitation, any defense based on or
arising out of the disability of any Borrower, any other guarantor or any
other party, or the unenforceability of the indebtedness or any part
thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than to the extent of payment in full of the
indebtedness. The Guaranteed Creditors may, in accordance with the Credit
Documents, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or any other Guaranteed
Creditors 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 Guaranteed Creditors may have against any Borrower or any other
party, or any security, without affecting or impairing in any way the
liability of Holdings hereunder except to the extent the indebtedness has
been paid. Holdings waives any defense arising out of any such election by
the Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of Holdings against any Borrower or any other party or any security.
(b) Except as otherwise specifically required hereunder,
Holdings waives all presentments, demands for performance, protests and
notices, including, without limitation, notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Holdings assumes all responsibility for being and keeping
itself informed of each Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of non-payment of the
indebtedness and the nature, scope and extent of the risks which Holdings
assumes and incurs hereunder, and agrees that the Guaranteed Creditors
shall have no duty to advise Holdings of information known to them
regarding such circumstances or risks.
Holdings warrants and agrees that each of the waivers set
forth above in this Section 12.09 is made with full knowledge of its
significance and consequences and that if any of such waivers are
determined to be contrary to any applicable law or public policy, such
waivers shall be effective only to the maximum extent permitted by law.
12.10 Guaranty Continuing. This 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. No
failure or delay on the part of any Guaranteed Creditors in exercising any
right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or
remedies which any Guaranteed Creditors or any subsequent holder of a Note,
or issuer of, or participant in, a Letter of Credit would otherwise have.
No notice to or demand on Holdings in any case shall entitle Holdings to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Guaranteed Creditors or any
holder, creator or purchaser to any other or further action in any
circumstances without notice or demand.
12.11 Binding Nature of Guaranties. This Guaranty shall be
binding upon Holdings and its successors and assigns and shall inure to the
benefit of the Guaranteed Creditors and their successors and assigns.
12.12 Judgments Binding. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the indebtedness and such
Guaranteed Creditor repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b) any settlement
or compromise of any such claim effected by such Guaranteed Creditor with
any such claimant (including any Borrower) then and in such event Holdings
agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon Holdings, notwithstanding any revocation hereof or
the cancellation of any Note, or other instrument evidencing any liability
of any Borrower, and Holdings shall be and remain liable to the Guaranteed
Creditors 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.
SECTION 13. GWR Guaranty.
13.01 The Guaranty. In order to induce the Administrative
Agent, the Issuing Banks and the Banks to enter into this Agreement and to
extend credit hereunder and in recognition of the direct benefits to be
received by GWR from the proceeds of the Loans and the issuance of the
Letters of Credit, GWR hereby agrees with the Banks as follows: GWR hereby
unconditionally and irrevocably guarantees as primary obligor and not
merely as surety the full and prompt payment when due, whether upon
maturity, by acceleration or otherwise, of any and all indebtedness of the
Borrowers (other than GWR) to the Guaranteed Creditors under this Agreement
and the other Credit Documents and all Interest Rate Protection Agreement
or Other Hedging Agreements entered into by a Guaranteed Creditor or a
Lending Affiliate of a Guaranteed Creditor. If any or all of the
indebtedness of the Borrowers (other than GWR) to the Guaranteed Creditors
becomes due and payable hereunder or under such other Credit Documents or
Interest Rate Protection Agreement or Other Hedging Agreements, GWR
unconditionally promises to pay such indebtedness to the Banks, on demand,
together with any and all reasonable out-of-pocket expenses which may be
incurred by the Administrative Agent or the Banks in collecting any of the
indebtedness. The word "indebtedness" is used in this Section 13 in its
most comprehensive sense and means any and all advances, debts, obligations
and liabilities of the Borrowers arising in connection with this Agreement
or any other Credit Documents or under any Interest Rate Protection
Agreement or Other Hedging Agreement with a Guaranteed Creditor or a
Lending Affiliate of a Guaranteed Creditor, in each case, heretofore, now,
or hereafter made, incurred or created, whether voluntarily or
involuntarily, absolute or contingent, liquidated or unliquidated,
determined or undetermined, whether or not such indebtedness is from time
to time reduced, or extinguished and thereafter increased or incurred,
whether may be liable individually or jointly with others, whether or not
recovery upon such indebtedness may be or hereafter become barred by any
statute of limitations, and whether or not such indebtedness may be or
hereafter become otherwise unenforceable.
13.02 Bankruptcy. Additionally, GWR unconditionally and
irrevocably guarantees the payment of any and all indebtedness of to the
Guaranteed Creditors whether or not due or payable by upon the occurrence
of any of the events specified in Section 9.05, and unconditionally and
irrevocably promises to pay such indebtedness to the Guaranteed Creditors,
or order, on demand, in the respective Approved Currency.
13.03 Nature of Liability. The liability of GWR hereunder is
exclusive and independent of any security for or other guaranty of the
indebtedness of the Borrowers whether executed by GWR, any other guarantor
or by any other party, and the liability of GWR hereunder shall not be
affected or impaired by (a) any direction as to application of payment by
the Borrowers 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 indebtedness of the Borrowers, 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
the Borrowers, or (e) any payment made to any Guaranteed Creditor on the
indebtedness which such Guaranteed Creditor repays to the pursuant to court
order in any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceeding, and GWR waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.
13.04 Guaranty Absolute. No invalidity, irregularity or
unenforceability of all or any part of the indebtedness guaranteed hereby
or of any security therefor shall affect, impair or be a defense to this
Guaranty, and this Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of a
surety or guarantor except payment in full of the indebtedness guaranteed
herein.
13.05 Independent Obligation. The obligations of GWR
hereunder are independent of the obligations of any other guarantor or
Borrower, and a separate action or actions may be brought and prosecuted
against GWR whether or not action is brought against any other guarantor or
Borrower and whether or not any other guarantor or Borrower be joined in
any such action or actions. GWR waives, to the fullest extent permitted by
law, the benefit of any statute of limitations affecting its liability
hereunder or the enforcement thereof. Any payment by any Borrower or other
circumstance which operates to toll any statute of limitations as to such
Borrower shall operate to toll the statute of limitations as to GWR.
13.06 Authorization. GWR authorizes the Guaranteed Creditors
without notice or demand, 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 indebtedness (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 Guaranty herein made
shall apply to the indebtedness as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the
indebtedness 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 indebtedness 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
the Borrowers or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
guarantors, Borrowers or other obligors;
(e) settle or compromise any of the indebtedness, 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 the payment of any
liability (whether due or not) of any Borrower to its creditors other than
the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of any Borrower to the Guaranteed Creditors
regardless of what liability or liabilities of the Borrowers 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 GWR from its liabilities under this Section 13.
13.07 Reliance. It is not necessary for any Guaranteed
Creditors to inquire into the capacity or powers of the Borrowers or their
Subsidiaries or the officers, directors, partners or agents acting or
purporting to act on their behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
13.08 Subordination. Any indebtedness of the Borrowers
(other than GWR) now or hereafter held by GWR is hereby subordinated to the
indebtedness of such Borrowers to the Administrative Agent and the Banks;
and such indebtedness of the Borrowers (other than GWR) to GWR, if the
Administrative Agent (at the direction of the Required Banks), after an
Event of Default has occurred, so requests, shall be collected, enforced
and received by GWR as trustee for the Guaranteed Creditors and be paid
over to the Guaranteed Creditors on account of the indebtedness of the
Borrowers to the Guaranteed Creditors, but without affecting or impairing
in any manner the liability of GWR under the other provisions of this
Guaranty. Prior to the transfer by GWR of any note or negotiable instrument
evidencing any indebtedness of the Borrowers (other than GWR) to GWR, GWR
shall mark such note or negotiable instrument with a legend that the same
is subject to this subordination.
13.09 Waivers. (a) GWR waives any right to require any
Guaranteed Creditors to (i) proceed against any Borrower, any other
guarantor or any other party, (ii) proceed against or exhaust any security
held from any Borrower, any other guarantor or any other party or (iii)
pursue any other remedy in any Guaranteed Creditor's power whatsoever. GWR
waives any defense based on or arising out of any defense of any Borrower,
any other guarantor or any other party other than payment in full of the
indebtedness, including, without limitation, any defense based on or
arising out of the disability of any Borrower, any other guarantor or any
other party, or the unenforceability of the indebtedness or any part
thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than to the extent of payment in full of the
indebtedness. The Guaranteed Creditors may, in accordance with the Credit
Documents, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or any other Guaranteed
Creditors 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 Guaranteed Creditors may have against any Borrower or any other
party, or any security, without affecting or impairing in any way the
liability of GWR hereunder except to the extent the indebtedness has been
paid. GWR waives any defense arising out of any such election by the
Guaranteed Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of GWR against any Borrower or any other party or any security.
(b) Except as otherwise specifically required hereunder, GWR
waives all presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance, notices of
protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. GWR assumes all responsibility for being and keeping itself
informed of each Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of non-payment of the
indebtedness and the nature, scope and extent of the risks which GWR
assumes and incurs hereunder, and agrees that the Guaranteed Creditors
shall have no duty to advise GWR of information known to them regarding
such circumstances or risks.
GWR warrants and agrees that each of the waivers set forth
above in this Section 13.09 is made with full knowledge of its significance
and consequences and that if any of such waivers are determined to be
contrary to any applicable law or public policy, such waivers shall be
effective only to the maximum extent permitted by law.
13.10 Guaranty Continuing. This 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. No
failure or delay on the part of any Guaranteed Creditors in exercising any
right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or
remedies which any Guaranteed Creditors or any subsequent holder of a Note,
or issuer of, or participant in, a Letter of Credit would otherwise have.
No notice to or demand on GWR in any case shall entitle GWR to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Guaranteed Creditors or any holder, creator or
purchaser to any other or further action in any circumstances without
notice or demand.
13.11 Binding Nature of Guaranties. This Guaranty shall be
binding upon GWR and its successors and assigns and shall inure to the
benefit of the Guaranteed Creditors and their successors and assigns.
13.12 Judgments Binding. If claim is ever made upon any
Guaranteed Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the indebtedness and such
Guaranteed Creditor repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b) any settlement
or compromise of any such claim effected by such Guaranteed Creditor with
any such claimant (including the Borrowers) then and in such event GWR
agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon GWR, notwithstanding any revocation hereof or the
cancellation of any Note, or other instrument evidencing any liability of
the Borrowers, and GWR shall be and remain liable to the Guaranteed
Creditors 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.
SECTION 14. Miscellaneous.
14.01 Payment of Expenses, etc. Each of Holdings and the
Borrowers, jointly and severally, agree to: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the (A) Administrative Agent (for
purposes of this Section 14.01, the term "Administrative Agent" shall
include BTCo in its capacity as Collateral Agent pursuant to the Security
Documents) (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
and (B) Administrative Agent (including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent) in
connection with any amendment, waiver or consent relating hereto or
thereto, and the determination of compliance or non-compliance by Holdings
and its Subsidiaries with the provisions hereof or thereof, including,
without limitation, with respect to Permitted Acquisitions, (C)
Administrative Agent in connection with its syndication efforts with
respect to this Agreement (including, without limitation, the reasonable
fees and disbursements of White & Case LLP) and (D) Administrative Agent,
each Issuing Bank and each of the Banks in connection with the enforcement
of this Agreement and the other Credit Documents and the documents and
instruments referred to herein and therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Administrative
Agent and for each of the Banks); (ii) pay and hold each of the Banks
harmless from and against any and all present and future stamp, excise and
other similar taxes with respect to the execution, delivery or enforcement
of this Agreement or any other Credit Document or any document or
instrument referred to therein or herein and save each of the Banks
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to such Bank) to pay such taxes; and (iii) defend, protect, indemnify and
hold harmless the Administrative Agent, each Issuing Bank, each Bank and
each of their respective Affiliates, and each of their respective officers,
directors, employees, representatives, attorneys and Administrative Agents
(collectively called the "Indemnitees") from and against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages (including foreseeable and unforeseeable consequential damages and
punitive damages), penalties, claims, actions, judgments, suits, reasonable
out-of-pocket costs, expenses and disbursements (including reasonable
attorneys' and consultants fees and disbursements) of any kind or nature
whatsoever that may at any time be incurred by, imposed on or assessed
against the Indemnitees directly or indirectly based on, or arising or
resulting from, or in any way related to, or by reason of (a) any
investigation, litigation or other proceeding (whether or not the
Administrative Agent, the Collateral Agent or any Bank is a party thereto
and whether or not any such investigation, litigation or other proceeding
is between or among the Administrative Agent, the Collateral Agent, any
Bank, any Borrower or any third person or otherwise) related to the
entering into and/or performance of this Agreement or any other Credit
Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein
(including, without limitation, the Transaction) or in any other Credit
Document or the exercise of any of their rights or remedies provided herein
or in the other Credit Documents; (b) any non-compliance of any
Environmental Law relating to any Real Property at any time owned or
operated by Holdings or any of its Subsidiaries; (c) the actual or alleged
generation, presence or Release of Hazardous Materials on or from, or the
transportation of Hazardous Materials to or from, any Real Property owned
or at any time operated by Holdings or any of its Subsidiaries; (d) any
Environmental Claim relating to Holdings or any of its Subsidiaries or any
Real Property owned or at any time operated by Holdings or any of its
Subsidiaries; (e) the exercise of the rights of the Administrative Agent
and of any Bank under any of the provisions of this Agreement or any other
Credit Document or any Letter of Credit or any Loans hereunder; or (f) the
consummation of any transaction contemplated herein (including, without
limitation, the Transaction) or in any other Credit Document (clauses (a)
through (f), collectively, the "Indemnified Matters") regardless of when
such Indemnified Matter arises; but excluding any such Indemnified Matter
to the extent based on the gross negligence or willful misconduct of any
Indemnitee.
14.02 Right of Setoff. (a) In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Bank is hereby authorized at any
time or from time to time, without presentment, demand, protest or other
notice of any kind to any Credit Party or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness
at any time held or owing by such Bank (including, without limitation, by
branches and agencies of such Bank wherever located) to or for the credit
or the account of each Credit Party against and on account of the
Obligations and liabilities of such Credit Party to such Bank under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 14.06(b), and all other claims of any nature or description arising
out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
(b) Notwithstanding the foregoing subsection (a), at any
time that the Loans or any other Obligation shall be secured by real
property located in California, no Bank or the Administrative Agent shall
exercise a right of setoff, lien or counterclaim or take any court or
administrative action or institute any proceeding to enforce any provision
of this Agreement or any Note unless it is taken with the consent of the
Required Banks or, to the extent required by Section 14.12 of this
Agreement, all of the Banks, or approved in writing by the Administrative
Agent, if such setoff or action or proceeding would or might (pursuant to
California Code of Civil Procedure Sections 580a, 580b, 580d and 726 of the
California Code of Civil Procedure or Section 2924 of the California Civil
Code, if applicable, or otherwise) affect or impair the validity, priority,
or enforceability of the Liens granted to the Collateral Agent pursuant to
the Security Documents or the enforceability of the Notes and other
obligations hereunder, and any attempted exercise by any Bank or the
Administrative Agent of any such right without obtaining such consent of
the Required Banks or the Administrative Agent shall be null and void. This
subsection (b) shall be solely for the benefit of each of the Banks and the
Administrative Agent hereunder.
14.03 Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall
be in writing (including facsimile communication) and mailed, telecopied or
delivered: if to Holdings or any Borrower, at its address specified
opposite its signature below; if to any Bank, at its address specified on
Schedule II; and if to the Administrative Agent, at its Notice Office; or,
as to any Credit Party or the Administrative Agent, at such other address
as shall be designated by such party in a written notice to the other
parties hereto and, as to each Bank, at such other address as shall be
designated by such Bank in a written notice to each Borrower and the
Administrative Agent. All such notices and communications shall, when
mailed, facsimiled or sent by overnight courier, be effective three
Business Days after deposited in the mails, certified, return receipt
requested, one day following delivery to an overnight courier, as the case
may be, or when sent by facsimile device, except that notices and
communications to the Administrative Agent shall not be effective until
received by the Administrative Agent.
14.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto; provided, however,
no Credit Party may assign or transfer any of its rights, obligations or
interest hereunder or under any other Credit Document without the prior
written consent of all of the Banks; and provided further, that although
any Bank may grant participations in its rights hereunder, such Bank shall
remain a "Bank" for all purposes hereunder (and may not transfer or assign
all or any portion of its Commitments or Loans hereunder except as provided
in Section 14.04(b)) and the participant shall not constitute a "Bank"
hereunder; and provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document
except to the extent such amendment or waiver would (i) extend the final
scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date)
in which such participant is participating, or reduce the rate or extend
the time of payment of interest or Fees thereon (except in connection with
a waiver of applicability of any post-default increase in interest rates)
or reduce the principal amount thereof, or increase the Commitments in
which such participant is participating over the amount thereof then in
effect (it being understood that a waiver of any conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment or of a mandatory prepayment shall not constitute an
increase of the Commitment in which any participant is participating, that
an increase in the available portion of any Commitment of any Bank shall
not constitute an increase in the Commitment in which any participant is
participating, and that an increase in any Commitment shall be permitted
without the consent of any participant if the participant's participation
is not increased as a result thereof), (ii) consent to the assignment or
transfer by any Credit Party of any of its rights and obligations under
this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (in each case except as expressly
provided in the Credit Documents), or any Guarantor or Guaranty (in each
case except as expressly provided in the relevant Credit Documents)
supporting the Loans hereunder in which such participant is participating.
In the case of any such participation, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrowers
hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of
its (and related outstanding Obligations hereunder) and/or its outstanding
Term Loans to (i) its parent company and/or any Lending Affiliate of such
Bank or to one or more Banks or (ii) in the case of any Bank 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 of such Bank or by a Lending
Affiliate of such investment advisor or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank or assigning Banks, of such Commitment (and related
outstanding Obligations hereunder) and/or outstanding principal amount of
Term Loans to one or more Eligible Transferees (treating (x) any fund that
invests in bank loans and (y) any other fund that invests in bank loans and
is managed by the same investment advisor as such fund or by a Lending
Affiliate of such investment advisor, as a single Eligible Transferee),
each of which assignees shall become a party to this Agreement as a Bank by
execution of an Assignment and Assumption Agreement substantially in the
form of Exhibit L, provided that (i) no Bank may assign all or any part of
its Tranche 2 Revolving Loan Commitment and/or its A-2 Term Loans, B-2 Term
Loans or Tranche 2 Revolving Loans except to an institution organized under
the laws of the Federal Republic of Germany or an institution not organized
under the laws of the Federal Republic of Germany which shall fund such
Loans from a branch in the Federal Republic of Germany, (ii) at such time
Schedule I shall be deemed modified to reflect the Commitment and/or
outstanding Term Loans, as the case may be, of such new Bank and of the
existing Banks, (iii) if requested by the assigning Bank or the assignee
Bank, upon surrender of the old Notes (with the old Notes of the assigning
Bank to be marked "Canceled") (or the furnishing of a standard indemnity
letter from the respective assigning Bank in respect of any lost Notes
reasonably acceptable to Holdings), new Notes will be issued, at the
applicable Borrower's expense, to such new Bank and to the assigning Bank,
such new Notes to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the
revised Commitments and/or outstanding Term Loans, as the case may be, (iv)
the consent of the Administrative Agent and, so long as no Event of Default
exists, the Borrowers shall be required in connection with any assignment
to an Eligible Transferee pursuant to clause (y) of this Section 14.04(b)
(which consent, in each case, shall not be unreasonably withheld or
delayed), (v) the consent of each Issuing Bank shall be required in
connection with any assignment of Tranche 1 Revolving Loan Commitments or
Tranche 2 Revolving Loan Commitments pursuant to clause (y) of this Section
14.04(b) (which consent shall not be unreasonably withheld or delayed) and
(vi) the Administrative Agent shall receive at the time of each assignment,
from the assigning or assignee Bank, the payment of a non- refundable
assignment fee of $3,500 and, provided further, that such transfer or
assignment will not be effective until recorded by the Administrative Agent
on the Register pursuant to Section 14.14. To the extent of any assignment
pursuant to this Section 14.04(b), the assigning Bank shall be relieved of
its obligations hereunder with respect to its assigned Commitments and/or
outstanding Term Loans. At the time of each assignment pursuant to this
Section 14.04(b) to a Person which is not already a Bank hereunder, the
respective assignee Bank shall provide to the Borrowers and the
Administrative Agent the appropriate Internal Revenue Service Forms (and,
if applicable, a Section 4.04(b)(ii) Certificate) described in Section
4.04(b). To the extent that an assignment of all or any portion of a Bank's
Tranche 1 Revolving Loan Commitments, Tranche 2 Revolving Loan Commitment
and outstanding Obligations pursuant to Section 1.13 or this Section
14.04(b) would, due to circumstances existing at the time of such
assignment, result in increased costs under Section 1.10, 1.11, 2.05 or
4.04 from those being charged by the respective assigning Bank prior to
such assignment, then the Borrowers shall not be obligated to pay such
increased costs (although the Borrowers shall be obligated to pay any other
increased costs of the type described above resulting from changes after
the date of the respective assignment). Notwithstanding anything to the
contrary contained above, at any time after the termination of the Total
Revolving Loan Commitment, if any Revolving Loans or Letters of Credit
remain outstanding, assignments may be made as provided above, except that
the respective assignment shall be of a portion of the outstanding Tranche
1 Revolving Loans or Tranche 2 Revolving Loans of the respective Tranche 1
RC Bank or Tranche 2 RC Bank, as the case may be.
(c) Nothing in this Agreement shall prevent or prohibit any
Bank or BTCo from pledging its Loans and Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank and, with the consent of the Administrative Agent, any Bank
which is a fund may pledge all or any portion of its Notes or Loans to its
trustee in support of its obligations to its trustee. No pledge pursuant to
this clause (c) shall release the transferor Bank from any of its
obligations hereunder.
14.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of any Note
in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between Holdings or the Borrowers
or any other Credit Party and the Administrative Agent or any Bank or the
holder of any Note shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights, powers and remedies herein or in any other Credit Document
expressly provided are cumulative and not exclusive of any rights, powers
or remedies which the Administrative Agent or any Bank or the holder of any
Note would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or any Bank or the holder of any Note to
any other or further action in any circumstances without notice or demand.
14.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of any
Borrower in respect of any Obligations hereunder, it shall distribute such
payment to the Banks pro rata based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Unpaid Drawings, Commitment Fees
or other Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such
Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for
cash without recourse or warranty from the other Banks an interest in the
Obligations of the respective Credit Party to such Banks in such amount as
shall result in a proportional participation by all the Banks in such
amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
14.07 Calculations; Computations. (a) The financial
statements to be furnished to the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by
Holdings or the Borrowers to the Banks; it being understood and agreed that
notes may be absent in the interim financial statements). In addition,
except as otherwise specifically provided herein, all computations
determining compliance with Sections 4.02 and 8, including definitions used
therein, shall utilize accounting principles and policies in effect from
time to time; provided that if any such accounting principle or policy
shall change after the Effective Date, the Borrowers shall give prompt
notice thereof to the Administrative Agent and each of the Banks and if
within 90 days following such notice the Borrowers, the Administrative
Agent or the Required Banks shall elect by giving written notice of such
election to the other parties hereto, such computations shall not give
effect to such change unless and until this Agreement shall be amended
pursuant to Section 14.12 to give effect to such change. Notwithstanding
the foregoing, to the extent expressly required pursuant to the provisions
of this Agreement, certain calculations shall be made on a Pro Forma Basis.
(b) All computations of interest and Fees hereunder shall be
made on the basis of a year of 360 days (365-366 days in the case of
interest on (i) Base Rate Loans maintained at the Prime Lending Rate and
(ii) Euro Rate Loans denominated in Pounds Sterling) for the actual number
of days (including the first day but excluding the last day) occurring in
the period for which such interest or Fees are payable.
(c) Except as provided in Section 14.07(d), for purposes of
this Agreement, the Dollar Equivalent of each Loan that is an Alternate
Currency Loan and each Letter of Credit denominated in an Alternate
Currency shall be calculated on the date when any such Loan is made or
Letter of Credit is issued, on the second Business Day of each month and at
such other times as designated by the Administrative Agent at any time when
an Event of Default exists. Such Dollar Equivalent shall remain in effect
until the same is recalculated by the Administrative Agent as provided
above and notice of such recalculation is received by the Borrowers, it
being understood that until such notice is received, the Dollar Equivalent
shall be that Dollar Equivalent as last reported to the Borrowers by the
Administrative Agent. The Administrative Agent shall promptly notify the
Borrowers and the Banks of each such determination of the Dollar
Equivalent.
(d) For purposes of determining (i) each Borrower's
obligation to reimburse in Dollars a Drawing under a Letter of Credit
denominated in an Alternate Currency (and each Participant's obligation to
fund its Participation with respect to any such Letter of Credit) and (ii)
each Borrower's obligation to pay Tranche 1 Letter of Credit Fees, Tranche
2 Letter of Credit Fees and Facing Fees with respect to Letters of Credit
denominated in an Alternate Currency, such determinations shall be made by
converting the amount of the respective Unpaid Drawing or the amount of the
respective Fees, as the case may be, into dollars based on the Dollar
Equivalent thereof on the date on which the Drawing occurs or the
respective Fees are payable.
14.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL,
EXCEPT AS OTHERWISE PROVIDED IN THE MORTGAGES, BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action
or proceeding with respect to this Agreement or any other Credit Document
may be brought in the Courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and
delivery of this agreement, each of Holdings and the Borrowers hereby
irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid Courts. Each Credit
Party hereby further irrevocably waives any claim that such courts lack
jurisdiction over such Credit Party, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Agreement or any other
Credit Document brought in any of the aforesaid courts, that any such court
lacks jurisdiction over such Credit Party. Each of Holdings and each
Borrowers irrevocably consents to the service of process out of any of the
aforementioned Courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to
Holdings or such Borrower at its address set forth opposite its signatures
below, such service to become effective 30 days after such mailing. Nothing
herein shall affect the right of the Administrative Agent under this
Agreement, any Bank or the holder of any Note to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each of Holdings and each Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other credit document brought in the
Courts referred to in clause (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such Court that any such
action or proceeding brought in any such Court has been brought in an
inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement, the other Credit
Documents or the transactions contemplated hereby or thereby.
14.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with Holdings and the Administrative Agent.
14.10 Effectiveness. This Agreement shall become effective
on the date (the "Effective Date") on which Holdings, each Borrower and
each of the Banks shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative
Agent at its Notice Office or, in the case of the Banks, shall have given
to the Administrative Agent telephonic (confirmed in writing), written or
facsimile transmission notice (actually received) in accordance with
Section 14.03 at such office that the same has been signed and mailed to
it.
14.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
14.12 Amendment or Waiver. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party
thereto and the Required Banks; provided that no such change, waiver,
discharge or termination shall, without the consent of each Bank directly
affected thereby: (i) extend the final scheduled maturity of any Loan or
Note or extend the stated maturity of any Letter of Credit or Unpaid
Drawing beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates), or reduce the principal amount thereof; (ii) release all
or substantially all of the Collateral (except as expressly provided in the
relevant Credit Documents) or any Guarantor or Guaranty (in each case
except as expressly provided in the relevant Credit Documents); (iii)
amend, modify or waive any provision of Section 14.06 or this Section
14.12; (iv) reduce the percentage specified in, or otherwise modify, the
definition of Required Banks (it being understood that, with the consent of
the Required Banks, extensions of credit pursuant to this Agreement in
addition to those set forth in or contemplated by this Agreement on the
Effective Date may be included in the determination of the Required Banks
on substantially the same basis as the extensions of Term Loans, Tranche 1
Revolving Loan Commitments and Tranche 2 Revolving Loan Commitments are
included on the Effective Date); or (v) consent to the assignment or
transfer by Holdings or any Borrower of any of its rights and obligations
under this Agreement; provided further, that no such change, waiver,
discharge or termination shall: (1) increase the Commitments of any Bank
over the amount thereof then in effect (it being understood that a waiver
of any conditions precedent, covenants, Defaults or Events of Default or of
a mandatory reduction in the Total Commitment or of a mandatory prepayment
shall not constitute an increase of the Commitment of any Bank, and that an
increase in the available portion of any Commitment of any Bank shall not
constitute an increase in the Commitment of such Bank) without the consent
of such Bank; (2) without the consent of each Issuing Bank, amend, modify
or waive any provision of Section 2 or alter its rights or obligations with
respect to Letters of Credit; (3) without the consent of each Agent, amend,
modify or waive any provision of Section 11 or any other provision relating
to the rights or obligations of such Agent; (4) without the consent of the
Collateral Agent, amend, modify or waive any provision of Section 11 or any
other provision relating to the rights or obligations of the Collateral
Agent; (5) without the consent of the Majority Banks of each Tranche which
is being allocated a lesser prepayment, repayment or commitment reduction
as a result of the actions described below (or without the consent of the
Majority Banks of each Tranche in the case of an amendment to the
definition of Majority Banks), amend the definition of Majority Banks or
alter the required application of any prepayments or repayments (or
commitment reductions), as between the various Tranches, pursuant to
Section 4.01 or 4.02 (excluding Sections 4.02(b) and (c)) (although the
Required Banks may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst
the various Tranches, of any such prepayment, repayment or commitment
reduction which is still required to be made is not altered) or (6) without
the consent of the Majority Banks of the respective Tranche, amend, modify
or waive any Scheduled Repayment of such Tranche.
(b) If, in connection with any proposed change, waiver,
discharge or termination with respect to any of the provisions of this
Agreement as contemplated by clauses (i) through (v), inclusive, of the
first proviso to Section 14.12(a), the consent of the Required Banks is
obtained but the consent of one or more of such other Banks whose consent
is required is not obtained, then the Borrowers shall have the right to
replace each such non-consenting Bank or Banks (so long as all
non-consenting Banks are so replaced) with one or more Replacement Banks
pursuant to Section 1.13 so long as at the time of such replacement, each
Replacement Bank consents to the proposed change, waiver, discharge or
termination, provided that the Borrowers shall not have the right to
replace a Bank solely as a result of the exercise of such Bank's rights
(and the withholding of any required consent by such Bank) pursuant to the
second proviso to Section 14.12(a).
(c) Notwithstanding anything to the contrary contained above
in this Section 14.12, the Collateral Agent may (i) enter into amendments
to the Subsidiary Guaranty and the Security Documents for the purpose of
adding additional Subsidiaries of Holdings (or other Credit Parties) as
parties thereto and (ii) enter into security documents to satisfy the
requirements of Sections 7.11 and 7.14, in each case without the consent of
the Required Banks.
14.13 Confidentiality. (a) Subject to the provisions of
clause (b) of this Section 14.13, each Bank agrees that it will use its
reasonable efforts not to disclose without the prior consent of the
Borrowers (other than to its employees, auditors, advisors or counsel or to
another Bank if such Bank or such Bank's holding or parent company in its
sole discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of
this Section 14.13 to the same extent as such Bank) any information with
respect to Holdings or any of its Subsidiaries which is now or in the
future furnished pursuant to this Agreement or any other Credit Document
and which is designated by the Borrowers to the Banks in writing as
confidential or would customarily be treated as confidential in banking
practice, provided that any Bank may disclose any such information (a) as
has become generally available to the public, (b) as may be required or
appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the
United States or elsewhere) or their successors, (c) as may be required or
appropriate in respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (e) to the Administrative Agent or the
Collateral Agent and (f) to any prospective or actual transferee or
participant (or its investment advisor) in connection with any contemplated
transfer or participation of any of the Notes or Commitments or any
interest therein by such Bank, provided that such prospective transferee
agrees to maintain the confidentiality contained in this Section.
(b) Each of Holdings and the Borrowers hereby acknowledges
and agrees that each Bank may share with any of its Lending Affiliates any
information related to Holdings or any of its Subsidiaries (including,
without limitation, any nonpublic customer information regarding the
creditworthiness of Holdings, the Borrowers and their Subsidiaries,
provided such Persons shall be subject to the provisions of this Section
14.13 to the same extent as such Bank).
14.14 Register. Each Borrower hereby designates the
Administrative Agent to serve as such Borrower's agent, solely for purposes
of this Section 14.14, to maintain a register (the "Register") on which it
will record the Commitments from time to time of each of the Banks, the
Loans made by each of the Banks and each repayment in respect of the
principal amount of the Loans of each Bank. Failure to make any such
recordation, or any error in such recordation, shall not affect the
respective Borrower's obligations in respect of such Loans. With respect to
any Bank, the transfer of the Commitments of such Bank and the rights to
the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership
of such Commitments and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of the assignment or
transfer of all or part of any Commitments and Loans shall be recorded by
the Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 14.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of the assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable,
the assigning or transferor Bank shall surrender the Note evidencing such
Loan, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Bank and/or the new
Bank. Each Borrower jointly and severally agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages
and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties
under this Section 14.14 other than those resulting from the Administrative
Agent's willful misconduct or gross negligence.
14.15 Judgment Currency. (a) Each Borrower's obligations
hereunder and under the other Credit Documents to make payments in the
applicable Approved Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent or the respective Bank of the
full amount of the Obligation Currency expressed to be payable to the
Administrative Agent or such Bank under this Agreement or the other Credit
Documents. If, for the purpose of obtaining or enforcing judgment against
any Borrower in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made at the
Relevant Currency Equivalent, and, in the case of other currencies, the
rate of exchange (as quoted by the Administrative Agent or if the
Administrative Agent does not quote a rate of exchange on such currency, by
a known dealer in such currency designated by the Administrative Agent)
determined, in each case, as of the Business Day immediately preceding the
day on which the judgment is given (such Business Day being hereinafter
referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, each Borrower covenants and agrees to pay, or
cause to be paid, such additional amounts, if any (but in any event not a
lesser amount) as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Obligation Currency which
could have been purchased with the amount of Judgment Currency stipulated
in the judgment or judicial award at the rate of exchange prevailing on the
Judgment Currency Conversion Date.
(c) For purposes of determining the Relevant Currency
Equivalent or any other rate of exchange for this Section, such amounts
shall include any premium and costs payable in connection with the purchase
of the Obligation Currency.
14.16 Euro. (a) If at any time that a Foreign Currency Loan
is outstanding, the relevant Approved Currency is replaced as the lawful
currency of the country that issued such Approved Currency (the "Issuing
Country") by the Euro so that all payments are to be made in the
Issuing Country in Euros and not in the Approved Currency previously the
lawful currency of such country, then such Foreign Currency Loan shall be
automatically converted into a Loan denominated in Euros in a principal
amount equal to the amount of Euros into which the principal amount of such
Foreign Currency Loan would be converted pursuant to the EMU Legislation
and thereafter no further Loans will be available in such Approved
Currency, with the basis of accrual of interest, notices requirements and
payment offices with respect to such converted Loans to be that consistent
with the convention and practices in the Euro-zone interbank market for
Euro denominated loans.
(b) The applicable Borrowers shall from time to time, at the
request of any Bank, pay to such Bank the amount of any losses, damages,
liabilities, claims, reduction in yield, additional expense, increased
cost, reduction in any amount payable, reduction in the effective return of
its capital, the decrease or delay in the payment of interest or any other
return forgone by such Bank or its affiliates as a result of the tax or
currency exchange resulting from the introduction, changeover to or
operation of the Euro in any applicable nation or eurocurrency market.
14.17 Special Provisions Regarding Pledges of Equity
Interests in, and Promissory Notes Owed by, Persons Not Organized in the
United States, Germany and the United Kingdom. The parties hereto
acknowledge and agree that the provisions of the various Security Documents
executed and delivered by the Credit Parties require that, among other
things, all promissory notes executed by, and all (or 65%, as the case may
be) of the capital stock and other equity interests in, various Persons
owned by the respective Credit Party be pledged, and delivered for pledge,
pursuant to the Security Documents. The parties hereto further acknowledge
and agree that each Credit Party shall be required to take all actions
under the laws of the United States, Germany and the United Kingdom (the
"Qualified Jurisdictions"), as applicable, to perfect the security
interests in the capital stock and other equity interests of, and
promissory notes issued by, any Person organized under the laws of said
jurisdictions (in each case, to the extent said capital stock, other equity
interests or promissory notes are owned by any Credit Party). Except as
provided in the immediately preceding sentence, to the extent any Security
Document requires or provides for the pledge of promissory notes issued by,
or capital stock or other equity interests in, any Person organized under
the laws of a jurisdiction other than those specified in the immediately
preceding sentence, it is acknowledged that, as of the Initial Borrowing
Date, no actions have been required to be taken to perfect, under U.S. or
any local law of the jurisdiction of the Person who issued the respective
promissory notes or whose capital stock or other equity interests are
pledged, under the Security Documents. The Credit Parties hereby agree
that, following any request by the Administrative Agent or Required Banks
to do so in respect to any such asset that is material, each Credit
Agreement Party shall, and shall cause its Subsidiaries to, take such
actions (including, without limitation, the making of any filings and the
delivery of appropriate legal opinions) under U.S. law or the local law of
any jurisdiction with respect to which such actions have not already been
taken as are determined by the Administrative Agent or Required Lenders to
be necessary or desirable in order to fully perfect, preserve or protect
the security interests in such assets granted pursuant to the various
Security Documents under the laws of such jurisdictions. If requested to do
so pursuant to this Section 14.17, all such actions shall be taken in
accordance with the provisions of this Section 14.17 as promptly as
practicable. All conditions and representations contained in this Agreement
and the other Credit Documents shall be deemed modified to the extent
necessary to effect the foregoing and so that same are not violated by
reason of the failure to take actions under U.S. or local law (but only
with respect to capital stock of, other equity interests in, and promissory
notes issued by, Persons organized under laws of jurisdictions other than
Qualified Jurisdictions) not required to be taken in accordance with the
provisions of this Section 14.17, provided that to the extent any
representation or warranty would not be true because the foregoing actions
were not taken, the respective representation of warranties shall be
required to be true and correct in all material respects at such time as
the respective action is required to be taken in accordance with the
foregoing provisions of this Section 14.17.
14.18 Representations and Covenants of German Banks. (a)
Each German Bank shall provide to GGH, within the first quarter of each
calendar year, a duly executed German Tax Certificate. The obligation to
provide a German Tax Certificate shall continue until the end of the
calendar year following the year in which all German Loans are repaid in
full and the Total Tranche 2 Revolving Loan Commitment is terminated or, if
earlier, the date on which the German Bank transfers by assignment and
assumption all of its rights, benefits and obligations with respect to all
German Loans under the Credit Documents pursuant to Section 14.04(b).
(b) Each German Bank confirms to GGH that it satisfies the
criteria set out in the German Tax Certificate.
(c) Notwithstanding anything to the contrary contained in
this Agreement (including, without limitation, in Section 1.01, Section
1.12 or in the definition of German Bank), some or all of the German Loans
will be made by, and Letters of Credit may be issued for the account of GGH
by, Deutsche Bank Luxembourg S.A. Deutsche Bank Luxembourg S.A. hereby
covenants and agrees that (i) no later than April 30, 2000 all German Loans
made by it, and its Tranche 2 Revolving Loan Commitment, will be assigned
to one or more lending institutions which satisfy the requirements
contained in the definition of German Bank and this Section 14.18 and (ii)
Letters of Credit issued after April 30, 2000 for the account of GGH, to
the extent issued by any Lending Affiliate of BTCo, shall be issued by a
Lending Affiliate which is a lending institution which satisfies the
requirements contained in the definition of German Bank and this Section
14.18.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Agreement as of the
date first above written.
Address:
- -------
1000 University Avenue GLEASON CORPORATION
P.O. Box 22970
Rochester, NY 14692 /s/Edward J. Pelta
Telephone No.: (716) 473-1000 By:-------------------------
Telecopy No.: (716) 473-1688 Title: Vice President, General
Attention: John J. Perrotti Counsel and Secretary
with a copy to:
Vestar Capital Partners IV, L.P.
245 Park Avenue, 41st Floor
New York, NY 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy
1000 University Avenue GLEASON WORKS
P.O. Box 22970
Rochester, NY 14692
Telephone No.: (716) 473-1000 /s/Edward J. Pelta
Telecopy No.: (716) 473-1688 By:-------------------------
Attention: John J. Perrotti Title: Vice President, General
Counsel and Secretary
with a copy to:
Vestar Capital Partners IV, L.P.
245 Park Avenue, 41st Floor
New York, NY 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy
1000 University Avenue GLEASON GERMANY (HOLDINGS) GmbH
P.O. Box 22970
Rochester, NY 14692
Telephone No.: (716) 473-1000 /s/Eugen Gunther
Telecopy No.: (716) 473-1688 By:-------------------------
Attention: John J. Perrotti Title: Managing Director
with a copy to:
Vestar Capital Partners IV, L.P.
245 Park Avenue, 41st Floor
New York, NY 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy
1000 University Avenue GLEASON WORKS (HOLDINGS) LIMITED
P.O. Box 22970
Rochester, NY 14692
Telephone No.: (716) 473-1000 /s/Edward J. Pelta
Telecopy No.: (716) 473-1688 By:-------------------------
Attention: John J. Perrotti Title: Director and Secretary
with a copy to:
Vestar Capital Partners IV, L.P.
245 Park Avenue, 41st Floor
New York, NY 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy
1000 University Avenue GLEASON INTERNATIONAL MARKETING
P.O. Box 22970 CORPORATION
Rochester, NY 14692
Telephone No.: (716) 473-1000
Telecopy No.: (716) 473-1688 /s/Edward J. Pelta
Attention: John J. Perrotti By:-------------------------
Title: Secretary and Treasurer
with a copy to:
Vestar Capital Partners IV, L.P.
245 Park Avenue, 41st Floor
New York, NY 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
/s/Susan L. LeFevre
By:-------------------------
Title: Director
DEUTSCHE BANK LUXEMBOURG S.A.,
Individually and as Administrative Agent
/s/Michael Groth
By:-------------------------
Title: Managing Director
/s/Christoph Guntzer
By:-------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
Individually and as Syndication Agent
/s/Todd S. Meller
By:-------------------------
Name: Todd S. Meller
Title:Managing Director
FLEET NATIONAL BANK
/s/Thomas J. Flanagan
By:-------------------------
Name: Thomas J. Flanagan
Title:Senior Vice Presiden
FIRST UNION NATIONAL BANK
/s/Andrew Payne
By:-------------------------
Name: Andrew Payne
Title:Vice President
BANK POLSKA KASA OPLEKI S.A.,
New York Branch
/s/Hussein B. El-Tawil
By:-------------------------
Name: Hussein B. El-Tawil
Title: Vice President
MANUFACTURERS & TRADERS TRUST COMPANY
/s/William E. Holston
By:-------------------------
Name: William E. Holston
Title: Vice President
Exhibit 99.2
- ------------------------------------------------------------------------------
CREDIT AGREEMENT
among
TORQUE ACQUISITION CO., L.L.C.,
TORQUE MERGER SUB, INC.,
VARIOUS BANKS,
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT,
LEAD ARRANGER AND BOOK MANAGER
and
THE BANK OF NOVA SCOTIA,
as SYNDICATION AGENT
-------------------------------------------
Dated as of February 17, 2000
-------------------------------------------
$61,500,000
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit.......................................1
1.01 The Commitment...................................................1
1.02 Minimum Amount of Each Borrowing.................................1
1.03 Notice of Borrowing..............................................1
1.04 Disbursement of Funds............................................2
1.05 Notes............................................................3
1.06 Conversions......................................................3
1.07 Pro Rata Borrowings..............................................4
1.08 Interest.........................................................4
1.09 Interest Periods.................................................4
1.10 Increased Costs, Illegality, etc.................................6
1.11 Compensation.....................................................8
1.12 Lending Offices; Changes Thereto.................................8
1.13 Replacement of Banks.............................................9
1.14 Limitations on Additional Amounts, etc..........................10
SECTION 2. Commitment Commission; Fees; Reductions of Commitment...........10
2.01 Fees............................................................10
2.02 Voluntary Termination of Total Commitment.......................10
2.03 Mandatory Reduction of Commitments..............................10
SECTION 3. Prepayments; Payments; Taxes....................................11
3.01 Voluntary Prepayments...........................................11
3.02 Mandatory Repayments............................................11
3.03 Method and Place of Payment.....................................11
3.04 Net Payments; Taxes.............................................12
SECTION 4. Conditions Precedent............................................14
4.01 Execution of Agreement; Notes...................................14
4.02 No Default; Representations and Warranties......................14
4.03 Officer's Certificate...........................................14
4.04 Opinions of Counsel.............................................15
4.05 Corporate Documents; Proceedings................................15
4.06 Pledge Agreement................................................15
4.07 Fees, etc.......................................................15
4.08 Gleason Credit Agreement........................................15
4.09 Assignment of Purchase Rights...................................16
4.10 Equity Financing................................................16
4.11 Notice of Borrowing.............................................16
SECTION 5. Representations and Warranties..................................16
5.01 Status..........................................................16
5.02 Power and Authority.............................................17
5.03 No Violation....................................................17
5.04 Governmental Approvals..........................................17
5.05 Financial Condition.............................................17
5.06 Litigation......................................................18
5.07 True and Complete Disclosure....................................18
5.08 Use of Proceeds; Margin Regulations.............................18
5.09 Pledge Agreement................................................19
5.10 Subsidiaries....................................................19
5.11 Compliance with Statutes, etc...................................19
5.12 Investment Company Act..........................................19
5.13 Public Utility Holding Company Act..............................19
5.14 Special Purpose Corporation.....................................19
5.15 Representations and Warranties in the Gleason Credit
Agreement.......................................................20
SECTION 6. Affirmative Covenants...........................................20
6.01 Information Covenants...........................................20
6.02 Books, Records and Inspections..................................21
6.03 Existence.......................................................21
6.04 Compliance with Statutes, etc...................................21
6.05 Performance of Obligations......................................21
6.06 Ownership of Subsidiaries.......................................21
6.07 Consummation of the Merger......................................21
6.08 Compliance with Covenants in the Gleason Credit Agreement.......22
SECTION 7. Negative Covenants..............................................22
7.01 Liens...........................................................22
7.02 Consolidation, Merger, Sale of Assets, etc......................23
7.03 Dividends.......................................................23
7.04 Indebtedness....................................................23
7.05 Advances, Investments, Loans, Purchase of Assets................23
7.06 Transactions with Affiliates....................................24
7.07 Capital Expenditures............................................24
7.08 Modifications of Certificate of Incorporation, By-Laws and
Certain Agreements; etc.........................................24
7.09 Limitation on Issuance of Equity................................24
7.10 Business........................................................24
7.11 Limitation on the Creation of Subsidiaries......................25
SECTION 8. Events of Default...............................................25
8.01 Payments........................................................25
8.02 Representations, etc............................................25
8.03 Covenants.......................................................25
8.04 Default Under Other Agreements..................................25
8.05 Bankruptcy, etc.................................................26
8.06 Pledge Agreement................................................26
8.07 Judgments.......................................................27
8.08 Gleason Credit Agreement........................................27
8.09 Change of Control...............................................27
SECTION 9. Definitions and Accounting Terms................................27
9.01 Defined Terms...................................................27
SECTION 10. The Administrative Agent........................................38
10.01 Appointment.....................................................38
10.02 Nature of Duties................................................38
10.03 Lack of Reliance on the Administrative Agent....................39
10.04 Certain Rights of the Administrative Agent......................39
10.05 Reliance........................................................39
10.06 Indemnification.................................................39
10.07 The Administrative Agent in its Individual Capacity.............40
10.08 Holders.........................................................40
10.09 Resignation by the Administrative Agent.........................40
10.10 Documentation Agent; Syndication Agent..........................41
SECTION 11. Miscellaneous...................................................41
11.01 Payment of Expenses, etc........................................41
11.02 Right of Setoff.................................................42
11.03 Notices.........................................................42
11.04 Benefit of Agreement............................................43
11.05 No Waiver; Remedies Cumulative..................................45
11.06 Payments Pro Rata...............................................45
11.07 Computations....................................................45
11.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL...................................................45
11.09 Counterparts....................................................46
11.10 Effectiveness...................................................46
11.11 Headings Descriptive............................................47
11.12 Amendment or Waiver.............................................47
11.13 Confidentiality.................................................48
11.14 Register........................................................48
11.15 Termination.....................................................49
11.16 No Recourse.....................................................49
11.17 No Obligations of Parent Following the Merger...................49
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Litigation
SCHEDULE IV Subsidiaries
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Note
EXHIBIT C Form of Section 3.04(b)(ii) Certificate
EXHIBIT D-1 Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT D-2 Form of Opinion of White & Case LLP
EXHIBIT E Form of Officers' Certificate
EXHIBIT F Form of Pledge Agreement
EXHIBIT G Form of Assignment and Assumption Agreement
CREDIT AGREEMENT, dated as of February 17, 2000, among TORQUE
ACQUISITION CO., L.L.C., a Delaware limited liability company ("Parent"),
TORQUE MERGER SUB, INC., a Delaware corporation (the "Borrower"), the Banks
party hereto from time to time, BANKERS TRUST COMPANY, as Administrative
Agent, Lead Arranger and Book Manager, and THE BANK OF NOVA SCOTIA, as
Syndication Agent (the "Syndication Agent") (all capitalized terms used
herein and defined in Section 9 are used herein as therein defined).
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitment. Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees to make on each
Borrowing Date on or prior to the Maturity Date, a term loan or term loans
(each a "Loan" and collectively, the "Loans") to the Borrower, which Loans
shall (i) at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or one or more Borrowings of
Eurodollar Loans having such Interest Periods as are selected by the
Borrower pursuant to Section 1.09, provided that prior to the Syndication
Date, Loans may only be incurred and maintained as or converted into
Eurodollar Loans if the Interest Period in respect of such Eurodollar Loans
is a Pre-Syndication Interest Period, (ii) be made and maintained in
Dollars, (iii) not exceed for any Bank, in aggregate principal amount, that
amount which equals the Commitment of such Bank at the time of incurrence
thereof (before giving effect to any reductions thereto on such date
pursuant to Section 2.03(a)), and (iv) not exceed on the Initial Borrowing
Date an aggregate principal amount equal to $58,526,329.00. Once repaid,
Loans incurred hereunder may not be reborrowed.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing shall not be less than the Minimum Borrowing
Amount. More than one Borrowing may occur on the same date, but at no time
shall there be outstanding more than five Borrowings of Eurodollar Loans
hereunder.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
incur Loans hereunder, it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of each Base Rate Loan, and at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Eurodollar Loan, provided that any such
notice shall be deemed to have been given on a certain day only if given
before 12:00 Noon (New York time) on such day. Each such written notice or
written confirmation of telephonic notice (each a "Notice of Borrowing"),
shall be irrevocable and shall be given by the Borrower in the form of
Exhibit A, appropriately completed to specify (i) the date of such
incurrence (which shall be a Business Day), (ii) the aggregate principal
amount of the Loans to be made and (iii) whether such Loans being made are
to be initially maintained as Base Rate Loans or Eurodollar Loans. The
Administrative Agent shall promptly (and in any event within one Business
Day after its receipt of a Notice of Borrowing) give each Bank notice of
such proposed incurrence, of such Bank's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of any incurrence of Loans, the
Administrative Agent may act without liability upon the basis of telephonic
notice, believed by the Administrative Agent in good faith to be from an
Authorized Officer of the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's record of the terms of such telephonic
notice, absent manifest error.
1.04 Disbursement of Funds. No later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing, each Bank will
make available its pro rata portion of each Borrowing of Loans requested to
be made on such date, in Dollars and in immediately available funds at the
Payment Office of the Administrative Agent. The Administrative Agent will
make available to the Borrower at the Payment Office in Dollars and in
immediately available funds, the aggregate of the amounts so made available
by the Banks prior to 2:00 P.M. (New York time) on such day, to the extent
of funds actually received by the Administrative Agent. Unless the
Administrative Agent shall have been notified by any Bank prior to the date
of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on
such date, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on such date of Borrowing and
the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such
Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
the Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from
such Bank, the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or
to prejudice any rights which the Borrower may have against any Bank as a
result of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) At the request of any Bank, the Borrower's
obligation to pay the principal of, and interest on, the Loans made by such
Bank to the Borrower shall be evidenced by a promissory note duly executed
and delivered by the Borrower substantially in the form of Exhibit B with
blanks appropriately completed in conformity herewith (each a "Note" and,
collectively, the "Notes").
(b) The Note issued by the Borrower to any Bank shall (i) be
executed by the Borrower, (ii) be payable to the order of such Bank and be
dated the date of issuance, (iii) be in a stated principal amount equal to
the sum of the Commitment of such Bank, plus the outstanding Loans of such
Bank at such time, (iv) mature on the Maturity Date, (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base
Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary prepayment as provided in Section 3.01 and
(vii) be entitled to the benefits of this Agreement and be secured by the
Pledge Agreement.
(c) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation shall not affect the Borrower's obligations in respect of
such Loans.
1.06 Conversions. The Borrower shall have the option to convert
on any Business Day all or a portion equal to at least the applicable
Minimum Borrowing Amount of the outstanding principal amount of the Loans
made to the Borrower pursuant to one or more Borrowings of one or more
Types of Loans into a Borrowing or Borrowings of another Type of Loan,
provided that (i) no such partial conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made
pursuant to a single Borrowing to less than the applicable Minimum
Borrowing Amount, (ii) Base Rate Loans may not be converted into Eurodollar
Loans if any Event of Default is in existence on the date of the conversion
if the Administrative Agent or the Required Banks have previously advised
the Borrower that conversions will not be permitted while such Event of
Default remains in existence, (iii) no conversion pursuant to this Section
1.06 shall result in a greater number of Borrowings of Eurodollar Loans
than is permitted under Section 1.02 and (iv) prior to the Syndication
Date, no Loan may be converted into Eurodollar Loans except on the first
day of a Pre-Syndication Interest Period. Each such conversion (other than
automatic conversions pursuant to the last paragraph of Section 1.09) shall
be effected by the Borrower giving the Administrative Agent at its Notice
Office prior to 12:00 Noon (New York time) at least three Business Days'
prior written notice (each a "Notice of Conversion") specifying the Loans
to be so converted, the Borrowing or Borrowings pursuant to which such
Loans were made, the date of such conversion (which shall be a Business
Day) and, if to be converted into Eurodollar Loans, the Interest Period to
be initially applicable thereto. The Administrative Agent shall give each
Bank prompt notice of any such proposed conversion.
1.07 Pro Rata Borrowings. All Borrowings of Loans under this
Agreement shall be incurred from the Banks pro rata on the basis of their
Commitments. It is understood that no Bank shall be responsible for any
default by any other Bank of its obligation to make Loans hereunder and
that each Bank shall be obligated to make the Loans provided to be made by
it hereunder, regardless of the failure of any other Bank to make its Loans
hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date
the proceeds thereof are made available to the Borrower until the
conversion or maturity (whether by acceleration or otherwise) of such Base
Rate Loan, at a rate per annum which shall be equal to the sum of the
Applicable Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the conversion or maturity
(whether by acceleration or otherwise) of such Eurodollar Loan, at a rate
per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the Applicable Margin plus the Eurodollar Rate for such
Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount
payable hereunder shall, in each case, bear interest at a rate per annum
equal to the rate which is 2% in excess of the rate then borne by such
Loans (or in the case of overdue amounts other than Loans, an amount equal
to the sum of (i) the Base Rate in effect from time to time, (ii) the
Applicable Margin in respect of Base Rate Loans and (iii) 2%). Interest
which accrues under this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on the
last day of each Interest Period applicable thereto and (iii) in respect of
each Loan, on any repayment or prepayment (on the amount repaid or
prepaid), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the respective interest rate for each Interest Period
applicable to the Eurodollar Loans for which such determination is being
made and shall promptly notify the Borrower and the Banks thereof. Each
such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing in respect of the making of any Eurodollar Loan, or any Notice of
Conversion in respect of the conversion of any Eurodollar Loan (in the case
of the initial Interest Period applicable thereto) or on the third Business
Day prior to the expiration of an Interest Period applicable to such
Eurodollar Loan (in the case of any subsequent Interest Period), the
Borrower shall have the right to elect, by giving the Administrative Agent
notice thereof, the interest period (each an "Interest Period") applicable
to such Eurodollar Loan, which Interest Period shall, at the option of such
Borrower, be a one, two or three-month period (provided that prior to the
Syndication Date, only Pre-Syndication Interest Periods may be selected by
the Borrower); provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion thereto from a Borrowing of
Base Rate Loans) and each Interest Period occurring thereafter in
respect of such Eurodollar Loans shall commence on the day on which
the next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar
month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period would otherwise expire on a day which 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;
(v) no Interest Period may be selected at any time when an
Event of Default is then in existence if the Administrative Agent or
the Required Banks have previously advised the Borrower that
conversions will not be permitted while such Event of Default remains
in existence; and
(vi) no Interest Period shall be selected which extends beyond
the Maturity Date.
Prior to the termination of any Interest Period applicable to
any Loans, the Borrower may, at its option, designate that the respective
Borrowing subject thereto be split into more than one Borrowing (for
purposes of electing multiple Interest Periods to be applicable thereto
upon the expiration of such Interest Period), so long as each such
Borrowing resulting from the action taken pursuant to this sentence meets
the Minimum Borrowing Amount for such Loans. If upon the expiration of any
Interest Period applicable to a Borrowing of Eurodollar Loans, the Borrower
has failed to elect, or is not permitted to elect, a new Interest Period to
be applicable to such Eurodollar Loans as provided above, the Borrower
shall be deemed to have elected to convert such Eurodollar Loans into Base
Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but,
with respect to clauses (i) and (iii)(z) below, may be made only by the
Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
relevant interbank market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate;
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan which such Bank deems to be material
because of any change since the date of this Agreement in any
applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request (a "Change in Law"), which (A) changes the basis
of taxation of payment to any Bank of the principal of or interest on
such Eurodollar Loan or any other amounts payable hereunder (except
for changes in the rate of tax on, or determined by reference to, the
net income or profits of such Bank, pursuant to the laws of the
jurisdiction in which such Bank is organized or in which such Bank's
principal office or applicable lending office is located or any
subdivision thereof or therein and Taxes for which a payment is
required pursuant to Section 3.04(a)), (B) changes official reserve
requirements (but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate) and/or (C) imposes any other condition affecting
such Bank or the interbank Eurodollar market or the position of such
Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any Change in Law, (y)
impossible by compliance by any Bank in good faith with any
governmental request made after the date of this Agreement (whether
or not having force of law) or (z) impracticable as a result of a
Change in Law which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) or (iii)(z) above) shall promptly give notice (by
telephone confirmed in writing) to the Borrower and, except in the case of
clauses (i) and (iii)(z) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly
transmit to each of the other Banks). Thereafter (x) in the case of clause
(i) above, Eurodollar Loans shall no longer be available until such time as
the Administrative Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by
the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its reasonable discretion shall
determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing in
reasonable detail the basis for the calculation thereof, based on averaging
and attribution methods among customers which are reasonable, submitted to
the Borrower by such Bank in good faith shall, absent manifest error, be
final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the Borrower shall take one of the actions
specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may
(and in the case of a Eurodollar Loan affected by the circumstances
described in Section 1.10(a)(iii) shall) either (x) if the affected
Eurodollar Loan is then being made initially or pursuant to a conversion,
cancel the respective Borrowing by giving the Administrative Agent
telephonic notice (confirmed in writing) on the same date that the Borrower
was notified by the affected Bank or the Administrative Agent pursuant to
Section 1.10(a)(ii) or (iii) or (y) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days' written notice to the
Administrative Agent and the affected Bank, require the affected Bank to
convert such Eurodollar Loan into a Base Rate Loan or repay such Eurodollar
Loan in full; provided that if more than one Bank is affected at any time,
then all affected Banks must be treated the same pursuant to this Section
1.10(b).
(c) If any Bank shall have determined that, after the date
hereof, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on such Bank's or such other corporation's
capital or assets as a consequence of such Bank's Commitment or Commitments
or Loans hereunder or its obligations hereunder to a level below that which
such Bank or such other corporation could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration
such Bank's or such other corporation's policies with respect to capital
adequacy), then from time to time, upon written demand by such Bank (with a
copy to the Administrative Agent), accompanied by the notice referred to in
the penultimate sentence of this clause (c), the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank or such
other corporation for such reduction. In determining such additional
amounts, each Bank will act reasonably and in good faith and will use
reasonable averaging and attribution methods. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Borrower (a copy of
which shall be sent by such Bank to the Administrative Agent), which notice
shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such
notice. A Bank's reasonable good faith determination of compensation owing
under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto.
1.11 Compensation. The Borrower shall compensate each Bank,
upon its written request (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans) which such Bank
may sustain: (i) if for any reason (other than a default by such Bank or
the Administrative Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by such
Borrower); (ii) if any repayment (including any repayment made pursuant to
Section 3.01 or a result of an acceleration of the Loans pursuant to
Section 8 or as a result of the replacement of a Bank pursuant to Section
1.13 or 11.12(b)) or conversion of any Eurodollar Loans occurs on a date
which is not the last day of an Interest Period with respect thereto; (iii)
if any prepayment of any Eurodollar Loans is not made on any date specified
in a notice of prepayment given by the Borrower; or (iv) as a consequence
of (x) any other default by the Borrower to repay its Loans when required
by the terms of this Agreement or any Note held by such Bank or (y) any
election made pursuant to Section 1.10(b).
1.12 Lending Offices; Changes Thereto. (a) Each Bank may at any
time or from time to time designate, by written notice to the
Administrative Agent to the extent not already reflected on Schedule II,
one or more lending offices (which, for this purpose, may include Lending
Affiliates of the respective Bank) for the various Loans made by such Bank;
provided that for designations made after the Initial Borrowing Date, to
the extent such designation shall result in increased costs under Section
1.10 or 3.04 in excess of those which would be charged in the absence of
the designation of a different lending office (including a different
Affiliate of the respective Bank), then the Borrower shall not be obligated
to pay such excess increased costs (although the Borrower, in accordance
with and pursuant to the other provisions of this Agreement, shall be
obligated to pay the costs which would apply in the absence of such
designation and any subsequent increased costs of the type described above
resulting from changes after the date of the respective designation). Each
lending office and Affiliate of any Bank designated as provided above
shall, for all purposes of this Agreement, be treated in the same manner as
the respective Bank (and shall be entitled to all indemnities and similar
provisions in respect of its acting as such hereunder).
(b) Each Bank agrees that on the occurrence of any event giving
rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 1.10(d) or Section 3.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for
any Loans affected by such event, provided that such designation is made on
such terms that such Bank and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of
the event giving rise to the operation of such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the
Borrower or the right of any Bank provided in Sections 1.10 and 3.04.
1.13 Replacement of Banks. (a) (i) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans,
(ii) if any Bank refuses to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Banks as provided in Section 11.12(b) or (iii)
upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 1.10(d) or Section 3.04 with
respect to any Bank which results in such Bank charging to the Borrower
increased costs, the Borrower shall have the right, in accordance with the
requirements of Section 11.04(b), if no Event of Default will exist after
giving effect to such replacement, to replace such Bank (the "Replaced
Bank") with an Eligible Transferee or Eligible Transferees, none of which
shall constitute a Defaulting Bank at the time of such replacement
(collectively, the "Replacement Bank"), reasonably acceptable to the
Administrative Agent, provided that (i) at the time of any replacement
pursuant to this Section 1.13, the Replacement Bank shall enter into one or
more Assignment and Assumption Agreements pursuant to Section 11.04(b) (and
with the assignment fee payable pursuant to said Section 11.04(b) to be
paid by the Replacement Bank) pursuant to which the Replacement Bank shall
acquire all of the Commitments and outstanding Loans of the Replaced Bank
and, in connection therewith, shall pay to the Replaced Bank 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 Bank
and (B) an amount equal to all accrued, but theretofore unpaid, Fees owing
to the Replaced Bank pursuant to Section 2.01 and (ii) all obligations of
the Borrower owing to the Replaced Bank (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 Bank concurrently with such replacement.
(b) Upon the execution of the respective Assignment and
Assumption Agreements, the payment of amounts referred to in clauses (i)
and (ii) of the proviso contained in Section 1.13(a) and, if so requested
by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Note executed by such Borrower, the Replacement Bank shall
become a Bank hereunder and the Replaced Bank shall cease to constitute a
Bank hereunder, except with respect to indemnification provisions
applicable to the Replaced Bank under this Agreement (including, without
limitation, Sections 1.10, 1.11, 3.04, 11.01 and 11.06), which shall
survive as to such Replaced Bank.
1.14 Limitations on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11 or 3.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated
to pay an amount under the respective Section within 180 days after the
date such Bank incurs the respective increased costs, Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in
return on capital, then such Bank shall only be entitled to be compensated
for such amount by the Borrower pursuant to said Section 1.10, 1.11 or
3.04, as the case may be, to the extent the costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in
return on capital are incurred or suffered on or after the date which
occurs 180 days prior to such Bank giving notice to such Borrower that it
is obligated to pay the respective amounts pursuant to said Section 1.10,
1.11 or 3.04, as the case may be; provided that if the circumstances giving
rise to such claims have a retroactive effect, then such 180-day period
shall be extended to include the period of such retroactive effect.
Notwithstanding anything to the contrary in this Agreement, this Section
1.14 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11 and 3.04.
SECTION 2. Commitment Commission; Fees; Reductions of Commitment.
2.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent for distribution to each Bank a commitment fee (the "Commitment Fee")
for the period from and including the Effective Date to but not including
the date the Total Commitment has been terminated, computed at a rate equal
to 0.50% on the average daily Commitment of such Bank. Accrued Commitment
Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and the date upon which the Total Commitment is terminated.
(b) The Borrower agrees to pay to each Agent, for its own
account, such other fees (if any) as have been agreed to in writing by the
Borrower and each Agent.
2.02 Voluntary Termination of Total Commitment. Upon at least
two Business Days' prior notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to
each of the Banks), the Borrower shall have the right, from and after the
Initial Borrowing Date, at any time, without premium or penalty, to
permanently terminate the Total Commitment, in whole but not in part,
provided that (i) in no event shall the Total Commitment be voluntarily
terminated prior to the date on which the Loans (together with any accrued
interest) have been repaid in full and (ii) each such reduction to the
Total Commitment shall apply proportionately to permanently reduce the
Commitment of each Bank.
2.03 Mandatory Reduction of Commitments. (a) The Total
Commitment shall be reduced on each Borrowing Date (after giving effect to
the making of Loans on each such date) in an amount equal to the aggregate
principal amount of Loans incurred on such date.
(b) The Total Commitment shall terminate in its entirety on the
date of the consummation of the Tender Offer (before giving effect to the
making of any Loans on such date) in the event that 6,135,061 or more
shares of the common stock of Gleason Corporation are tendered pursuant to
the Tender Offer.
(c) The Total Commitment shall terminate in its entirety on the
Maturity Date, whether or not any Loans have been incurred on such date.
(d) Each reduction to the Total Commitment pursuant to this
Section 2.03 shall be applied proportionately to reduce the Commitment of
each Bank.
SECTION 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. The Borrower shall have the right
to prepay Loans, without premium or penalty, in whole or in part from time
to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its
Notice Office (x) written notice prior to 12:00 Noon (New York time)
at least three Business Days prior to the date of such prepayment in
the case of Eurodollar Loans and (y) written notice prior to 12:00
Noon (New York time) at least one Business Day prior to the date of
such prepayment in the case of Base Rate Loans of its intent to
prepay the Loans, the amount of such prepayment and the Types of
Loans to be prepaid, and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice
the Administrative Agent shall promptly transmit to each of the
Banks;
(ii) each partial prepayment shall be in an aggregate principal
amount of at least the applicable Minimum Borrowing Amount; provided
that no partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than the applicable Minimum Borrowing
Amount; and
(iii) each prepayment in respect of any Loans made pursuant to
a Borrowing shall be applied pro rata among such Loans.
3.02 Mandatory Repayments. All outstanding Loans shall be repaid
in full on the Maturity Date.
3.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto no later than 12:00 Noon (New York time) on the date
when due and shall be made in immediately available funds at the Payment
Office of the Administrative Agent and in Dollars. Whenever any payment to
be made hereunder or under any Note shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
3.04 Net Payments; Taxes. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 3.04(b), all such payments
will be made free and clear of, and without deduction or withholding for,
any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, any tax imposed on or measured by the net
income or net profits of a Bank pursuant to the laws of the jurisdiction in
which it is organized or the jurisdiction in which the principal office or
applicable lending office of such Bank is located or any political
subdivision or taxing authority thereof or therein) and all interest,
penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay
the full amount of such Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement or
under any Note, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such
Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net
income of such Bank pursuant to the laws of the jurisdiction or any
political subdivision or taxing authority thereof or therein in which the
principal office or applicable lending office of such Bank is located as
such Bank shall determine are payable by such Bank in respect of such
amounts so paid to or on behalf of such Bank pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Bank
pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date of the payment of any Taxes is due
pursuant to applicable law certified copies of tax receipts evidencing such
payment by the Borrower. Without duplication of amounts payable pursuant to
the foregoing provisions of this Section 3.04(a), the Borrower agrees to
indemnify and hold harmless each Bank, and reimburse such Bank upon its
written request, for the amount of any Taxes so levied or imposed and paid
by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, or
in the case of a Bank that is an assignee or transferee of an interest
under this Agreement pursuant to Section 1.13 or 11.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or successor forms) certifying to
such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement
and under any Note or (ii) if the Bank is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) pursuant to clause (i) above, (x) a
certificate substantially in the form of Exhibit C (any such certificate, a
"Section 3.04(b)(ii) Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN (with
respect to the portfolio interest exemption) (or successor form) certifying
to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. Each other Bank agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Initial Borrowing
Date, or in the case of a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 11.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, one or more accurate and completed original signed copies (as the
Borrower or Administrative Agent may reasonably request) of United States
Internal Revenue Service Form W-9 or successor applicable form (if required
by law), as the case may be, providing the employer identification number
for such Bank. In addition, each Bank agrees that from time to time after
the Effective Date, when a lapse in time or change in circumstances renders
the previous certification obsolete or inaccurate in any material respect,
it will deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI or Form W- 8BEN (with respect to the benefit of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption)
and a Section 3.04(b)(ii) Certificate or Form W-9 (or successor form), as
the case may be, and such other forms as may be required in order to
confirm or establish the entitlement of such Bank to a continued exemption
from or reduction in United States withholding tax with respect to payments
under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such
Form or Certificate, in which case such Bank shall not be required to
deliver any such form of certificate pursuant to this Section 3.04(b).
Notwithstanding anything to the contrary contained in Section 3.04(a), but
subject to the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or
withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from
interest, Fees or other amounts payable hereunder for the account of any
Bank to the extent that such Bank has not provided to the Borrower U.S.
Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 3.04(a) hereof to gross-up payments to be made to a
Bank in respect of income or similar taxes imposed by the United States if
(I) such Bank has not provided to the Borrower the Internal Revenue Service
Forms required to be provided to the Borrower pursuant to this Section
3.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 3.04, the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in
Section 3.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted
or withheld by it as described in the immediately preceding sentence as a
result of any changes after the Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such
income or similar Taxes.
(c) If the Borrower pays any additional amount under this
Section 3.04 to a Bank and such Bank determines in its sole discretion that
it has actually received or realized in connection therewith any refund or
any reduction of, or credit against, its Tax liabilities in or with respect
to the taxable year in which the additional amount is paid (a "Tax
Benefit"), such Bank shall pay the Borrower an amount that the Bank shall,
in its sole discretion, determine is equal to the net benefit, after tax,
which was obtained by such Bank in such year as a consequence of such Tax
Benefit; provided, however, that (i) any Bank may determine in its sole
discretion consistent with the policies of such Bank whether to seek a Tax
Benefit; (ii) any Taxes that are imposed on a Bank as a result of a
disallowance or reduction (including through the expiration of any tax
carryover or carryback of such Bank that otherwise would not have expired)
of any Tax Benefit with respect to which such Bank has made a payment to
the Borrower pursuant to this Section 3.04(c) shall be treated as a Tax for
which the Borrower is obligated to indemnify such Bank pursuant to this
Section 3.04 without any exclusions or defenses; and (iii) nothing in this
Section 3.04(c) shall require a Bank to disclose any confidential
information to the Borrower (including, without limitation, its tax
returns).
SECTION 4. Conditions Precedent. The obligation of each Bank to
make Loans hereunder is subject, at the time of the making of each such Loan,
to the satisfaction of the following conditions:
4.01 Execution of Agreement; Notes. On or prior to the Initial
Borrowing Date (i) this Agreement shall have been executed and delivered as
provided in Section 11.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each of the Banks requesting them a
Note executed by the Borrower, in each case in the amount, maturity and as
otherwise provided herein.
4.02 No Default; Representations and Warranties. At the time of
the making of any Loans hereunder and also after giving effect thereto (i)
there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein or in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the
date of the making of such Loans (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only
as of such specified date).
4.03 Officer's Certificate. On the Initial Borrowing Date, the
Administrative Agent shall have received a certificate dated such date
signed by the President or any Vice President of the Borrower stating that
all of the applicable conditions set forth in Section 4.02, 4.08 and 4.09
have been met.
4.04 Opinions of Counsel. On the Initial Borrowing Date, the
Administrative Agent shall have received from (i) Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel to the Credit Parties, an opinion
addressed to the Administrative Agent, the Pledgee and each of the Banks
and dated the Initial Borrowing Date covering the matters set forth in
Exhibit D-1 and (ii) White & Case LLP, counsel to the Administrative Agent
and the Banks, an opinion addressed to the Administrative Agent and the
Banks and dated the Initial Borrowing Date covering the matters set forth
in Exhibit D-2.
4.05 Corporate Documents; Proceedings. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by an Authorized Officer of each
Credit Party, and attested to by a second Authorized Officer of such Credit
Party, substantially in the form of Exhibit E with appropriate insertions,
together with copies of the Certificate of Incorporation and By-Laws (or
their equivalents) of such Credit Party and the resolutions of such Credit
Party referred to in such certificate, and the foregoing shall be
reasonably acceptable to the Administrative Agent.
(b) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements relating to the transactions
contemplated by this Agreement and the other Credit Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received all information and copies
of all documents and papers, including records of corporate proceedings,
governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent may have reasonably
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental
authorities.
4.06 Pledge Agreement. On the Initial Borrowing Date, Parent
shall have duly authorized, executed and delivered a pledge agreement
substantially in the form of Exhibit F (such pledge agreement, as modified,
supplemented or amended from time to time, the "Pledge Agreement"), and
Parent shall have (i) delivered to the Pledgee thereunder all of the
Pledged Stock referred to therein then owned by Parent, together with
executed and undated irrevocable stock powers and (ii) taken such other
action to perfect the security interests created thereunder as the Pledgee
shall reasonably request.
4.07 Fees, etc. On the Initial Borrowing Date, the Borrower
shall have paid in full to the Administrative Agent and the Banks all
costs, fees and expenses (including, without limitation, all reasonable
out-of-pocket legal fees and expenses), if any, payable to the
Administrative Agent and the Banks to the extent then due pursuant hereto
or as otherwise agreed between the Borrower and each Agent.
4.08 Gleason Credit Agreement. On the Initial Borrowing Date,
all conditions precedent set forth in Section 5 of the Gleason Credit
Agreement shall have been satisfied, and not waived in any material respect
except with the consent of the Administrative Agent, to the satisfaction of
the Administrative Agent, and the initial borrowing of "Loans" under, and
as defined in, the Gleason Credit Agreement shall have occurred.
4.09 Assignment of Purchase Rights. On or prior to the Initial
Borrowing Date, Parent shall have assigned to the Borrower all of Parent's
rights to purchase outstanding shares of the capital stock of Gleason
Corporation pursuant to the Tender Offer.
4.10 Equity Financing. On or prior to the Initial Borrowing
Date, Vestar Capital Partners IV, L.P. and, at Vestar Capital Partners IV,
L.P.'s election, other investors reasonably satisfactory to the Required
Banks shall have made a capital contribution to Parent in an amount of at
least $53,000,000 in cash and in exchange for all the outstanding limited
liability company units of Parent , (ii) Parent shall have in turn
contributed 100% of such capital contribution to the Borrower and (iii) the
Borrower shall have used the proceeds from such capital contribution to
purchase shares of outstanding shares of the capital stock of Gleason
Corporation pursuant to the Tender Offer.
4.11 Notice of Borrowing. Prior to the making of each Loan, the
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03.
SECTION 5. Representations and Warranties. In order to induce
the Banks to enter into this Agreement and to make the Loans as provided
herein, each of Parent and the Borrower makes the following representations
and warranties, on behalf of itself and, with respect to Section 5.15, its
Subsidiaries, in each case after giving effect to the Transaction, with the
making of each Loan on or after the Initial Borrowing Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 5 are true and correct in all material respects on and as of the
Initial Borrowing Date and on the date of the making of each such Loan (it
being understood and agreed that any representation or warranty which by
its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date):
5.01 Status. Each Credit Party (i) is a duly organized and
validly existing corporation or other entity in good standing under the
laws of the jurisdiction of its organization, except where the failure to
be in good standing, so organized or existing, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Parent and the Borrower taken as a whole, (ii) has the corporate or other
power and authority to own its property and assets and to transact the
business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing
in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified, have such authority
or be in good standing, which, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities or condition (financial or
otherwise) of Parent and the Borrower taken as a whole.
5.02 Power and Authority. Each Credit Party has the corporate
or other power and authority to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is party and has
taken all necessary corporate or other action to authorize the execution,
delivery and performance by it of each such Credit Document. Each Credit
Party has duly executed and delivered each of the Credit Documents to which
it is party, and each such Credit Document constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms, subject to the effects of bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(regardless of whether considered in proceedings in equity or at law) and
an implied covenant of good faith and fair dealing.
5.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a
party, nor compliance by it with the terms and provisions thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation
or any applicable order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with, or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except pursuant to the Pledge
Agreement) upon any of the properties or assets of any Credit Party
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument, to which any Credit Party is a party or by which it or any of
its property or assets is bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation or by-laws or
other organizational documents, as applicable, of any Credit Party.
5.04 Governmental Approvals. 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 (i) to authorize, or is
required in connection with, the execution, delivery and performance of any
Credit Document by any Credit Party or (ii) to ensure the legality,
validity, binding effect or enforceability of any such Credit Document with
respect to any Credit Party, except those (A) which have been obtained or
made prior to the Initial Borrowing Date or (B) the absence of which,
either individually or in the aggregate, could not reasonably be expected
to have a material adverse effect on either (x) the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Parent and the Borrower taken as a whole or (y) the rights or remedies of
the Banks or the Administrative Agent or on the ability of Parent or the
Borrower to perform its obligations hereunder and under the other Credit
Documents to which it is a party.
5.05 Financial Condition. (a) Since the Effective Date, there
has been no material adverse change in the business, operations, property,
assets, liabilities or condition (financial or otherwise) of Parent and the
Borrower taken as a whole.
(b) On and as of the Initial Borrowing Date, on a pro forma
basis after giving effect to the Transaction occurring on such date and to
all Indebtedness (including the Loans) being incurred or assumed on such
date and Liens created by the Credit Parties in connection therewith, (x)
the sum of the assets, at a fair valuation, of Parent and the Borrower (on
a consolidated basis) and of the Borrower (on a stand-alone basis) will
exceed their respective debts, (y) each of Parent and the Borrower (on a
consolidated basis) and the Borrower (on a stand-alone basis) have not
incurred and do not intend to incur, and do not believe that they will
incur, debts beyond their ability to pay such debts as such debts mature
and (z) each of Parent and the Borrower (on a consolidated basis) and the
Borrower (on a stand-alone basis) have sufficient capital with which to
conduct its business. For purposes of this Section 5.05(b) "debt" means any
liability on a claim, and "claim" means (i) right to payment whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or unsecured.
(c) Except for liabilities or obligations of Parent or the
Borrower arising under the Transaction Documents, there were as of the
Initial Borrowing Date no liabilities or obligations with respect to either
such Credit Party of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due) which, either individually
or in aggregate, could reasonably be expected to be materially adverse to
Parent and the Borrower taken as a whole.
5.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Parent or the Borrower, threatened (i)
with respect to the Transaction or the Credit Documents (except as
described on Schedule III and any other actions, suits or proceedings
relating to or arising from a similar cause of action) or (ii) that could
reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities or condition (financial or
otherwise) of Parent and the Borrower taken as a whole.
5.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of Parent or the Borrower in
writing to the Administrative Agent or any Bank (including, without
limitation, all information contained in the Credit Documents) for purposes
of or in connection with this Agreement, the other Credit Documents or any
transaction contemplated herein or therein is true and accurate in all
material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such
information was provided.
5.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
the Loans shall be used by the Borrower (i) on the Initial Borrowing Date,
(x) to purchase shares of common stock of Gleason Corporation pursuant to
the Tender Offer and (y) to pay fees and expenses related thereto and (ii)
on each other Borrowing Date, to pay accrued interest on outstanding Loans
in accordance with Section 1.08 and/or to pay accrued Commitment Fees
pursuant to Section 2.01.
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock; provided that the Borrower may use
the proceeds of Loans to purchase Margin Stock pursuant to the Tender Offer
in compliance with Regulations T, U and X. Neither the making of any Loan
nor the use of the proceeds thereof will violate or be inconsistent with
the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
5.09 Pledge Agreement. The security interests created in favor
of the Pledgee for the benefit of the Secured Creditors under the Pledge
Agreement constitute first priority perfected security interests in the
Pledged Stock (assuming the Pledgee's continuous possession thereof)
described in the Pledge Agreement, subject to no security interests of any
other Person (except as permitted under Section 7.01(i)). No filings or
recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created in the Pledged Stock and the
proceeds thereof under the Pledge Agreement.
5.10 Subsidiaries. Schedule IV lists each Subsidiary of each
Credit Party, and the direct and indirect ownership interest of such Credit
Party therein, in each case as of the Initial Borrowing Date and after
giving effect to the Transaction.
5.11 Compliance with Statutes, etc. Each Credit Party is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property, except such noncompliance as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities or condition (financial
or otherwise) of Parent and the Borrower taken as a whole.
5.12 Investment Company Act. No Credit Party is an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
5.13 Public Utility Holding Company Act. No Credit Party is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.14 Special Purpose Corporation. (a) Parent was formed solely
to effect the Transaction and, except in connection therewith (and as
contemplated by the Credit Documents), has no significant assets or
liabilities (other than (i) the rights to purchase shares of the capital
stock of Gleason Corporation pursuant to the Tender Offer, (ii) the capital
stock of the Borrower and (iii) under this Agreement, the other Credit
Documents and the Transaction Documents to which it is party) and has
engaged in no substantial business activities.
(b) The Borrower was formed solely to effect the Transaction
and, except in connection therewith (and as contemplated by the Credit
Documents), has no significant assets or liabilities (other than (i) the
capital stock of Gleason Corporation acquired pursuant to the Tender Offer
and (ii) under this Agreement and the other Credit Documents to which it is
party) and has engaged in no substantial business activities.
5.15 Representations and Warranties in the Gleason Credit
Agreement. All representations and warranties of each Credit Party (as
defined in the Gleason Credit Agreement) set forth in the Gleason Credit
Agreement and each other Credit Document (as defined in the Gleason Credit
Agreement) are true and correct in all material respects, unless stated to
relate to a specific earlier date, in which case such representations and
warranties were true and correct in all material respects on such earlier
date.
SECTION 6. Affirmative Covenants. Each Credit Party hereby
covenants and agrees for itself and, with respect to Section 6.08, its
Subsidiaries that on and after the Initial Borrowing Date and thereafter
for so long as this Agreement is in effect and until the Loans and Notes,
together with all accrued but unpaid interest, Fees and other Obligations,
are paid in full:
6.01 Information Covenants. The Borrower will furnish to the
Administrative Agent (which shall promptly distribute a copy to each Bank):
(a) Notice of Default or Litigation. Promptly, and in any event
within five Business Days after an officer of any Credit Party obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default (provided such Default or
Event of Default is continuing) and (ii) any litigation or governmental
investigation or proceeding pending or threatened (x) against Parent or the
Borrower which could reasonably be expected to materially and adversely
affect the business, operations, property, assets, liabilities or condition
(financial or otherwise) of Parent and the Borrower taken as a whole or (y)
with respect to any Credit Document.
(b) Gleason Corporation Information. At the times provided
under the Gleason Credit Agreement, a copy of any financial statements,
notices, reports and other information required to be delivered pursuant to
Section 7.01 of the Gleason Credit Agreement.
(c) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports,
if any, which Parent or the Borrower shall file with the Securities and
Exchange Commission or any successor thereto (the "SEC").
(d) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to Parent or
the Borrower as the Administrative Agent or any Bank may reasonably request
in writing.
6.02 Books, Records and Inspections. Each Credit Party will
keep proper books of record and account in which full, true and correct
entries in conformity with generally accepted accounting principles and all
requirements of law shall be made of all material dealings and transactions
in relation to its business and activities. Each Credit Party will permit
officers and designated representatives of the Administrative Agent or any
Bank to visit and inspect, during regular business hours and under guidance
of officers of such Credit Party, any of the properties of such Credit
Party, and, subject to the foregoing requirements, to examine the books of
account of such Credit Party and discuss the affairs, finances and accounts
of such Credit Party with, and be advised as to the same by, its and their
officers and independent accountants, all at such reasonable times and
intervals, upon such reasonable notice and to such reasonable extent as the
Administrative Agent or such Bank may request.
6.03 Existence. Each Credit Party will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, provided that the cessation of the Borrower's existence pursuant
to the Merger shall not violate this Section 6.03.
6.04 Compliance with Statutes, etc. Each Credit Party will
comply with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property, except such noncompliance as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities or condition (financial
or otherwise) of Parent and the Borrower taken as a whole.
6.05 Performance of Obligations. Each Credit Party will perform
all of its obligations under the terms of each mortgage, deed of trust,
indenture, loan agreement or credit agreement and each other material
agreement, contract or instrument by which it is bound, except such
non-performances as could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities or condition (financial or otherwise) of
Parent and the Borrower taken as a whole; provided that the failure to pay
any Indebtedness shall not constitute a breach of this Section 6.05 unless
it shall give rise to an Event of Default under Section 8.04.
6.06 Ownership of Subsidiaries. Parent will at all times ensure
that the Borrower remains a Wholly-Owned Subsidiary except to the extent
that the Borrower is merged into Gleason Corporation pursuant to the
Merger.
6.07 Consummation of the Merger. No later than 180 days
following the Initial Borrowing Date, (i) Parent and the Borrower shall
cause the Merger to be consummated, and (ii) all conditions precedent to
the consummation of the Merger as set forth in the Merger Documents shall
have been satisfied, and not waived in any material respect unless
consented to by the Administrative Agent and the Required Banks. On the
date of the consummation thereof, the Merger shall have been consummated in
accordance in all material respects with the terms and conditions of the
Merger Documents and all applicable laws.
6.08 Compliance with Covenants in the Gleason Credit Agreement.
Each Credit Party shall cause Gleason Corporation and each of its
Subsidiaries to comply with all of the covenants set forth in Sections 7
and 8 of the Gleason Credit Agreement.
SECTION 7. Negative Covenants. Each Credit Party hereby
covenants and agrees for itself that on and after the Initial Borrowing
Date and until the Loans and Notes, together with all accrued but unpaid
interest, Fees and other Obligations, are paid in full:
7.01 Liens. No Credit Party will create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets
(real or personal, tangible or intangible) of any Credit Party, whether now
owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable with recourse to
any Credit Party), or assign any right to receive income, provided that the
provisions of this Section 7.01 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established to the extent required by generally accepted accounting
principles;
(ii) Liens in respect of property or assets of any Credit Party
imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness, such as carriers',
warehousemen's, materialmen's and mechanics' liens and other similar
Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of such Credit
Party's property or assets or materially impair the use thereof in
the operation of the business of such Credit Party or (y) which are
being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of
the property or assets subject to any such Lien;
(iii) Liens created pursuant to the Pledge Agreement;
(iv) normal and customary rights of set-off upon deposits of cash
in favor of banks and other depository institutions; and
(v) Liens on common stock of Gleason Corporation acquired by
the Borrower pursuant to the Tender Offer.
7.02 Consolidation, Merger, Sale of Assets, etc. No Credit
Party will wind up, liquidate or dissolve its affairs or enter into any
transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of (or agree to do any of the foregoing at any future time) all or
any part of its property or assets, or enter into any sale-leaseback
transactions, except that:
(i) the Transaction shall be permitted;
(ii) transactions permitted under Section 7.05 shall be permitted;
and
(iii) the Borrower may sell shares of Gleason Corporation owned
by it so long as (x) such sales are for cash consideration only, (y)
such sales are at fair market value and (z) the proceeds of such
sales are retained by the Borrower and held as cash or invested in
Cash Equivalents.
7.03 Dividends. No Credit Party will authorize, declare or pay
any Dividends.
7.04 Indebtedness. No Credit Party will contract, create,
incur, assume or suffer to exist any Indebtedness, except Indebtedness
incurred pursuant to this Agreement and the other Credit Documents.
7.05 Advances, Investments, Loans, Purchase of Assets. No
Credit Party will (w) lend money or credit or make advances to any other
Person, (x) purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets of any other Person
(including, without limitation, any stock, obligations or securities of, or
any other interest in, any other Person, but excluding purchases or other
acquisitions of materials, equipment and other tangible and intangible
assets in the ordinary course of business), (y) make any capital
contribution to any other Person or (z) purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, except
that the following shall be permitted:
(i) each Credit Party may acquire and hold cash and Cash
Equivalents;
(ii) each Credit Party may enter into transactions permitted
under Section 7.02;
(iii) equity contributions by Parent in the Borrower; and
(iv) the Transaction.
7.06 Transactions with Affiliates. No Credit Party will enter
into any transaction or series of related transactions, whether or not in
the ordinary course of business, with any Affiliate of any Credit Party,
other than as otherwise permitted under the provisions of this Agreement
and on terms and conditions substantially as favorable to such Credit Party
as would reasonably be obtained by such Credit Party at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that:
(i) the Transaction shall be permitted;
(ii) transactions permitted under Section 7.02 shall be permitted;
(iii) other transactions between or among Parent and its
Subsidiaries not involving any other Affiliate and not otherwise
prohibited under this Agreement shall be permitted; and
(iv) customary fees may be paid to members of the Board of
Directors of Parent and the Borrower for their services as directors
not in excess of fees paid to directors who are not Affiliates.
7.07 Capital Expenditures. No Credit Party will make any Capital
Expenditures.
7.08 Modifications of Certificate of Incorporation, By-Laws and
Certain Agreements; etc. No Credit Party will amend, modify or change its
certificate of incorporation or limited liability company agreement or
by-laws (if any), or any agreement entered into by it, with respect to its
capital stock or other equity interests, or enter into any new agreement
with respect to its capital stock or other equity interests, other than any
amendments, modifications or changes or any such new agreements which are
not adverse in any material respect to the interests of the Banks.
7.09 Limitation on Issuance of Equity. (a) Parent will not
permit the Borrower to issue any capital stock or other equity interests
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock or other equity
interests, except (i) for transfers and replacements of then outstanding
shares of capital stock or other equity interests and (ii) for stock
splits, stock dividends and similar issuances which do not decrease the
percentage ownership of Parent in any class of the capital stock or other
equity interests of the Borrower.
(b) Parent will not, and will not permit the Borrower to, issue
(i) any class of preferred equity or (ii) any class of redeemable (except
at the sole option of Parent or the Borrower) common equity.
7.10 Business. (a) Parent will not engage in any business
activities and will not have any significant assets or liabilities other
than rights to acquire the capital stock of Gleason Corporation prior to
the consummation of the Tender Offer, its ownership of the equity interests
of the Borrower, liabilities imposed by law, activities in connection with
the Transaction and its obligations with respect to this Agreement, the
other Credit Documents and the Transaction Documents to which it is a
party.
(b) The Borrower will not engage in any business activities and
will not have any significant assets or liabilities other than its
ownership of the capital stock of Gleason Corporation acquired pursuant to
the Tender Offer, liabilities imposed by law, activities in connection with
the Transaction and its obligations with respect to this Agreement, the
other Credit Documents and the Transaction Documents.
7.11 Limitation on the Creation of Subsidiaries.
Notwithstanding anything to the contrary contained in this Agreement, no
Credit Party will create or acquire any Subsidiary; provided that the
Borrower may acquire Gleason Corporation (and, indirectly, its
Subsidiaries) pursuant to the Tender Offer.
SECTION 8. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
8.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note or (ii) default, and such
default shall continue unremedied for three or more days, in the payment
when due of any interest on any Loan or Note, or any Fees or any other
amounts owing hereunder or under any other Credit Document; or
8.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document
or in any certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed
made; or
8.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement
contained in Section 6.01(a)(i), Section 6.07, 6.08 (as it relates to
Section 8 of the Gleason Credit Agreement) or Section 7 or (ii) default in
the due performance or observance by it of any other term, covenant or
agreement contained in this Agreement (other than as provided in Section
8.01) and such default shall continue unremedied for a period of 30 days
after written notice to the defaulting party by the Administrative Agent or
the Required Banks; or
8.04 Default Under Other Agreements. (i) Parent or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y)
default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or administrative agent on behalf of such holder
or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated
maturity, or (ii) any such Indebtedness of Parent or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled prepayment or required
prepayment (other than pursuant to a "due-on-sale" clause in a mortgage or
similar security agreement) (unless such required prepayment results from a
default thereunder or an event of the type that constitutes an Event of
Default), prior to the stated maturity thereof, provided that it shall not
be a Default or an Event of Default under this Section 8.04 unless the
aggregate outstanding principal amount of all Indebtedness as described in
preceding clauses (i) and (ii) is at least $100,000; or
8.05 Bankruptcy, etc. Parent or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Parent or any of its Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of Parent or any of its Subsidiaries, or Parent or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar law of any jurisdiction whether now or hereafter
in effect relating to Parent or any of its Subsidiaries, or there is
commenced against Parent or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days; or Parent or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief
or other order approving any such case or proceeding is entered; or Parent
or any of its Subsidiaries suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or Parent or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or
any corporate action is taken by Parent or any of its Subsidiaries for the
purpose of effecting any of the foregoing; or
8.06 Pledge Agreement. Except to the extent resulting from the
failure of the Pledgee to retain possession of the applicable Pledged
Stock, at any time after the execution and delivery thereof, the Pledge
Agreement shall cease to be in full force and effect, or shall cease to
give the Pledgee for the benefit of the Secured Creditors the Liens,
rights, powers and privileges purported to be created thereby (including,
without limitation, a perfected security interest in, and Lien on, all of
the Pledged Stock), in favor of the Pledgee, superior to and prior to the
rights of all third Persons (except as permitted by Section 7.01), and
subject to no other Liens (other than Permitted Liens), or any Credit Party
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to the Pledge
Agreement and, with respect to Section 11(a) of the Pledge Agreement, such
default shall continue unremedied for a period of 15 days after written
notice to the defaulting party by the Administrative Agent or the Required
Banks; or
8.07 Judgments. One or more judgments or decrees shall be
entered against any Credit Party involving in the aggregate for the Credit
Parties a liability of $100,000 or more (not paid or fully covered by a
reputable and solvent insurance company) and such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending appeal
within 60 days from the entry thereof; or
8.08 Gleason Credit Agreement. Any Event of Default under and
as defined in the Gleason Credit Agreement shall occur; or
8.09 Change of Control. A Change of Control shall have
occurred; then, and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, the Administrative Agent, upon
the written request of the Required Banks, shall by written notice to the
Borrower, take any or all of the following actions, without prejudice to
the rights of the Administrative Agent, any Bank or the holder of any Note
to enforce its claims against any Credit Party (provided that, if an Event
of Default specified in Section 8.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent to the Borrower as specified in clauses (i) and
(ii) below shall occur automatically without the giving of any such
notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of each Bank shall forthwith terminate immediately and any
Commitment Fee shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans and the Notes and all Obligations owing hereunder
and thereunder to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; and (iii) enforce, as
Pledgee, all of the Liens and security interests created pursuant to the
Pledge Agreement.
SECTION 9. Definitions and Accounting Terms.
9.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Banks hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 10.09.
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling (including, but not limited
to, all directors, officers and partners of such Person) controlled by, or
under direct or indirect common control with, such Person or (ii) that
directly or indirectly owns more than 10% of any class of the voting
securities or capital stock of or equity interests in such Person. A Person
shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" shall mean each of the Administrative Agent, the
Syndication Agent and the Documentation Agent (if any).
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed, refinanced or replaced
from time to time.
"Applicable Margin" shall mean (i) in the case of Loans
maintained as Base Rate Loans, 2.50% and (ii) in the case of Loans
maintained as Eurodollar Loans, 3.50%.
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit G
(appropriately completed).
"Authorized Officer" of any Credit Party shall mean any of the
Chief Executive Officer, President, the Chief Financial Officer, the
Treasurer, the Controller, any Assistant Treasurer, any Vice-President, the
Secretary or the General Counsel of such Credit Party or any other officer
of such Credit Party which is designated in writing to the Administrative
Agent by any of the foregoing officers of such Credit Party as being
authorized to give such notices under this Agreement.
"Bank" shall mean each financial institution listed on Schedule
II, as well as any Person which becomes a "Bank" hereunder pursuant to
11.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or (ii)
a Bank having notified in writing the Borrowers and/or the Administrative
Agent that it does not intend to comply with its obligations under Section
1.01, in the case of either clause (i) or (ii) as a result of any takeover
of such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
8.05.
"Base Rate" at any time shall mean the higher of (i) the rate
which is 1/2 of 1% in excess of the overnight Federal Funds Rate and (ii)
the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Borrowing" shall mean a borrowing of one Type of Loans by the
Borrower from all the Banks on a given date (or resulting from a conversion
or conversions on such date) and, in the case of Eurodollar Loans, having
the same Interest Period, provided that Base Rate Loans incurred pursuant
to Section 1.10(b) shall be considered part of the related Borrowing of
Eurodollar Loans.
"Borrowing Date" shall mean the Initial Borrowing Date and each
other date on which a Borrowing occurs hereunder; it being understood and
agreed that the proceeds from any Borrowing on any Borrowing Date shall be
used only in accordance with Section 5.08.
"BTCo" shall mean Bankers Trust Company, in its individual
capacity, and any successor thereto by merger.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day
which shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action
to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i) above and
which is also (x) a day for trading by and between banks in the New York
interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which would be required to be capitalized
in accordance with generally accepted accounting principles, including all
such expenditures with respect to fixed or capital assets (including,
without limitation, expenditures for maintenance and repairs which should
be capitalized in accordance with generally accepted accounting principles)
and, without duplication, the amount of Capitalized Lease Obligations
incurred by such Person.
"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations which, under generally accepted accounting
principles, are or will be required to be capitalized on the books of such
Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii)
U.S. dollar denominated time deposits, certificates of deposit and bankers
acceptances of (x) any Bank and (y) any bank which has, or whose parent
company has, a short-term commercial paper rating from S&P of at least A-1
or the equivalent thereof or from Moody's of at least P-1 or the equivalent
thereof (any such bank or Bank, an "Approved Bank"), in each case with
maturities of not more than one year from the date of acquisition, (iii)
commercial paper issued by any Approved Bank or by the parent company of
any Approved Bank and commercial paper issued by, or guaranteed by, any
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any company with a long term unsecured debt
rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing within six months
after the date of acquisition, (iv) marketable direct obligations issued by
any state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and, at the time of acquisition,
having one of the two highest ratings obtainable from either S&P or Moody's
and (v) investments in money market funds substantially all the assets of
which are comprised of securities of the types described in clauses (i)
through (iv) above.
"Change in Law" shall have the meaning provided in Section
1.10.
"Change of Control" shall mean (i) Vestar Capital Partners IV,
L.P. shall cease to own 100% of the outstanding equity interests of Parent
or (ii) Parent shall cease (other than as a result of the Merger) to
directly own 100% of the outstanding equity interests of the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect on
the date of this Agreement, and to any subsequent provisions of the Code
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal)
with respect to which any security interests have been granted (or
purported to be granted) pursuant to the Pledge Agreement.
"Commitment" shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name on Schedule I directly below the column
entitled "Commitment," as the same may be reduced or terminated pursuant to
Sections 2.02, 2.03 and/or 8.
"Commitment Fee" shall have the meaning provided in Section
2.01(a).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of any such primary obligation or (y) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement,
each Note and the Pledge Agreement.
"Credit Party" shall mean Parent and the Borrower.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Dividends" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to
its stockholders, members or other equity owners or authorized or made any
other distribution, payment or delivery of property or cash (other than
equity interests in such person or rights therefor) to its stockholders,
members or other equity owners as such, or redeemed, retired, purchased or
otherwise acquired, directly or indirectly, for consideration (other than
equity interests in such person or rights therefor) any shares of any class
of its capital stock or other equity securities outstanding on or after the
Initial Borrowing Date (or any options or warrants issued by such Person
with respect to its capital stock or other equity securities), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of
its Subsidiaries to purchase or otherwise acquire for consideration any
shares of any class of the capital stock or other equity securities of such
Person outstanding on or after the Initial Borrowing Date (or any options
or warrants issued by such Person with respect to its capital stock or
other equity securities). "Dividends" with respect to any Person shall not
include payments made or required to be made by such Person with respect to
any management or employee stock or equity appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside
of any funds for the foregoing purposes.
"Documentation Agent" shall mean the Bank (if any) designated
as the Documentation Agent hereunder by the Administrative Agent and
Parent.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Effective Date" shall have the meaning provided in Section
11.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Eurodollar Loan" shall mean each Loan designated as such by a
Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period, (a) the rate appearing on Page 3750 of the
Dow Jones Telerate Screen (or on any successor or substitute page of such
Screen, or any successor to or substitute for such Screen, providing rate
quotations comparable to those currently provided on such page of such
Screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the interbank Eurodollar market) at approximately 11:00 A.M.,
New York time, two Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits with a maturity comparable to such
Interest Period, provided that in the event that such rate is not available
at such time for any reason, then this component of the "Eurodollar Rate"
with respect to such Eurodollar Loan for such Interest Period shall be the
offered quotation to first-class banks in the interbank Eurodollar market
by BTCo for Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar Loan of
BTCo with maturities comparable to the Interest Period applicable to such
Eurodollar Loan commencing two Business Days thereafter as of 11:00
A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period; divided (and rounded off to the
nearest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves required
by applicable law) applicable to any member bank of the Federal Reserve
System in respect of Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
8.
"Federal Funds Rate" shall mean 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 the Administrative
Agent from three Federal Funds brokers of recognized standing selected by
the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 2.01.
"Gleason Credit Agreement" shall mean that certain Credit
Agreement, dated as of the date hereof, among Gleason Corporation, The
Gleason Works, Gleason Germany (Holdings) GmbH, Gleason Works (Holdings)
Limited, Gleason International Marketing Corporation, various lending
institutions party thereto, BTCo, as Administrative Agent, Lead Arranger
and Book Manager, and The Bank of Nova Scotia, as Syndication Agent, as in
effect on the date hereof and without giving effect to any amendments,
modifications or supplements thereto unless any such amendment,
modification or supplement is also consented to in writing by the Required
Banks hereunder.
"Guaranteed Creditors" shall mean and include the
Administrative Agent, the Pledgee, the Banks and each Person (other than
any Credit Party) party to an Interest Rate Protection Agreement or Other
Hedging Agreements to the extent such party constitutes a Secured Creditor
under the Pledge Agreement.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services, (ii) the maximum
amount available to be drawn under all letters of credit issued for the
account of such Person and all unpaid drawings in respect of such letters
of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on
any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person, (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and
similar obligations, (vi) all Contingent Obligations of such Person in
respect of Indebtedness of a type described in clauses (i), (ii), (iii),
(iv) or (vii), and (vii) all net obligations or exposure under any Interest
Rate Protection Agreement or Other Hedging Agreement or under any similar
type of agreement or arrangement, provided that Indebtedness shall not
include trade payables and accrued expenses, in each case arising in the
ordinary course of business.
"Initial Borrowing Date" shall mean the date on which the
initial Borrowing of Loans hereunder occurs.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar
agreement, interest rate hedging agreement, interest rate floor agreement
or other similar agreement or arrangement.
"Lending Affiliate" shall mean, with respect to any Person, any
other Person (i) directly or indirectly controlling (including, but not
limited to, all directors, officers and partners of such Person),
controlled by, or under direct or indirect common control with, such Person
or (ii) that directly or indirectly owns more than 50% of any class of the
voting securities or capital stock of or equity interests in such Person. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other) or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, and any lease having substantially the same
effect as any of the foregoing).
"Loan" shall have the meaning provided in Section 1.01.
"Margin Stock" shall have the meaning provided in Regulation U.
"Maturity Date" shall mean the earlier of (i) 180 days
following the Initial Borrowing Date and (ii) the date on which the Merger
is consummated.
"Merger" shall mean the merger and related transactions between
Gleason Corporation, Parent and the Borrower as described in the Merger
Agreement, whereby the Borrower will merge into Gleason Corporation, with
Gleason Corporation being the surviving corporation.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of December 8, 1999 and amended as of February 3, 2000, by and
among Gleason Corporation, Parent and the Borrower.
"Merger Documents" shall mean the Merger Agreement, and all
documents related to the Merger.
"Minimum Borrowing Amount" shall mean (i) with respect to
Eurodollar Loans, $1,000,000 and (ii) with respect to Base Rate Loans,
$50,000, provided, however, the Minimum Borrowing Amount with respect to
Base Rate Loans the proceeds of which are to be used to pay Commitment Fees
and/or interest owing pursuant to Section 1.08 shall be the amount of such
Commitment Fees and/or interest payable at the time of the incurrence of
such Base Rate Loans.
"Moody's" shall mean Moody's Investors Service, Inc.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Note" shall have the meaning provided in Section 1.05.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of Bankers Trust Company,
as Administrative Agent, located at 130 Liberty Street, New York, New York
10006, or such other office or offices as the Administrative Agent may
designate to the Borrower and the Banks from time to time.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Pledgee or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against fluctuations of
currency values.
"Parent" shall have the meaning provided in the first paragraph
of this Agreement.
"Payment Office" shall mean the office of the Administrative
Agent located at 130 Liberty Street, New York, New York 10006 or such other
office as the Administrative Agent may designate to the Borrower and the
Banks from time to time.
"Permitted Liens" shall have the meaning provided in Section
7.01.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government
or political subdivision or any agency, department or instrumentality
thereof.
"Pledge Agreement" shall have the meaning provided in Section
4.06.
"Pledged Stock" shall have the meaning provided in the Pledge
Agreement.
"Pledgee" shall mean the Administrative Agent acting as
collateral agent pursuant to the Pledge Agreement.
"Pre-Syndication Interest Period" shall mean successive one
week Interest Periods which shall apply to all outstanding Eurodollar Loans
and the first of which shall commence on the Initial Borrowing Date,
provided that no Pre-Syndication Interest Period shall begin after the
Syndication Date.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate
is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. BTCo may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Quarterly Payment Date" shall mean the last Business Day of
each March and June (commencing with the last Business Day of March, 2000).
"Register" shall have the meaning provided in Section 11.14.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof establishing reserve
requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Loans and Commitments constitute greater than 50% of the
sum of the total outstanding Loans and Commitments of Non-Defaulting Banks.
"S&P" shall mean Standard & Poor's Ratings Service.
"SEC" shall have the meaning provided in Section 6.01(c).
"Section 3.04(b)(ii) Certificate" shall have the meaning
provided in Section 3.04(b).
"Secured Creditors" shall have the meaning assigned to that
term in the respective Pledge Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such
Person and/or one or more Subsidiaries of such Person and (ii) any
partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Subsidiaries of such Person
has more than a 50% equity interest at the time; it being understood and
agreed that, in any event, from and after the consummation of the
Transaction, Gleason Corporation shall be deemed to be a Subsidiary of
Parent for purposes of this Agreement.
"Syndication Agent" shall have the meaning provided in the
first paragraph of this Agreement.
"Syndication Date" shall mean the earlier of (x) the 60th day
following the Initial Borrowing Date and (y) that date upon which the
Administrative Agent determines (and notifies the Borrower) that the
primary syndication (and the resultant addition of Persons as Banks
pursuant to Section 11.04) has been completed.
"Tax Benefit" shall have the meaning provided in Section
3.04(c).
"Taxes" shall have the meaning provided in Section 3.04(a).
"Tender Offer" shall mean the offer of Parent and Gleason
Corporation to jointly tender for a portion of the outstanding common stock
of Gleason Corporation for the Tender Offer Price, made pursuant to the
Offer to Purchase dated December 15, 1999 as amended.
"Tender Offer Documents" shall mean the material documentation
related to the Tender Offer, including all public filings made with the SEC
in connection therewith.
"Tender Offer Price" shall mean the price of $23.00 per share
of common stock of Gleason Corporation offered pursuant to the Tender
Offer.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Transaction" shall mean (i) the consummation of the
"Transaction" as defined in the Gleason Credit Agreement, (ii) the
incurrence of the Loans hereunder on the Initial Borrowing Date and (iii)
the payment of fees and expenses in connection with the foregoing.
"Transaction Documents" shall mean the Tender Offer Documents,
the documents governing the Equity Financing and the Merger Documents.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"United States" and "U.S." shall each mean the United States of
America.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock or other equity interests (other
than director's qualifying shares and required by law to be issued to
Persons other than the Borrower and its Wholly-Owned Subsidiaries) is at
the time owned by such Person and/or or more Wholly-Owned Subsidiaries of
such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one
or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest
at such time.
SECTION 10. The Administrative Agent.
10.01 Appointment. The Banks hereby designate BTCo as the
Administrative Agent (for purposes of this Section 10, the term
"Administrative Agent" shall include BTCo in its capacity as Administrative
Agent and as Pledgee pursuant to the Pledge Agreement and any Lending
Affiliate of BTCo performing any of the duties or functions of the
Administrative Agent hereunder or under any other Credit Document) to act
as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of
such Note shall be deemed irrevocably to authorize, the Administrative
Agent to take such action on its behalf under the provisions of this
Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof
and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through
its respective officers, directors, agents, employees or affiliates.
10.02 Nature of Duties. The Administrative Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and in the other Credit Documents. Neither the Administrative
Agent nor any of its respective officers, directors, agents, employees or
affiliates shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent shall be mechanical and
administrative in nature; the Administrative Agent shall not have by reason
of this Agreement or any other Credit Document a fiduciary relationship in
respect of any Bank or the holder of any Note; and nothing in this
Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or any other Credit Document
except as expressly set forth herein or therein.
10.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank
and the holder of each Note, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of Parent and the Borrower in connection
with the making and the continuance of the Loans and the taking or not
taking of any action in connection herewith and (ii) its own appraisal of
the creditworthiness of Parent and the Borrower and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any
duty or responsibility, either initially or on a continuing basis, to
provide any Bank or the holder of any Note 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. The
Administrative Agent shall not be responsible to any Bank or the holder of
any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority
or sufficiency of this Agreement or any other Credit Document or the
financial condition of Parent and the Borrower or be required to make any
inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Parent and the Borrower or the
existence or possible existence of any Default or Event of Default.
10.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks
with respect to any act or action (including failure to act) in connection
with this Agreement or any other Credit Document, the Administrative Agent
shall be entitled to refrain from such act or taking such action unless and
until the Administrative Agent shall have received instructions from the
Required Banks; and the Administrative Agent shall not incur liability to
any Bank or the holder of any Note by reason of so refraining. Without
limiting the foregoing, no Bank or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Banks.
10.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed
to be the proper Person, and, with respect to all legal matters pertaining
to this Agreement and any other Credit Document and its duties hereunder
and thereunder, upon advice of counsel selected by the Administrative
Agent.
10.06 Indemnification. (a) To the extent the Administrative
Agent is not reimbursed and indemnified by the Borrower, the Banks will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Required Banks
(determined as if there were no Defaulting Banks), for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its respective duties hereunder or under any other
Credit Document, in any way relating to or arising out of this Agreement or
any other Credit Document; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Administrative Agent's gross negligence or willful misconduct.
(b) The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Credit
Document (except actions expressly required to be taken by it hereunder or
under the Credit Documents) unless it shall first be indemnified to its
satisfaction by the Banks pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any
such action.
10.07 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for
a "Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required
Banks," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Credit Party or any Affiliate of any Credit Party as if
it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrowers or any other Credit Party for
services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
10.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof,
as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is the holder of any Note
shall be conclusive and binding on any subsequent holder, transferee,
assignee or indorsee, as the case may be, of such Note or of any Note or
Notes issued in exchange therefor.
10.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Credit Documents at any time by
giving 15 Business Days' prior written notice to the Borrower and the
Banks. Such resignation shall take effect upon the appointment of a
successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks
shall appoint a successor Administrative Agent hereunder and under the
other Credit Documents who shall be a Bank, a commercial bank or a trust
company in each case reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent,
with the consent of the Borrower, shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent hereunder and
under the other Credit Documents until such time, if any, as the Required
Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Banks
shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any of the Credit Document until such time, if any,
as the Required Banks appoint a successor Administrative Agent as provided
above.
10.10 Documentation Agent; Syndication Agent. Nothing in this
Agreement shall impose on the Documentation Agent or the Syndication Agent,
in each case in such capacity, any duties or obligations.
SECTION 11. Miscellaneous.
11.01 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay
all reasonable out-of-pocket costs and expenses of the (A) Administrative
Agent (for purposes of this Section 11.01, the term "Administrative Agent"
shall include BTCo in its capacity as Pledgee pursuant to the Pledge
Agreement) (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein
and (B) Administrative Agent (including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent) in
connection with any amendment, waiver or consent relating hereto or
thereto, and the determination of compliance or non- compliance by the
Credit Parties with the provisions hereof or thereof, (C) Administrative
Agent in connection with its syndication efforts with respect to this
Agreement (including, without limitation, the reasonable fees and
disbursements of White & Case LLP), (D) Administrative Agent and each of
the Banks in connection with the enforcement of this Agreement and the
other Credit Documents and the documents and instruments referred to herein
and therein (including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent and for each of the
Banks) and (E) the Administrative Agent in connection with the release of
any Collateral pursuant to Section 18(b) of the Pledge Agreement; (ii) pay
and hold each of the Banks harmless from and against any and all present
and future stamp, excise and other similar taxes with respect to the
execution, delivery or enforcement of this Agreement or any other Credit
Document or any document or instrument referred to therein or herein and
save each of the Banks harmless from and against any and all liabilities
with respect to or resulting from any delay or omission (other than to the
extent attributable to such Bank) to pay such taxes; and (iii) defend,
protect, indemnify and hold harmless the Administrative Agent, each Bank
and each of their respective Affiliates, and each of their respective
officers, directors, employees, representatives, attorneys and
Administrative Agents (collectively called the "Indemnitees") from and
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages (including foreseeable and unforeseeable
consequential damages and punitive damages), penalties, claims, actions,
judgments, suits, reasonable out-of-pocket costs, expenses and
disbursements (including reasonable attorneys' and consultants fees and
disbursements) of any kind or nature whatsoever that may at any time be
incurred by, imposed on or assessed against the Indemnitees directly or
indirectly based on, or arising or resulting from, or in any way related
to, or by reason of (a) any investigation, litigation or other proceeding
(whether or not the Administrative Agent, the Pledgee or any Bank is a
party thereto and whether or not any such investigation, litigation or
other proceeding is between or among the Administrative Agent, the Pledgee,
any Bank, the Borrower or any third person or otherwise) related to the
entering into and/or performance of this Agreement or any other Credit
Document or the proceeds of any Loans hereunder or the consummation of any
transactions contemplated herein (including, without limitation, the
Transaction) or in any other Credit Document or the exercise of any of
their rights or remedies provided herein or in the other Credit Documents;
(b) the exercise of the rights of the Administrative Agent and of any Bank
under any of the provisions of this Agreement or any other Credit Document
any Loans hereunder; or (c) the consummation of any transaction
contemplated herein (including, without limitation, the Transaction) or in
any other Credit Document (clauses (a) through (c), collectively, the
"Indemnified Matters") regardless of when such Indemnified Matter arises;
but excluding any such Indemnified Matter to the extent based on the gross
negligence or willful misconduct of any Indemnitee.
11.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Bank is hereby authorized at any
time or from time to time, without presentment, demand, protest or other
notice of any kind to any Credit Party or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness
at any time held or owing by such Bank (including, without limitation, by
branches and agencies of such Bank wherever located) to or for the credit
or the account of the Borrower against and on account of the Obligations
and liabilities of the Borrower to such Bank under this Agreement or under
any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Bank pursuant to Section
11.06(b), and all other claims of any nature or description arising out of
or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and
although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
11.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including facsimile communication) and mailed, telecopied or
delivered: if to any Credit Party, at its address specified opposite its
signature below; if to any Bank, at its address specified on Schedule II;
and if to the Administrative Agent, at its Notice Office; or, as to any
Credit Party or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties hereto
and, as to each Bank, at such other address as shall be designated by such
Bank in a written notice to the Borrower and the Administrative Agent. All
such notices and communications shall, when mailed, facsimiled or sent by
overnight courier, be effective three Business Days after deposited in the
mails, certified, return receipt requested, one day following delivery to
an overnight courier, as the case may be, or when sent by facsimile device,
except that notices and communications to the Administrative Agent shall
not be effective until received by the Administrative Agent.
11.04 Benefit of Agreement. (a) This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written
consent of all of the Banks; and provided further, that although any Bank
may grant participations in its rights hereunder, such Bank shall remain a
"Bank" for all purposes hereunder (and may not transfer or assign all or
any portion of its Commitments or Loans hereunder except as provided in
Section 11.04(b)) and the participant shall not constitute a "Bank"
hereunder; and provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document
except to the extent such amendment or waiver would (i) extend the final
scheduled maturity of any Loan or Note in which such participant is
participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount
thereof, or increase the Commitments in which such participant is
participating over the amount thereof then in effect (it being understood
that a waiver of any conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the Total Commitment shall not
constitute an increase of the Commitment in which any participant is
participating, that an increase in the available portion of any Commitment
of any Bank shall not constitute an increase in the Commitment in which any
participant is participating, and that an increase in any Commitment shall
be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement or (iii) release all or substantially all
of the Collateral (except as expressly provided in the Pledge Agreement).
In the case of any such participation, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such
participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of
its Commitment and/or its outstanding Loans to (i) its parent company
and/or any Lending Affiliate of such Bank or to one or more Banks or (ii)
in the case of any Bank 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 of such Bank or by a Lending Affiliate of such investment advisor
or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of
such Commitment and/or outstanding principal amount of Loans to one or more
Eligible Transferees (treating (x) any fund that invests in bank loans and
(y) any other fund that invests in bank loans and is managed by the same
investment advisor as such fund or by a Lending Affiliate of such
investment advisor, as a single Eligible Transferee), each of which
assignees shall become a party to this Agreement as a Bank by execution of
an Assignment and Assumption Agreement substantially in the form of Exhibit
G, provided that (i) at such time Schedule I shall be deemed modified to
reflect the Commitment and/or outstanding Loans, as the case may be, of
such new Bank and of the existing Banks, (ii) if requested by the assigning
Bank or the assignee Bank, upon surrender of the old Notes (with the old
Notes of the assigning Bank to be marked "Canceled") (or the furnishing of
a standard indemnity letter from the respective assigning Bank in respect
of any lost Notes reasonably acceptable to Parent), new Notes will be
issued, at the Borrower's expense, to such new Bank and to the assigning
Bank, such new Notes to be in conformity with the requirements of Section
1.05 (with appropriate modifications) to the extent needed to reflect the
revised Commitments and/or outstanding Loans, as the case may be, (iii) the
consent of the Administrative Agent and, so long as no Event of Default
exists, the Borrower shall be required in connection with any assignment to
an Eligible Transferee pursuant to clause (y) of this Section 11.04(b)
(which consent, in each case, shall not be unreasonably withheld or
delayed), and (iv) the Administrative Agent shall receive at the time of
each assignment, from the assigning or assignee Bank, the payment of a
non-refundable assignment fee of $3,500 and, provided further, that such
transfer or assignment will not be effective until recorded by the
Administrative Agent on the Register pursuant to Section 11.14. To the
extent of any assignment pursuant to this Section 11.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Commitment and/or outstanding Loans. At the time of each
assignment pursuant to this Section 11.04(b) to a Person which is not
already a Bank hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes, the respective assignee Bank shall provide to the Borrower
and the Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable, a Section 3.04(b)(ii) Certificate) described in
Section 3.04(b). To the extent that an assignment of all or any portion of
a Bank's Commitment and outstanding Obligations pursuant to Section 1.13 or
this Section 11.04(b) would, due to circumstances existing at the time of
such assignment, result in increased costs under Section 1.10, 1.11 or 3.04
from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of
the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank or BTCo from pledging its Loans and Notes hereunder to a Federal
Reserve Bank in support of borrowings made by such Bank from such Federal
Reserve Bank and, with the consent of the Administrative Agent, any Bank
which is a fund may pledge all or any portion of its Notes or Loans to its
trustee in support of its obligations to its trustee. No pledge pursuant to
this clause (c) shall release the transferor Bank from any of its
obligations hereunder.
11.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank or any holder of any Note
in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between any Credit Party and the
Administrative Agent or any Bank or the holder of any Note shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right,
power or privilege hereunder or thereunder. The rights, powers and remedies
herein or in any other Credit Document expressly provided are cumulative
and not exclusive of any rights, powers or remedies which the
Administrative Agent or any Bank or the holder of any Note would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle
any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the
Administrative Agent or any Bank or the holder of any Note to any other or
further action in any circumstances without notice or demand.
11.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of the
Borrower in respect of any Obligations hereunder, it shall distribute such
payment to the Banks pro rata based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise), which is applicable to the payment of the
principal of, or interest on, the Loans, Commitment Fees or other Fees, of
a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and
due to such Bank bears to the total of such Obligation then owed and due to
all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all the Banks in such amount; provided that
if all or any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, but without interest.
11.07 Computations. (a) All computations of interest and Fees
hereunder shall be made on the basis of a year of 360 days (365-366 days in
the case of interest on Base Rate Loans maintained at the Prime Lending
Rate) for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or Fees are
payable.
11.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. Any legal action or proceeding with respect to this Agreement or any
other Credit Document may be brought in the Courts of the State of New York
or of the United States for the Southern District of New York, and, by
execution and delivery of this agreement, each Credit Party hereby
irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid Courts. Each Credit
Party hereby further irrevocably waives any claim that such courts lack
jurisdiction over such Credit Party, and agrees not to plead or claim, in
any legal action or proceeding with respect to this Agreement or any other
Credit Document brought in any of the aforesaid courts, that any such court
lacks jurisdiction over such Credit Party. Each Credit Party irrevocably
consents to the service of process out of any of the aforementioned Courts
in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Credit at its
address set forth opposite its signatures below, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right
of the Administrative Agent under this Agreement, any Bank or the holder of
any Note to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Credit Party in
any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other credit document brought in the Courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such Court that any such action or proceeding brought
in any such Court has been brought in an inconvenient forum.
(c) Each of the parties to this Agreement hereby irrevocably
waives all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement, the other Credit
Documents or the transactions contemplated hereby or thereby.
11.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with Parent and the Administrative Agent.
11.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which Parent, the Borrower and each of
the Banks shall have signed a copy hereof (whether the same or different
copies) and shall have delivered the same to the Administrative Agent at
its Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or
facsimile transmission notice (actually received) in accordance with
Section 11.03 at such office that the same has been signed and mailed to
it.
11.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
11.12 Amendment or Waiver. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party
thereto and the Required Banks; provided that no such change, waiver,
discharge or termination shall, without the consent of each Bank directly
affected thereby: (i) extend the final scheduled maturity of any Loan or
Note, or reduce the rate or extend the time of payment of interest or Fees
thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates), or reduce the principal amount
thereof; (ii) release all or substantially all of the Collateral (except as
expressly provided in the Pledge Agreement); (iii) amend, modify or waive
any provision of Section 11.06 or this Section 11.12; (iv) reduce the
percentage specified in, or otherwise modify, the definition of Required
Banks (it being understood that, with the consent of the Required Banks,
extensions of credit pursuant to this Agreement in addition to those set
forth in or contemplated by this Agreement on the Effective Date may be
included in the determination of the Required Banks on substantially the
same basis as the extensions of Loans and Commitments are included on the
Effective Date); or (v) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall: (1)
increase the Commitments of any Bank over the amount thereof then in effect
(it being understood that a waiver of any conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitment shall not constitute an increase of the Commitment of any Bank,
and that an increase in the available portion of any Commitment of any Bank
shall not constitute an increase in the Commitment of such Bank) without
the consent of such Bank; (2) without the consent of each Agent, amend,
modify or waive any provision of Section 10 or any other provision relating
to the rights or obligations of such Agent; (3) without the consent of the
Pledgee, amend, modify or waive any provision of Section 10 or any other
provision relating to the rights or obligations of the Pledgee.
(b) If, in connection with any proposed change, waiver,
discharge or termination with respect to any of the provisions of this
Agreement as contemplated by clauses (i) through (v), inclusive, of the
first proviso to Section 11.12(a), the consent of the Required Banks is
obtained but the consent of one or more of such other Banks whose consent
is required is not obtained, then the Borrower shall have the right to
replace each such non-consenting Bank or Banks (so long as all
non-consenting Banks are so replaced) with one or more Replacement Banks
pursuant to Section 1.13 so long as at the time of such replacement, each
Replacement Bank consents to the proposed change, waiver, discharge or
termination, provided that the Borrower shall not have the right to replace
a Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to the second
proviso to Section 11.12(a).
11.13 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 11.13, each Bank agrees that it will use its reasonable
efforts not to disclose without the prior consent of the Borrower (other
than to its employees, auditors, advisors or counsel or to another Bank if
such Bank or such Bank's holding or parent company in its sole discretion
determines that any such party should have access to such information,
provided such Persons shall be subject to the provisions of this Section
11.13 to the same extent as such Bank) any information with respect to
Parent or any of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document and which is
designated by the Borrower to the Banks in writing as confidential or would
customarily be treated as confidential in banking practice, provided that
any Bank may disclose any such information (a) as has become generally
available to the public, (b) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Bank or
to the Federal Reserve Board or the Federal Deposit Insurance Corporation
or similar organizations (whether in the United States or elsewhere) or
their successors, (c) as may be required or appropriate in respect to any
summons or subpoena or in connection with any litigation, (d) in order to
comply with any law, order, regulation or ruling applicable to such Bank,
(e) to the Administrative Agent or the Pledgee and (f) to any prospective
or actual transferee or participant (or its investment advisor) in
connection with any contemplated transfer or participation of any of the
Notes or Commitments or any interest therein by such Bank, provided that
such prospective transferee agrees to maintain the confidentiality
contained in this Section.
(b) Each Credit Party hereby acknowledges and agrees that each
Bank may share with any of its Lending Affiliates any information related
to any Credit Party (including, without limitation, any nonpublic customer
information regarding the creditworthiness of any Credit Party and its
Subsidiaries, provided such Persons shall be subject to the provisions of
this Section 11.13 to the same extent as such Bank).
11.14 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes
of this Section 11.14, to maintain a register (the "Register") on which it
will record the Commitments from time to time of each of the Banks, the
Loans made by each of the Banks and each repayment in respect of the
principal amount of the Loans of each Bank. Failure to make any such
recordation, or any error in such recordation, shall not affect the
respective Borrower's obligations in respect of such Loans. With respect to
any Bank, the transfer of the Commitments of such Bank and the rights to
the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership
of such Commitments and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of the assignment or
transfer of all or part of any Commitments and Loans shall be recorded by
the Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 11.04(b). Coincident with the
delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of the assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable,
the assigning or transferor Bank shall surrender the Note evidencing such
Loan, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the assigning or transferor Bank and/or the new
Bank. The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 11.14
other than those resulting from the Administrative Agent's willful
misconduct or gross negligence.
11.15 Termination. This Agreement shall terminate on the date
on which the Total Commitment shall have terminated, and all Loans and
Notes, together with all accrued but unpaid interest, fees and other
Obligations shall have been indefeasibly paid in full in cash, provided
that all indemnities set forth herein including, without limitation, in
Sections 1.10, 1.11, 3.04, 11.01 and 11.06 shall survive the termination of
this Agreement.
11.16 No Recourse. No shareholder or member of Parent shall
have any liability for any obligations of Parent under this Agreement or
any other Credit Documents.
11.17 No Obligations of Parent Following the Merger. Upon the
consummation of the Merger, all obligations and covenants of Parent
hereunder shall terminate.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
Address:
245 Park Avenue, 41st Floor TORQUE ACQUISITION CO., L.L.C.
New York, New York 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy By: /s/ Sander Levy
---------------------------------
Title: President
245 Park Avenue, 41st Floor TORQUE MERGER SUB, INC.
New York, New York 10167
Telephone No.: (212) 351-1600
Telecopy No.: (212) 808-4922
Attention: Sander M. Levy By: /s/ Sander Levy
---------------------------------
Title: President
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /s/ Susan L. LeFevre
---------------------------------
Title: Director
DEUTSCHE BANK LUXEMBOURG S.A.,
Individually and as Administrative Agent
By: /s/ Michael Groth
---------------------------------
Title: Managing Director
By: /s/ Christoph Guntzer
---------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA,
Individually and as Syndication Agent
By: /s/ Todd S. Meller
---------------------------------
Name: Todd S. Meller
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ Thomas J. Flanagan
---------------------------------
Name: Thomas J. Flanagan
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Andrew Payne
---------------------------------
Name: Andrew Payne
Title: Vice President
BANK POLSKA KASA OPLEKI S.A.,
New York Branch
By: /s/ Hussein B. El-Tawil
---------------------------------
Name: Hussein B. El-Tawil
Title: Vice President
MANUFACTURERS & TRADERS TRUST COMPANY,
By: /s/ William E. Holston
---------------------------------
Name: William E. Holston
Title: Vice President
Exhibit 99.3
GLEASON
For Further Information, Contact:
SANDER M. LEVY
Vestar Capital Partners
(212) 351-1610
John J. Perrotti
Vice President - Finance & Treasurer
(716) 461-8105
Gleason Corporation
1000 University Avenue
P.O. Box 22970
Rochester, New York USA 14692-2970
For Immediate Release
GLEASON CORPORATION AND TORQUE ACQUISITION CO., L.L.C.
ANNOUNCE ACCEPTANCE FOR PURCHASE AND
PAYMENT OF SHARES OF GLEASON CORPORATION
ROCHESTER, NY, FEBRUARY 18, 2000 - Torque Acquisition Co., L.L.C.
("Acquisition Company"), a wholly owned subsidiary of Vestar Capital
Partners IV, L.P., and Gleason Corporation (NYSE: GLE) (the "Company" and,
together with Acquisition Company, the "Purchasers") announced today that
they have accepted for purchase and payment pursuant to their joint tender
offer to purchase all of the outstanding shares of common stock, par value
$1.00 per share, together with the associated preferred share purchase
rights, of the Company, at a purchase price of $23.00 per share, all shares
of the Company which were validly tendered and not withdrawn as of the
expiration of the tender offer at 12:00 midnight, New York City time, on
February 17, 2000. Based on information provided by ChaseMellon Shareholder
Services, L.L.C., the depositary for the offer, 5,771,399 shares (including
37,232 shares tendered pursuant to notices of guaranteed delivery), or
approximately 71.5% of the public shares available to be tendered, were
validly tendered pursuant to the tender offer and not withdrawn.
The tender offer will be followed by a merger between the Company and
Torque Merger Sub, Inc., a wholly owned subsidiary of Acquisition Company.
Pursuant to the merger, the public stockholders of the Company who did not
tender their shares in the offer and who do not seek appraisal of their
shares pursuant to the applicable provisions of Delaware law will have
their shares converted into the right to receive the same $23.00 per share.
A special meeting of the Company's shareholders to vote upon the merger is
expected to be held in late March 2000. As a result of the purchase of
shares in the offer, a favorable vote on the merger is assured.
The Company's principal business activity is the development,
manufacture and sale of gear production machinery and related equipment.
The gears produced by the Company's machines are used in drive trains of
automobiles, sport utility vehicles, trucks, buses, aircraft and marine,
agricultural and construction machinery. The Company has manufacturing
operations in Rochester, New York; Rockford, Illinois; Plymouth, England;
Munich and Ludwigsburg, Germany; Bangalore, India; and Biel, Switzerland,
and has sales and service offices throughout the United States and Europe
and in the Asia-Pacific region.
MORE INFORMATION ABOUT GLEASON CORPORATION IS AVAILABLE ON THE WORLD
WIDE WEB AT HTTP://WWW.GLEASON.COM
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