<PAGE> 1
EXHIBIT 10.1
CREDIT AGREEMENT
among
UNITED STATES CAN COMPANY,
as Borrower,
U.S. CAN CORPORATION
and
DOMESTIC SUBSIDIARIES OF U.S. CAN CORPORATION,
as Domestic Guarantors,
THE LENDERS IDENTIFIED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITICORP NORTH AMERICA, INC.,
as Syndication Agent
and
BANK ONE, NA
(MAIN OFFICE CHICAGO)
as Documentation Agent
DATED AS OF OCTOBER 4, 2000
Arranged by:
BANC OF AMERICA SECURITIES LLC
and
SALOMON SMITH BARNEY INC.,
as Joint-Lead Arrangers and
Joint-Book Managers
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS........................................................................1
1.1 Definitions.......................................................................................1
1.2 Computation of Time Periods and Other Definitional Provisions....................................33
1.3 Accounting Terms; Calculations...................................................................33
1.4 Time.............................................................................................34
SECTION 2 CREDIT FACILITIES......................................................................................34
2.1 Revolving Loans..................................................................................34
2.2 Letter of Credit Subfacility.....................................................................36
2.3 Tranche A Term Loans.............................................................................42
2.4 Tranche B Term Loans.............................................................................44
2.5 Swing Line Loans Subfacility.....................................................................46
2.6 Foreign Currency Loans Subfacility...............................................................47
2.7 Continuations and Conversions....................................................................52
2.8 Minimum Amounts..................................................................................53
2.9 Currency Equivalents.............................................................................53
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT...........................................54
3.1 Interest.........................................................................................54
3.2 Place and Manner of Payments.....................................................................54
3.3 Prepayments......................................................................................55
3.4 Fees.............................................................................................57
3.5 Payment in Full at Maturity......................................................................58
3.6 Computations of Interest and Fees................................................................59
3.7 Pro Rata Treatment...............................................................................60
3.8 Sharing of Payments..............................................................................61
3.9 Capital Adequacy.................................................................................62
3.10 Inability To Determine Interest Rate.............................................................62
3.11 Illegality.......................................................................................63
3.12 Requirements of Law..............................................................................63
3.13 Taxes............................................................................................64
3.14 Indemnity........................................................................................67
3.15 Substitution of Lender; Relocation...............................................................67
3.16 All Borrowers Treated Equally....................................................................68
3.17 Limitation on Making Claims......................................................................68
SECTION 4 DOMESTIC GUARANTY......................................................................................68
4.1 Guaranty of Payment..............................................................................68
4.2 Obligations Unconditional........................................................................69
4.3 Modifications....................................................................................70
4.4 Waiver of Rights.................................................................................70
4.5 Reinstatement....................................................................................70
4.6 Remedies.........................................................................................71
4.7 Limitation of Guaranty...........................................................................71
4.8 Rights of Contribution...........................................................................71
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5 CONDITIONS PRECEDENT...................................................................................71
5.1 Closing Conditions...............................................................................71
5.2 Conditions to All Extensions of Credit...........................................................78
SECTION 6 REPRESENTATIONS AND WARRANTIES.........................................................................80
6.1 Financial Condition..............................................................................80
6.2 No Material Change...............................................................................80
6.3 Organization and Good Standing...................................................................80
6.4 Due Authorization................................................................................80
6.5 No Conflicts.....................................................................................81
6.6 Consents.........................................................................................81
6.7 Enforceable Obligations..........................................................................81
6.8 No Default.......................................................................................81
6.9 Ownership........................................................................................82
6.10 Indebtedness.....................................................................................82
6.11 Litigation.......................................................................................82
6.12 Taxes............................................................................................82
6.13 Compliance with Law..............................................................................82
6.14 ERISA............................................................................................82
6.15 Subsidiaries.....................................................................................84
6.16 Use of Proceeds..................................................................................84
6.17 Government Regulation............................................................................84
6.18 Environmental Matters............................................................................85
6.19 Intellectual Property............................................................................86
6.20 Solvency.........................................................................................87
6.21 Investments......................................................................................87
6.22 Disclosure; Projections..........................................................................87
6.23 Licenses, etc....................................................................................87
6.24 No Burdensome Restrictions.......................................................................87
6.25 Broker's Fees....................................................................................87
6.26 Labor Matters....................................................................................88
6.27 Location of Collateral...........................................................................88
6.28 Collateral Documents.............................................................................88
6.29 Insurance........................................................................................88
6.30 Representations and Warranties from Merger Agreement.............................................88
6.31 Immunity.........................................................................................88
6.32 Proper Legal Form................................................................................89
6.33 Material Contracts...............................................................................89
SECTION 7 AFFIRMATIVE COVENANTS..................................................................................89
7.1 Information Covenants............................................................................89
7.2 Preservation of Existence and Franchises.........................................................94
7.3 Books and Records................................................................................94
7.4 Compliance with Law..............................................................................94
7.5 Payment of Taxes and Other Indebtedness..........................................................94
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
7.6 Insurance/Condemnation...........................................................................95
7.7 Maintenance of Property..........................................................................96
7.8 Performance of Obligations.......................................................................96
7.9 Use of Proceeds..................................................................................96
7.10 Audits/Inspections...............................................................................97
7.11 Financial Covenants..............................................................................97
7.12 Collateral.......................................................................................98
7.13 Additional Credit Parties........................................................................98
7.14 Third Party Consents............................................................................100
7.15 Interest Rate Protection Agreements.............................................................100
7.16 Post-Closing Deliveries.........................................................................100
SECTION 8 NEGATIVE COVENANTS....................................................................................101
8.1 Indebtedness....................................................................................102
8.2 Liens...........................................................................................103
8.3 Nature of Business..............................................................................104
8.4 Consolidation and Merger........................................................................104
8.5 Sale or Lease of Assets.........................................................................104
8.6 Advances, Investments and Loans.................................................................105
8.7 Restricted Payments.............................................................................105
8.8 Transactions with Affiliates....................................................................106
8.9 Fiscal Year; Organizational Documents...........................................................107
8.10 Other Indebtedness; Material Agreements.........................................................107
8.11 Limitations.....................................................................................107
8.12 Sale Leasebacks.................................................................................108
8.13 Negative Pledges................................................................................108
8.14 Capital Expenditures............................................................................109
8.15 Parent..........................................................................................109
8.16 Management Fees.................................................................................109
SECTION 9 EVENTS OF DEFAULT.....................................................................................110
9.1 Events of Default...............................................................................110
9.2 Acceleration; Remedies..........................................................................113
9.3 Allocation of Payments After Event of Default...................................................114
SECTION 10 AGENCY PROVISIONS....................................................................................115
10.1 Appointment.....................................................................................115
10.2 Delegation of Duties............................................................................116
10.3 Exculpatory Provisions..........................................................................116
10.4 Reliance on Communications......................................................................116
10.5 Notice of Default...............................................................................117
10.6 Non-Reliance on Agents and Other Lenders........................................................117
10.7 Indemnification.................................................................................118
10.8 Agents in Their Individual Capacity.............................................................118
10.9 Successor Agent.................................................................................118
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
SECTION 11 MISCELLANEOUS........................................................................................119
11.1 Notices.........................................................................................119
11.2 Right of Set-Off................................................................................119
11.3 Benefit of Agreement............................................................................120
11.4 No Waiver; Remedies Cumulative..................................................................122
11.5 Payment of Expenses; Indemnification............................................................123
11.6 Amendments, Waivers and Consents................................................................123
11.7 Counterparts/Telecopy...........................................................................125
11.8 Headings........................................................................................125
11.9 Defaulting Lender...............................................................................125
11.10 Survival of Indemnification and Representations and Warranties..................................126
11.11 Governing Law; Venue; Foreign Credit Parties....................................................126
11.12 Waiver of Jury Trial; Waiver of Consequential Damages...........................................127
11.13 Judgment Currency...............................................................................128
11.14 Severability....................................................................................128
11.15 Entirety........................................................................................128
11.16 Binding Effect..................................................................................129
11.17 Confidentiality.................................................................................129
11.18 Further Assurances..............................................................................130
</TABLE>
iv
<PAGE> 6
SCHEDULES
<TABLE>
<S> <C>
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Pro Forma EBITDA Adjustments
Schedule 2.2(c) Existing Letters of Credit
Schedule 2.6 Foreign Currency Lenders
Schedule 3.1 MLA Costs
Schedule 5.1(f)(i) Mortgaged Properties
Schedule 5.1(v) Contractual Restrictions
Schedule 6.12 Tax Assessments
Schedule 6.15 Subsidiaries
Schedule 6.19 Intellectual Property
Schedule 6.22 Supplemental Disclosure to Offering Memorandum
Schedule 6.26 Labor Matters
Schedule 6.27(a) Real Property Locations
Schedule 6.27(b) Personal Property Locations
Schedule 6.27(c) Chief Executive Office
Schedule 6.29 Insurance
Schedule 6.33 Material Contracts
Schedule 8.1 Indebtedness
Schedule 8.2 Liens
Schedule 8.6 Investments
Schedule 8.11 Existing Restrictions
Schedule 11.1 Notices
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(d) Form of Tranche A Term Note
Exhibit 2.4(d) Form of Tranche B Term Note
Exhibit 2.5(b) Form of Swing Line Loan Request
Exhibit 2.5(d) Form of Swing Line Loan Note
Exhibit 2.6(b) Form of Foreign Currency Notice of Borrowing
Exhibit 2.6(f) Form of Foreign Joinder Agreement
Exhibit 2.7 Form of Notice of Continuation/Conversion
Exhibit 7.1(d) Form of Officer's Certificate
Exhibit 7.13(a) Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
</TABLE>
v
<PAGE> 7
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
October 4, 2000 among UNITED STATES CAN COMPANY, a Delaware corporation (the
"Borrower"), U.S. CAN CORPORATION, a Delaware corporation (the "Parent"), each
of the Domestic Subsidiaries (as defined below) of the Parent, the Lenders (as
defined herein), BANK OF AMERICA, N.A., as Administrative Agent for the Lenders
(in such capacity, the "Administrative Agent"), CITICORP NORTH AMERICA, INC., as
Syndication Agent for the Lenders (in such capacity, the "Syndication Agent")
and BANK ONE, NA (Main Office Chicago), as Documentation Agent for the Lenders.
RECITALS
WHEREAS, the Borrower has requested that the Lenders provide credit
facilities in an aggregate amount of $400 million (the "Credit Facilities") for
the purposes hereinafter set forth; and
WHEREAS, the Lenders have agreed to make the requested Credit
Facilities available to the Borrower on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition" means the acquisition by any Person of (a) the
Capital Stock of another Person (b) all or substantially all of the
assets of another Person or (c) all or substantially all of a line of
business of another Person, in each case whether or not involving a
merger or consolidation with such other Person.
"Additional Domestic Credit Party" means each Person that
becomes a Domestic Guarantor after the Closing Date, as provided in
Section 7.13(a).
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurocurrency Rate" means the Eurocurrency Rate plus
the Applicable Percentage.
1
<PAGE> 8
"Adjusted Pro Forma Consolidated EBITDA" has the meaning set
forth in Section 5.1(o).
"Adjusted Pro Forma Financial Statements" has the meaning set
forth in Section 5.1(c).
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof or any successor administrative agent
appointed pursuant to Section 10.9.
"Agency Services Address" means Bank of America, N.A., Agency
Management 101 N. Tryon Street, 15th Floor, Charlotte, North Carolina
28255 Attn: Agency Services, or such other address as may be identified
by written notice from the Administrative Agent to the Borrower.
"Agents" mean the Administrative Agent, the Syndication Agent,
the Collateral Agent and any successors and assigns in such capacity.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such corporation
or (ii) to direct or cause direction of the management and policies of
such corporation, whether through the ownership of voting securities,
by contract or otherwise.
"Annualized Adjustments" means that, subsequent to the Closing
Date, the Interest Coverage Ratio and the Fixed Charge Coverage Ratio
shall be calculated using the adjustments and assumptions set forth
below:
Interest Expense and Cash Taxes will be calculated commencing
after the Closing Date as follows:
(a) for the partial fiscal quarter that occurs
immediately subsequent to the Closing Date and for the first
three full fiscal quarters subsequent to the Closing Date,
Interest Expense and Cash Taxes, for the quarter ending on
such date, shall be multiplied times a ratio equal to (i) 365
divided by (ii) the number of days elapsed since the Closing
Date until the last day of the quarter for which such
calculation is being made; and
(b) for the fourth full fiscal quarter subsequent to
the Closing Date and each fiscal quarter end thereafter,
Interest Expense and Cash Taxes shall be the actual amounts
for the four quarter period ending on such date.
2
<PAGE> 9
"Applicable Percentage" means:
(a) for Revolving Loans, Tranche A Term Loans and
Letter of Credit Fees, the appropriate applicable percentages
corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date as shown below:
<TABLE>
<CAPTION>
Applicable Percentage for Revolving Loans
and Tranche A Term Loans Applicable
------------------------------------------ Percentage for
Pricing Leverage Eurocurrency Letter of Credit
Level Ratio Loans Base Rate Loans Fees
------- -------- ------------ --------------- ----------------
<S> <C> <C> <C> <C>
I > or equal to 4.75 to 1.0 3.25% 2.25% 3.25%
II < 4.75 to 1.0 but 3.00% 2.00% 3.00%
> or equal to 4.50 to 1.0
III < 4.50 to 1.0 but 2.75% 1.75% 2.75%
> or equal to 4.0 to 1.0
IV < 4.0 to 1.0 but 2.50% 1.50% 2.50%
> or equal to 3.50 to 1.0
V < 3.50 to 1.00 2.25% 1.25% 2.25%
</TABLE>
The Applicable Percentage for Revolving Loans,
Tranche A Term Loans and Letter of Credit Fees shall, in each
case, be determined and adjusted quarterly on the date (each a
"Calculation Date") five Business Days after the date by which
the Borrower is required to provide the Officer's Compliance
Certificate; provided that the Applicable Percentage for
Revolving Loans, Tranche A Term Loans and Letter of Credit
Fees shall be based on Pricing Level I (as shown above) and
shall remain at Pricing Level I until the first Calculation
Date subsequent to March 31, 2001 and thereafter, such
Applicable Percentage shall be determined by the then current
Leverage Ratio; and provided further that if the Borrower
fails to provide the Officer's Compliance Certificate on or
before the most recent Calculation Date, the Applicable
Percentage for Revolving Loans, Tranche A Term Loans and
Letter of Credit Fees from such Calculation Date shall be
based on Pricing Level I until such time that an appropriate
Officer's Compliance Certificate is provided whereupon such
Applicable Percentage shall be determined by the then current
Leverage Ratio. Each such Applicable Percentage shall be
effective from one Calculation Date until the next Calculation
Date except as set forth in the prior sentence.
(b) for Tranche B Term Loans, 3.50% for Tranche B
Term Loans that are Eurocurrency Loans and 2.50% for Tranche B
Term Loans that are Base Rate Loans; provided that if the
Borrower has a Debt Rating of BB or better from S&P and a Debt
Rating of Ba2 or better from Moody's, 3.25% for Tranche B Term
Loans that are Eurocurrency Loans and 2.25% for Tranche B Term
Loans that are Base Rate Loans. The Applicable Percentage for
Tranche B Term Loans shall be adjusted on the first Business
Day following an applicable change in the S&P or Moody's
rating.
3
<PAGE> 10
Any adjustment in the Applicable Percentage shall be
applicable to all existing Revolving Loans, Tranche A Term Loans,
Tranche B Term Loans and Letters of Credit as well as any new Revolving
Loans made or Letters of Credit issued.
At the time the Officer's Certificate is required to be
delivered pursuant to Section 7.1(d) or immediately upon any change in
the Debt Rating, the Borrower shall promptly deliver to the
Administrative Agent, at the address set forth on Schedule 11.1 and at
the Agency Services Address, information regarding any change in the
Leverage Ratio or any change in the Debt Rating that would change the
then existing Pricing Level or calculation of Applicable Percentage.
"Asset Disposition" means the disposition of any or all of the
assets (or the sale of the stock of a Subsidiary) of a Credit Party or
any of its Subsidiaries whether by sale, lease, transfer or otherwise
unless permitted by Section 8.5.
"Assignment and Acceptance" means an Assignment and Acceptance
entered into pursuant to the terms of Section 11.3(b) in the form of
Exhibit 11.3(b).
"Bank of America" means Bank of America, N.A., and its
successors and/or assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"BAS" means Banc of America Securities LLC, its successors
and/or assigns.
"Base Capital Expenditures" means Capital Expenditures for
maintenance purposes in an amount not to exceed $8,000,000 during any
twelve-month period.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent demonstrable error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
4
<PAGE> 11
"Borrower" means United States Can Company, a Delaware
corporation, together with any successors and permitted assigns.
"Bridge Fee Letter" means that certain letter agreement, dated
as of July 27, 2000, among the Sponsor , Pac Packaging, Citicorp, SSB
and Banc of America Bridge LLC, as amended, modified, supplemented or
extended from time to time.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in San
Francisco, California or New York, New York; provided that (a) in the
case of Eurocurrency Loans, such day is also a day on which dealings
between banks are carried on in Dollar deposits in the London interbank
market and (b) in the case of Loans made in a Foreign Currency, such
day is also a day on which dealings between banks, in the applicable
country with respect to such Foreign Currency, are carried on in such
Foreign Currency.
"Businesses" has the meaning set forth in Section 6.18.
"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.
"Capital Expenditures" means all expenditures of the Credit
Parties and their Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures, including, without limitation,
Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (a) 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 twelve months from the date of
acquisition, (b) Dollar denominated (or with respect to Foreign
Subsidiaries, Dollar denominated and non-Dollar denominated) time
deposits and certificates of deposit of (i) any Lender, (ii) any
domestic (or with respect to Foreign Subsidiaries, any domestic or
non-domestic) commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody's is at least P-1 or the
5
<PAGE> 12
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than one year from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within one year of the date of acquisition, (d) repurchase agreements
with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which a Domestic Credit Party shall
have a perfected first priority security interest (subject to no other
Liens) and having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which consist substantially of Investments of the
character described in the foregoing subdivisions (a) through (d).
"Cash Restructuring Expenditures" means, for any period, any
cash losses associated with the Restructuring Charges that were
actually paid in cash during such period, all as determined in
accordance with GAAP; provided, however, cash losses associated with
the reserve established for Restructuring Charges existing on the
Closing Date (such reserve not to exceed the actual amount of such
Restructuring Charges up to a maximum amount equal to $20,000,000)
shall be excluded from Cash Restructuring Expenditures when such losses
are actually paid in cash.
"Cash Restructuring Proceeds" means, for any period, net cash
proceeds actually received by a Credit Party or any of its Subsidiaries
in connection with a plant closing or consolidation associated with the
Restructuring Charges made during such period; provided that the total
amount of such net cash proceeds shall be no greater than the lesser of
(a) the related cash costs incurred and included in the Restructuring
Charges used in the calculation of EBITDA in connection with such plant
closing or consolidation during such period and (b) $10,000,000 for all
such plant closings or consolidations during such period.
"Cash Taxes" means total federal, state, foreign or other
income or franchise taxes, paid in cash, of the Credit Parties and
their Subsidiaries on a consolidated basis.
"Change of Control" means any of the following events:
(a) prior to a Public Equity Issuance, (i) the Sponsor shall
fail to own beneficially, directly or indirectly, at least 40% of the
outstanding Voting Stock of the Parent or (ii) any Person shall own a
greater percentage of the outstanding Voting Stock of the Parent than
the Sponsor, in each case after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
the Parent,
6
<PAGE> 13
convertible into or exercisable for Voting Stock of the Parent (whether
or not such securities are then currently convertible or exercisable);
or
(b) subsequent to a Public Equity Issuance, (i) the Sponsor
shall fail to own beneficially, directly or indirectly, at least 30% of
the outstanding Voting Stock of the Parent or (ii) any Person shall own
a greater percentage of the outstanding Voting Stock of the Parent than
the Sponsor, in each case after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
the Parent, convertible into or exercisable for Voting Stock of the
Parent (whether or not such securities are then currently convertible
or exercisable); or
(c) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the board
of directors of the Parent together with any new members of such board
of directors (i) whose elections by such board of directors or whose
nomination for election by the stockholders of the Parent was approved
by a vote of a majority of the members of such board of directors then
still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved or (ii) elected by the Sponsor, cease for any reason to
constitute a majority of the directors of the Parent then in office; or
(d) the Parent shall fail to own 100% of the outstanding
Voting Stock of the Borrower after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
the Borrower, convertible into or exercisable for Voting Stock of the
Borrower (whether or not such securities are then currently convertible
or exercisable); or
(e) a "change of control" (as defined in the Subordinated Loan
Documents) occurs; or
(f) a "change of control" (as defined in any Indebtedness of a
Credit Party or a Subsidiary incurred pursuant to Section 8.1(m)) to
the extent that such "change of control" causes the holder of such
Indebtedness to demand payment thereof or to cause any payment to be
made with respect thereto.
"Citicorp" means Citicorp North America, Inc., and its
successors and/or assigns.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
modified, succeeded or replaced from time to time.
"Collateral" means a collective reference to the collateral
which is identified in, and at any time will be covered by, the
Collateral Documents.
"Collateral Agent" means Bank of America or any successor
collateral agent appointed pursuant to Section 10.9.
7
<PAGE> 14
"Collateral Documents" means a collective reference to the
Security Agreement, the Pledge Agreement, the Mortgages, any collateral
document executed by a Foreign Credit Party and such other documents
executed and delivered in connection with the attachment and perfection
of the Collateral Agent's security interests and liens arising
thereunder, including without limitation, the Mortgage Policies, UCC
financing statements and patent and trademark filings.
"Commitment Fees" means the fees payable to the Lenders
pursuant to Section 3.4(a).
"Commitment Letter" means that certain commitment letter dated
as of July 27, 2000 among the Sponsor, Pac Packaging, Bank of America,
BAS, Citicorp and SSB, as amended, modified, supplemented or extended
from time to time.
"Commitments" means the commitment of each Lender with respect
to the Revolving Committed Amount, the Tranche A Term Loan Committed
Amount and the Tranche B Term Loan Committed Amount, the commitment of
the Swing Line Lender with respect to the Swing Line Committed Amount
and the commitment of each Foreign Currency Lender with respect to the
Foreign Currency Committed Amount.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, each Joinder Agreement, each
Foreign Joinder Agreement, each Foreign Guaranty Agreement, the Fee
Letter, the Collateral Documents, and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto (in each case as the same may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to
time), and "Credit Document" means any one of them.
"Credit Facilities" has the meaning set forth in the Recitals
hereof.
"Credit Parties" means the Domestic Credit Parties and the
Foreign Credit Parties and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, the
Domestic Credit Party Obligations and the Foreign Credit Party
Obligations.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by a Credit Party or any of its Subsidiaries, other than
Indebtedness permitted by Section 8.1.
"Debt Rating" means the long-term senior secured, non-credit
enhanced debt rating of the Borrower from S&P and Moody's.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
8
<PAGE> 15
"Defaulting Lender" means, at any time, any Lender that,
within one Business Day of when due (a) has failed to make a Loan or
purchase a Participation Interest required pursuant to the term of this
Credit Agreement, (b) other than as set forth in (a) above, has failed
to pay to an Agent or any Lender an amount owed by such Lender pursuant
to the terms of this Credit Agreement unless such amount is subject to
a good faith dispute or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"Disinterested Directors" means directors of the Borrower
other than a director (a) who is an employee of a Credit Party or one
of its Subsidiaries or (b) who is a party, or who is a director,
officer, employee or Affiliate (or is related by blood or marriage to
any such Person) of a party, to the transaction in question, and who
is, in fact, independent in respect of such transaction.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Credit Parties" means the Borrower and the Domestic
Guarantors and "Domestic Credit Party" means any one of them.
"Domestic Credit Party Obligations" means, without
duplication, (a) all obligations of the Domestic Credit Parties to the
Lenders (including the Issuing Lender) and the Agents, whenever
arising, under this Credit Agreement, the Notes, the Collateral
Documents or any of the other Credit Documents to which the Borrower or
any other Domestic Credit Party is a party and (b) all liabilities and
obligations, wherever arising, owing from any Domestic Credit Party to
any Lender, or any Affiliate of a Lender, arising under any Hedging
Agreement.
"Domestic Guarantor" means (a) with respect to the Credit
Party Obligations, the Parent, each of the Domestic Subsidiaries, each
Additional Domestic Credit Party which has executed a Joinder
Agreement, or any other Person who becomes a Domestic Guarantor,
together with their successors and assigns and (b) with respect to the
Foreign Credit Party Obligations, the Borrower.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of a Credit Party that are domiciled, incorporated or
organized under the laws of any state of the United States or the
District of Columbia (or have any material assets located in the United
States).
"EBITDA" means, for any period, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, an amount equal
to:
(a) Net Income for such period (excluding the effect of any
extraordinary or other non-recurring gains (including any gain
from the sale of property not in the ordinary course of
business)), except as permitted below) plus
9
<PAGE> 16
(b) an amount which in the determination of Net Income for such
period has been deducted for
(i) interest expense for such period (whether cash or
non-cash),
(ii) total Federal, state, foreign or other income or
franchise taxes for such period,
(iii) Restructuring Charges (whether cash or non-cash),
(iv) Non-Cash Charges, and
(v) Cash Restructuring Proceeds (to the extent Cash
Restructuring Expenditures are included in the
calculation of EBITDA), minus
(c) Cash Restructuring Expenditures;
provided that EBITDA for the first four fiscal quarters subsequent to
the Closing Date, and for purposes of Section 5.1(o), shall be
calculated in accordance with the Pro Forma EBITDA Adjustments.
To the extent that Cash Restructuring Proceeds are greater than Cash
Restructuring Expenditures for any period, the amount of the difference
between the Cash Restructuring Proceeds and the Cash Restructuring
Expenditures may be carried forward to apply to Cash Restructuring
Expenditures for a period consisting of the later of the two succeeding
fiscal quarters and the end of the then current fiscal year.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assets" means any assets or any business (or any
substantial part thereof) used or useful in the same or a similar line
of business as the Credit Parties and their Subsidiaries were engaged
in on the Closing Date; provided that (a) with respect to the Domestic
Credit Parties, such assets are either (i) located in the United States
or (ii) considered to be a Foreign Investment and (b) with respect to
the Foreign Credit Parties, such assets are subject to a Lien in favor
of the Lenders to secure the Foreign Credit Party Obligations to the
extent required by Section 2.6(f).
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of
a Lender or any fund that buys or invests in commercial or bank loans
and is advised or managed by an investment advisor (or an Affiliate
thereof) to an existing Lender or an Affiliate of an existing Lender;
and (c) any other Person approved by the Administrative Agent and the
Borrower (such approval not to be unreasonably withheld or delayed);
provided that (i) the Borrower's consent is not required during the
existence and continuation of an Event of Default and (ii) approval by
the Borrower shall be deemed given if no objection is received by the
assigning Lender and the Administrative Agent from the Borrower within
ten Business Days after notice of such proposed assignment has been
received by the Borrower.
10
<PAGE> 17
"EMU Currency" means German Deutsche Marks, French Francs and
such other currency approved by all of the Lenders.
"EMU Legislation" means the legislative measures of the
European Council (including without limitation European Council
regulations) for the introduction of, changeover to or operation of the
Euro.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, Lien,
proceeding, or written claim whether administrative, judicial, or
private in nature from activities or events taking place during or
prior to a Credit Party's or any of its Subsidiaries' ownership or
operation of any Real Property and arising (a) pursuant to, or in
connection with, an actual or alleged violation of, any Environmental
Law, (b) in connection with any Hazardous Material, (c) from any
assessment, abatement, removal, remedial, corrective, or other response
action required by an Environmental Law or other order of a
Governmental Authority or (d) from any actual or alleged damage,
injury, threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the environment, (b) the
conservation, management, or use of natural resources and wildlife, (c)
the protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material and includes, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976
and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act
of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC
7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et
seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et seq.,
Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et
seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency
Planning and Community Right-to-Know Act of 1986, 42 USC 11001 et seq.,
National Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe
Drinking Water Act of 1974, as amended, 42 USC 300(f) et seq., any
analogous implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder and any foreign
equivalent of such laws.
"Equity Financing" means not less than $160,000,000 in common
and preferred equity (including rollover equity) provided by the
Permitted Holders in connection with the Recapitalization (at least
$100,000,000 of which shall be provided by the Sponsor) on terms
satisfactory to the Agents in their reasonable discretion.
11
<PAGE> 18
"Equity Issuance" means any issuance by a Credit Party or any
of its Subsidiaries to any Person of (a) shares of its Capital Stock or
other equity interests, (b) any shares of its Capital Stock or other
equity interests pursuant to the exercise of options (other than stock
issued to employees and directors pursuant to employees or directors
stock option plans) or warrants or (c) any shares of its Capital Stock
or other equity interests pursuant to the conversion of any debt
securities to equity. The amount of any Equity Issuance shall be the
Net Cash Proceeds derived therefrom, including, in the case of any
conversion of any debt securities into equity the amount of such debt.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
form time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with a Credit Party or any
of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA,
or is a member of a group which includes a Credit Party or any of its
Subsidiaries and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Euro" means the common currency of participating members of
the European Community.
"Eurocurrency Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" means, for the Interest Period for each
Eurocurrency Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
<TABLE>
<S> <C>
Eurocurrency Rate = London Interbank Offered Rate
-----------------------------------
1 - Eurocurrency Reserve Percentage
</TABLE>
"Eurocurrency Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurocurrency Loans is
determined), whether or not a Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurocurrency Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The
12
<PAGE> 19
Eurocurrency Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Percentage.
"European Community" means the European countries that are
signatories to the Treaty on European Union.
"Event of Default" has the meaning specified in Section 9.1.
"Excess Cash Flow" means, with respect to the Credit Parties
and their Subsidiaries on a consolidated basis, for any fiscal year, an
amount equal to (a) EBITDA minus (b) Capital Expenditures (other than
to the extent financed with Indebtedness permitted pursuant to Section
8.1) minus (c) cash paid in connection with Permitted Acquisitions
(other than to the extent financed with Indebtedness permitted pursuant
to Section 8.1) minus (d) cash Interest Expense minus (e) Cash Taxes
minus (f) Principal Amortization Payments minus (g) principal payments
of Indebtedness set forth on Schedule 8.1 minus (h) voluntary
prepayments made with respect to the Term Loans minus (i) that portion
of any prepayment made with respect to the Revolving Loans to the
extent the Revolving Committed Amount is permanently reduced by such
prepayment minus (j) payments actually made as permitted by Section 8.7
minus (k) payments of Restructuring Charges accrued as of the Closing
Date minus (l) reserves for Capital Expenditures permitted to be
carried forward to the following year pursuant to Section 8.14;
provided that (i) such reserves shall be expected to be spent in the
first quarter of the following year and (ii) the amount deducted from
the calculation of Excess Cash Flow pursuant to this clause (l) cannot
exceed (A) the lesser of (1) the amount of Capital Expenditures
incurred in the first quarter of the following year and (2) $10,000,000
or (B) when combined with the deduction in clause (b) above,
$45,000,000.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Excluded Equity Issuance" means (a) any Equity Issuance to a
Permitted Holder and (b) any Equity Issuance in connection with a
Permitted Acquisition.
"Existing Letters of Credit" means the Letters of Credit
described by date, issuance, letter of credit number, undrawn amount,
name of beneficiary and the date of expiry set forth on Schedule
2.2(c).
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arms'-length free
market transaction, for cash, between a willing seller and a willing
buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair Market Value will be determined, except
as otherwise provided, (a) if such property or asset has a Fair Market
Value of less than
13
<PAGE> 20
$3,000,000, by an officer of the Borrower or (b) if such property or
asset has a Fair Market Value in excess of $3,000,000, by a majority of
the Board of Directors of the Borrower and evidenced by a certified
resolution of such Board of Directors.
"Federal Funds Rate" means for any day the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" means that certain fee letter dated as of July
27, 2000 among the Sponsor, Pac Packaging, Bank of America, BAS,
Citicorp and SSB, as amended, modified, supplemented or extended from
time to time.
"Fixed Charge Coverage Ratio" means, as of the end of each
fiscal quarter of the Credit Parties for the twelve month period ending
on such date, with respect to the Credit Parties and their Subsidiaries
on a consolidated basis, the ratio of (a) the sum of (i) EBITDA for
such period minus (ii) Capital Expenditures for such period (other than
Base Capital Expenditures) minus (iii) Cash Taxes during such period to
(b) the sum of (i) Interest Expense for such period plus (ii) Scheduled
Funded Debt Payments for such period, as such ratio is calculated from
time to time giving effect to Annualized Adjustments.
"Flood Hazard Property" has the meaning set forth in Section
5.1(f)(v).
"Foreign Credit Parties" means the Foreign Subsidiary
Borrowers and the Foreign Guarantors and "Foreign Credit Party" means
any one of them.
"Foreign Credit Party Obligations" means, without duplication,
(a) all obligations of the Foreign Credit Parties to the Lenders and
the Agents, whenever arising, under this Credit Agreement, the Foreign
Currency Notes, the Foreign Guaranty Agreements, the applicable
Collateral Documents or any of the other Credit Documents to which any
Foreign Credit Party is a party and (b) all liabilities and
obligations, wherever arising, owing from any Foreign Credit Party to
any Lender, or any Affiliate of a Lender, arising under any Hedging
Agreement.
"Foreign Currency" means British Pounds Sterling, any EMU
Currency, Argentinean Pesos and the Euro or such other currency as
agreed to by all the Lenders. Each Foreign Currency must be one (a)
that is readily available to the Lenders and freely transferable and
convertible into Dollars and (b) in which deposits are generally
available to the Lenders in the London interbank market.
14
<PAGE> 21
"Foreign Currency Committed Amount" means SEVENTY-FIVE MILLION
DOLLARS ($75,000,000) less any outstanding Indebtedness incurred
pursuant to Section 8.1(l).
"Foreign Currency Fronting Fees" has the meaning set forth in
Section 3.4(c).
"Foreign Currency Lender" means each Lender set forth on
Schedule 2.6 for the country and Foreign Currency indicated and any
other Lender (a) that is willing and able to make a Foreign Currency
Loan, in accordance with the terms of Section 2.6, (b) that would not
by virtue of making the applicable Foreign Currency Loan subject a
Foreign Subsidiary Borrower to withholding tax, (c) that has the
requisite power and authority under all applicable laws and regulations
to make the applicable Foreign Currency Loan, (d) that can lawfully
make the applicable Foreign Currency Loan and enforce payment of
principal and interest with respect thereto, and (e) that is approved
by the Administrative Agent to make such Foreign Currency Loan.
"Foreign Currency Loan" has the meaning set forth in Section
2.6(a).
"Foreign Currency Note" or "Foreign Currency Notes" means
promissory notes of the Foreign Subsidiary Borrowers evidencing Foreign
Currency Loans provided pursuant to Section 2.6, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time, in each case in form and substance acceptable to the
Administrative Agent.
"Foreign Currency Notice of Borrowing" means a request by the
Borrower for a Foreign Currency Loan, in the form of Exhibit 2.6(b).
"Foreign Employee Benefit Plan" means any employee benefit
plan as defined in Section 3(3) of ERISA which is maintained or
contributed to for the benefit of the employees of a Credit Party, any
of its Subsidiaries or any of its ERISA Affiliates, but which is not
covered by ERISA pursuant to Section 4(b)(4) of ERISA.
"Foreign Guarantors" means each Foreign Subsidiary which has
executed a Foreign Guaranty Agreement as provided in Section 2.6(f),
together with its successors and assigns.
"Foreign Guaranty Agreement" has the meaning set forth in
Section 2.6(f).
"Foreign Investment" means, any of the following: (a) the
Investment by a Domestic Credit Party in a Foreign Subsidiary (other
than any Investment by a Domestic Credit Party in a Foreign Subsidiary
set forth on Schedule 8.6), (b) the purchase by a Domestic Credit Party
of assets located outside of the United States, including Capital Stock
of a Person not domiciled in the United States or (c) the issuance of a
Letter of Credit under this Credit Agreement for the benefit of a
Foreign Subsidiary; provided that a guaranty by a Domestic Credit Party
of the Foreign Credit Party Obligations shall not constitute a Foreign
Investment.
15
<PAGE> 22
"Foreign Joinder Agreement" means a Foreign Joinder Agreement
substantially in the form of Exhibit 2.6(f).
"Foreign Pension Plan" means any Foreign Employee Benefit Plan
which under applicable local law is required to be funded through a
trust or other funding vehicle.
"Foreign Subsidiaries" means all Subsidiaries, direct or
indirect, of a Credit Party that are not Domestic Subsidiaries.
"Foreign Subsidiary Borrower" means any Foreign Subsidiary
that becomes a Foreign Subsidiary Borrower hereunder in accordance with
Section 2.6(f).
"Foreign Subsidiary Borrower Location" means, with respect to
any Foreign Currency Loan, the country in which the Foreign Subsidiary
Borrower borrowing such Foreign Currency Loan intends to take receipt
of the proceeds of such Foreign Currency Loan.
"Funded Debt" means, without duplication, the sum of (a) all
outstanding Indebtedness of the Credit Parties and their Subsidiaries
for borrowed money, (b) all purchase money Indebtedness of the Credit
Parties and their Subsidiaries, (c) the principal portion of all
obligations of the Credit Parties and their Subsidiaries under Capital
Leases, (d) all Guaranty Obligations of the Credit Parties and their
Subsidiaries with respect to Funded Debt of another Person, (e) all
Funded Debt of another Person secured by a Lien on any property of the
Credit Parties and their Subsidiaries whether or not such Funded Debt
has been assumed by a Credit Party or any of its Subsidiaries, (f) all
Funded Debt of any partnership or unincorporated joint venture to the
extent a Credit Party or one of its Subsidiaries is legally obligated
net of any assets of such partnership or joint venture, (g) the
principal balance outstanding under any Synthetic Lease and (h) the
amount of Indebtedness of the Credit Parties and their Subsidiaries
incurred pursuant to Section 8.1(m), to the extent the outstanding
amount of such Indebtedness exceeds, in the aggregate, (i) from the
Closing Date to October 4, 2001, $5,000,000, (ii) from October 5, 2001
to October 4, 2002, $10,000,000, (iii) from October 5, 2002 to October
4, 2003, $15,000,000 and (iv) from October 5, 2003 and thereafter,
$20,000,000; it being understood that only the amount of such
Indebtedness in excess of the above amounts shall be included in Funded
Debt.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Act" has the meaning set forth in Section
2.2(k)(i).
"Governmental Authority" means any federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means the Domestic Guarantors and the Foreign
Guarantors and "Guarantor" means any one of them.
16
<PAGE> 23
"Guaranty" has the meaning set forth in Section 4.1.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent,
(a) to purchase any such Indebtedness or other obligation or any
property constituting security therefor, (b) to advance or provide
funds or other support for the payment or purchase of such indebtedness
or obligation or to maintain working capital, solvency or other balance
sheet condition of such other Person (including, without limitation,
maintenance agreements, comfort letters, take or pay arrangements, put
agreements or similar agreements or arrangements) for the benefit of
the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or (d) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss
in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an
amount equal to (i) for purposes of calculating Funded Debt or
determining the amount of an Investment consisting of a Guaranty
Obligation, the outstanding principal amount of the Indebtedness in
respect of which such Guaranty Obligation is made and (ii) for purposes
of calculating Indebtedness, the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of
which such Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste
defined as toxic or hazardous or regulated in or under any
Environmental Laws.
"Hedging Agreements" means any interest rate protection
agreement, foreign exchange contract, currency swap agreement,
commodity purchase or option agreement or other interest or exchange
rate or commodity price hedging agreement or other similar agreement,
designed to protect a Credit Party or any of its Subsidiaries against
fluctuations in currency or interest rates.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property purchased by
such Person to the extent of the value of such property (other than
customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all
obligations, other than intercompany items, of such Person issued or
assumed as the deferred purchase price of property or services
purchased by such Person which would appear as liabilities on a balance
sheet of such Person, (e) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the
17
<PAGE> 24
obligations secured thereby have been assumed, (f) all Guaranty
Obligations of such Person, (g) the principal portion of all
obligations of such Person under (i) Capital Leases and (ii) any
Synthetic Lease, (h) all obligations of such Person in respect of
Hedging Agreements, (i) the maximum amount drawable under all
performance and standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date other than Sponsor
Preferred Stock and other preferred stock that has characteristics that
are substantially identical to Sponsor Preferred Stock, and (k) the
aggregate amount of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or similar transaction)
regardless of whether such transaction is effected without recourse to
such Person or in a manner that would not be reflected on the balance
sheet of such Person in accordance with GAAP. The Indebtedness of any
Person shall include the Indebtedness of any partnership or
unincorporated joint venture in which such Person is legally obligated
or has agreed to become legally obligated upon the occurrence of
specific events, conditions or circumstances with respect thereto.
"Indenture" means any Indenture entered into by the Borrower
in connection with the issuance of the Subordinated Securities.
"Intellectual Property" has the meaning set forth in the
Security Agreement.
"Interest Coverage Ratio" means, as of the end of each fiscal
quarter of the Credit Parties for the twelve month period ending on
such date, with respect to the Credit Parties and their Subsidiaries on
a consolidated basis, the ratio of (a) EBITDA for the applicable period
to (b) Interest Expense for the applicable period, as such ratio is
calculated from time to time giving effect to Annualized Adjustments.
"Interest Expense" means, for any period, with respect to the
Credit Parties and their Subsidiaries on a consolidated basis, all cash
interest expense (paid or accrued to be paid), including the interest
component under Capital Leases, as determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar quarter and the Revolving Loan Maturity Date
or the Tranche B Term Loan Maturity Date, as applicable, and (b) as to
Eurocurrency Loans, the last day of each applicable Interest Period and
the Revolving Loan Maturity Date or the Tranche B Term Loan Maturity
Date, as applicable, and in addition, where the applicable Interest
Period for a Eurocurrency Loan is greater than three months, then also
the date three months from the beginning of the Interest Period and
each three months thereafter.
"Interest Period" means, as to Eurocurrency Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest
18
<PAGE> 25
Period shall be extended to the next succeeding Business Day (except
that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Revolving Loan Maturity
Date or the Tranche B Term Loan Maturity Date, as applicable, (c) with
regard to the Tranche A Term Loans, no Interest Period shall extend
beyond any date of a Principal Amortization Payment with respect to the
Tranche A Term Loans unless the portion of Tranche A Term Loans
comprised of Base Rate Loans together with the portion of Tranche A
Term Loans comprised of Eurocurrency Loans with Interest Periods
expiring prior to the date such Principal Amortization Payment is due,
is at least equal to the amount of such Principal Amortization Payment
due on such date, (d) with regard to the Tranche B Term Loans, no
Interest Period shall extend beyond any date of a Principal
Amortization Payment with respect to Tranche B Term Loans unless the
portion of Tranche B Term Loans comprised of Base Rate Loans together
with the portion of Tranche B Term Loans comprised of Eurocurrency
Loans with Interest Periods expiring prior to the date such Principal
Amortization Payment is due, is at least equal to the amount of such
Principal Amortization Payment due on such date and (e) in the case of
Eurocurrency Loans, where an Interest Period begins on a day for which
there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on
the last Business Day of such calendar month.
"Investment" means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes,
debentures, partnership, joint ventures or other ownership interests or
other securities of any Person or (b) any deposit with, or advance,
loan or other extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including, without limitation, any
Guaranty Obligation (including any support for a Letter of Credit
issued on behalf of such Person) incurred for the benefit of such
Person.
"Irrevocable Conversion Rate", with respect to any EMU
Currency, means the rate adopted and irrevocably fixed by the European
Council (in accordance with Article 1091(4) of the Treaty on European
Union) on December 31, 1998 as the official exchange rate at which
National Currency Units of such EMU Currency shall be converted into
Euro, and Euro shall be converted into National Currency Units of such
EMU Currency.
"Issuing Lender" means Bank of America, N.A.
"Issuing Lender Fees" has the meaning set forth in Section
3.4(b)(ii).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.13(a).
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, the Issuing Lender, the Swing Line Lender,
each Foreign Currency Lender and
19
<PAGE> 26
any Person which may become a Lender by way of assignment in accordance
with the terms hereof, together with their successors and permitted
assigns.
"Letter of Credit" means a Letter of Credit issued for the
account of the Borrower or one of its Subsidiaries by the Issuing
Lender pursuant to Section 2.2, as such Letter of Credit may be
amended, modified, extended, renewed or replaced.
"Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.4(b)(i).
"Leverage Ratio" means, as of the end of each fiscal quarter
of the Borrower, with respect to the Credit Parties and their
Subsidiaries on a consolidated basis, the ratio of (a) Funded Debt on
such date to (b) EBITDA for the twelve month period ending on such
date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans, the Swing Line
Loans, the Foreign Currency Loans, the Tranche A Term Loans and the
Tranche B Term Loans (or a portion of any Revolving Loans, Swing Line
Loans, Foreign Currency Loans, Tranche A Term Loans or Tranche B Term
Loans), individually or collectively, as appropriate.
"LOC Committed Amount" means TWENTY-FIVE MILLION DOLLARS
($25,000,000).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is then available to be drawn under Letters of
Credit then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"London Interbank Offered Rate" means, with respect to any
Eurocurrency Loan for the Interest Period applicable thereto, the rate
of interest per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 or such other applicable
page (or any successor page) as the London interbank offered rate for
deposits in
20
<PAGE> 27
Dollars (or the applicable Foreign Currency) at approximately 11:00
A.M. (London time) on the Quotation Day for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Telerate Page 3750, or such other applicable page, the applicable
rate shall be the arithmetic mean of all such rates. If, for any
reason, such rate is not available, the term "London Interbank Offered
Rate" shall mean, with respect to any Eurocurrency Loan for the
Interest Period applicable thereto, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars (or the applicable Foreign Currency) at
approximately 11:00 A.M. (London time) on the Quotation Day for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"M&A Engagement Letter" means that certain letter agreement,
dated as of April 27, 2000, between Pac Packaging and SSB.
"Management Group" means the members of management of the
Parent or the Borrower prior to the Recapitalization that provide a
portion of the Equity Financing.
"Mandatory Borrowing" has the meaning set forth in Section
2.2(e).
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities (actual or contingent),
operations, properties, condition (financial or otherwise), management,
material agreements or prospects of the Credit Parties and their
Subsidiaries taken as a whole, (b) the ability of a Credit Party to
perform its obligations under this Credit Agreement or any of the other
Credit Documents, or (c) the validity or enforceability of this Credit
Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole;
provided that the information disclosed on the Borrower's Quarterly
Report on Form 10-Q for the fiscal quarter ended April 2, 2000 shall
not be deemed to constitute or evidence, in whole or in part, a
Material Adverse Effect.
"Material Contracts" means all agreements which if violated or
terminated would have or could reasonably be expected to have a
Material Adverse Effect.
"Merger" means the merger of the Parent and Pac Packaging
pursuant to the terms of the Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of
Merger, dated as of June 1, 2000, between the Parent and Pac Packaging,
as amended or modified from time to time prior to the Closing Date.
"MLA Cost" means an addition to the interest rate on any Loan
made by any Lender to compensate such Lender for the cost imputed to
the Lender resulting from the imposition from time to time under or
pursuant to the Bank of England Act 1998 and/or by the Bank of England
and/or the Financial Services Authority ("FSA") (or other United
21
<PAGE> 28
Kingdom Governmental Authorities) of a requirement to place
non-interest bearing cash ratio deposits or special deposits (whether
interest bearing or not) with the Bank of England and/or fees to the
FSA calculated by reference to liabilities used to fund the Loans,
expressed as a rate per annum and determined in accordance with
Schedule 3.1.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Mortgages" has the meaning set forth in Section 5.1(f)(i).
"Mortgage Policies" has the meaning set forth in Section
5.1(f)(iii).
"Mortgaged Properties" has the meaning set forth in Section
5.1(f)(i).
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which a Credit Party or any of
its Subsidiaries or any ERISA Affiliate and at least one employer other
than a Credit Party or any of its Subsidiaries or any ERISA Affiliate
are contributing sponsors.
"National Currency Unit" means a fraction or multiple of one
Euro expressed in units of an EMU Currency. Foreign Currency Loans
requested to be denominated in National Currency Units shall be
available only in accordance with Section 2.6(j).
"Net Cash Proceeds" means the aggregate cash proceeds received
from an Asset Disposition, an Equity Issuance or a Debt Issuance net of
(a) actual transaction costs payable to third parties, (b) taxes paid
or a good faith estimate of the taxes payable with respect to such
proceeds, and (c) in connection with an Asset Disposition only, (i) any
reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP; provided that any
subsequent reversal or reduction of such reserves shall constitute
additional Net Cash Proceeds and (ii) any amounts paid to holders of
existing Permitted Liens on any such assets to satisfy and discharge
such Permitted Liens; provided that such amount shall not be less than
the "proceeds" from any asset disposition, equity issuance or debt
issuance as such terms are defined in the Subordinated Loan Documents.
"Net Income" means, for any period, the net income after taxes
for such period of the Credit Parties and their Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Non-Cash Charges" means, for any period, with respect to the
Credit Parties and their Subsidiaries on a consolidated basis, all
depreciation and amortization charges and all extraordinary non-cash
losses from the sale of property (except to the extent included in
Restructuring Charges).
22
<PAGE> 29
"Non-Excluded Taxes" has the meaning set forth in Section
3.13.
"Note" or "Notes" means the Revolving Notes, the Term Notes,
the Swing Line Loan Notes and the Foreign Currency Notes, individually
or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a
Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrower to continue an existing Eurocurrency Loan to a new Interest
Period or to convert a Eurocurrency Loan to a Base Rate Loan or a Base
Rate Loan to a Eurocurrency Loan, in the form of Exhibit 2.7.
"Obligation Currency" has the meaning set forth in Section
11.13.
"Officer's Compliance Certificate" has the meaning set forth
in Section 7.1(d).
"Pac Packaging" means Pac Packaging Acquisition Corporation, a
Delaware corporation.
"Parent" means U.S. Can Corporation, a Delaware corporation.
"Participants" means the Lenders which have a Revolving Loan
Commitment Percentage greater than zero.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Letters of Credit or
LOC Obligations as provided in Section 2.2, in Swing Line Loans as
provided in Section 2.5(c), in Foreign Currency Loans as provided in
Section 2.6(d) or in any Loans as provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an Acquisition by a Credit Party
or any Subsidiary of a Credit Party for consideration no greater than
the fair market value of the Capital Stock or property acquired;
provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition constitutes Eligible Assets (or goodwill
associated therewith), (b) the Administrative Agent shall have received
all items in respect of the Capital Stock or property acquired in such
Acquisition (and/or the seller thereof) required to be delivered by the
terms of Section 7.12 and/or Section 7.13, (c) in the case of an
Acquisition of the Capital Stock of another Person, the board of
directors (or other comparable governing body) of such other Person
shall have duly approved such Acquisition, (d) the Borrower shall have
delivered to the Administrative Agent, prior to the closing of such
Acquisition, a certificate of its chief financial officer demonstrating
that, upon giving effect to such Acquisition on a Pro Forma Basis, the
Credit Parties are in compliance with all of the covenants set forth in
Section 7.11, (e) the representations and warranties made by the Credit
Parties in any Credit
23
<PAGE> 30
Document shall be true and correct in all material respects at and as
if made as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and warranties
expressly relate to an earlier date, (f) at the time of such
Acquisition and after giving effect thereto, no Default or Event of
Default shall exist or be continuing, (g) if applicable, such
Acquisition does not violate Section 8.6 as it relates to clause (g) of
the definition of Permitted Investments, (h) after giving effect to
such Acquisition, the amount of availability existing under the
Revolving Committed Amount shall be greater than or equal to
$25,000,000 and (i) the aggregate consideration (including cash and
non-cash consideration and any assumption of Indebtedness, but
excluding consideration consisting of any Capital Stock of the Parent
issued to the seller of the Capital Stock (or cash funded with the
proceeds of the issuance of such Capital Stock) or property acquired in
such Acquisition) paid by the Credit Parties for all such Acquisitions
occurring after the Closing Date shall not exceed (i) during any fiscal
year, $60,000,000 and (ii) in the aggregate, during the term of this
Credit Agreement, $100,000,000.
"Permitted Holders" means the collective reference to the
Sponsor, the Management Group and the Rollover Shareholders.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or made
in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, (c) inventory, raw materials and
general intangibles (to the extent such general intangibles are not a
Capital Expenditure) acquired in the ordinary course of business, (d)
Investments by a Domestic Credit Party in another Domestic Credit
Party, by a Foreign Credit Party in another Foreign Credit Party, by a
Foreign Subsidiary (other than a Foreign Credit Party) in another
Foreign Subsidiary, by a Foreign Subsidiary in a Domestic Credit Party,
and by a Foreign Credit Party in a Foreign Subsidiary that is not a
Foreign Credit Party in an amount not to exceed, in the aggregate at
any one time outstanding, $10,000,000, (e) loans and advances to
directors, officers and employees in the ordinary course of business
for reasonable business expenses, not to exceed $1,000,000 to any one
Person or $3,000,000, in the aggregate, at any one time outstanding,
(f) the Investments set forth on Schedule 8.6, (g) as long as no
Default or Event of Default exists, Foreign Investments in an aggregate
amount not to exceed $25,000,000 at any one time outstanding during the
term of this Credit Agreement; provided, however, to the extent such
Foreign Investments are made with proceeds of an Equity Issuance to a
Permitted Holder, the amount of such proceeds shall be excluded in
determining compliance with this clause (g), (h) Investments in
Permitted Acquisitions, to the extent it does not violate Section 8.6
as it relates to clause (g) of this definition, (i) Investments made as
a result of the receipt of non-cash consideration from an Asset
Disposition permitted by this Credit Agreement, (j) Investments in
Capital Expenditures to the extent permitted by Section 8.14, (k)
stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Borrower or
any of its Subsidiaries or in satisfaction of judgments and (l)
Investments not otherwise permitted by the other clauses of this
definition not to exceed $10,000,000, in the aggregate, at any one time
outstanding.
24
<PAGE> 31
"Permitted Liens" means (a) Liens securing Credit Party
Obligations, (b) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof); provided that the
aggregate claims secured by such Liens do not exceed $10,000,000, (c)
Liens in respect of property imposed by law arising in the ordinary
course of business such as materialmen's, mechanics', warehousemen's,
carrier's, landlords' and other nonconsensual statutory Liens which are
not yet due and payable, which have been in existence less than 90 days
or which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have
been established (and as to which the property subject to any such Lien
is not yet subject to foreclosure, sale or loss on account thereof),
(d) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation insurance, unemployment
insurance, pensions or social security programs, (e) Liens arising from
good faith deposits in connection with or to secure performance of
tenders, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the
ordinary course of business (other than obligations in respect of the
payment of borrowed money), (f) Liens arising from good faith deposits
in connection with or to secure performance of statutory obligations
and surety and appeal bonds, (g) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered property for its intended
purposes, (h) judgment Liens that would not constitute an Event of
Default, (i) Liens in connection with Indebtedness allowed under
Section 8.1(e), (j) Liens arising by virtue of any statutory or common
law provision relating to banker's liens, rights of setoff or similar
rights as to deposit accounts or other funds maintained with a creditor
depository institution, arising in the ordinary course of business and
not intended as security, (k) Liens existing on the date hereof and
identified on Schedule 8.2; provided that no such Lien shall extend to
any property other than the property subject thereto on the Closing
Date and (l) Liens on real property, equipment and fixtures acquired in
connection with a Permitted Acquisition; provided that (i) such Lien
shall have existed at the time such Permitted Acquisition was
consummated, (ii) such Lien was not incurred in anticipation thereof
and (iii) such Liens, in the aggregate, do not secure Indebtedness in
excess of $10,000,000 aggregate principal amount at any one time
outstanding.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which a
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
25
<PAGE> 32
"Pledge Agreement" means any Pledge Agreement executed and
delivered by a Credit Party in favor of the Collateral Agent, for the
benefit of the Lenders, as amended, modified, restated or supplemented
from time to time.
"Prime Rate" means the per annum rate of interest established
from time to time by the Administrative Agent at its principal office
in Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting
from a change in the Prime Rate shall become effective as of 12:01 a.m.
of the Business Day on which each change in the Prime Rate is announced
by the Administrative Agent. The Prime Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor.
"Principal Amortization Payment" means a principal payment on
the Tranche A Term Loans as set forth in Section 2.3(c) or on the
Tranche B Term Loans as set forth in Section 2.4(c).
"Pro Forma Basis" means, in connection with any Permitted
Acquisition or Significant Asset Disposition, that such Permitted
Acquisition or Significant Asset Disposition shall be deemed to have
occurred (and any Indebtedness incurred or assumed in connection
therewith shall be deemed to have existed) as of the first day of the
twelve month period ending as of the last day of the most recent fiscal
quarter end for which the Lenders have received the financial
information required to be delivered pursuant to Section 7.1(a) or (b),
as applicable, and Section 7.1(d). In connection with any calculation
made hereunder on a Pro Forma Basis, such calculation shall be made in
accordance with Article 11 of Regulation S-X promulgated under the
Securities Act (to the extent applicable) and APB 16; provided that (a)
any adjustments in accordance with Regulation S-X and APB 16 must be
verified by Arthur Andersen LLP or other independent third party
accountants of recognized national standing, (b) any adjustment to
EBITDA in connection with a Permitted Acquisition or Significant Asset
Disposition with respect to identifiable and quantifiable expenses that
would not have been incurred if such Permitted Acquisition or
Significant Asset Disposition had occurred as of the first day of the
relevant period may not exceed 10% of the total historical EBITDA of
the Credit Parties and their Subsidiaries during the last twelve
months, after giving effect to such Permitted Acquisition or Asset
Disposition, and (c) if the assets acquired in a Permitted Acquisition
or divested in a Significant Asset Disposition do not have separate
historical financial statements with respect thereto, the Borrower
shall provide internally prepared financials with respect to such
assets which must be in form and substance reasonably acceptable to the
Administrative Agent. In addition, upon giving effect on a Pro Forma
Basis to any Permitted Acquisition or Asset Disposition, any Funded
Debt incurred or reduced by any Credit Party or any of its Subsidiaries
in connection with such Permitted Acquisition or Asset Disposition, if
such Funded Debt has a floating or formula rate, shall have an implied
rate of interest for the applicable period determined by utilizing the
rate which is or would be in effect with respect to such Indebtedness
as at the relevant date of determination.
26
<PAGE> 33
"Pro Forma EBITDA Adjustments" has the meaning set forth on
Schedule 1.1(b).
"Public Equity Issuance" means an underwritten primary public
offering of the common Capital Stock of the Parent pursuant to an
effective registration statement filed with the United States
Securities and Exchange Commission in accordance with the Securities
Act.
"Quotation Day" means (a) if the Loan is made in Dollars or
any Foreign Currency other than Euro, two Business Days prior to the
first day of such Interest Period and (b) if the Loan is made in Euro,
two TARGET Days prior to the first day of such Interest Period;
provided that if market practice differs in the Relevant Interbank
Market for a Foreign Currency, then the Quotation Day for that Foreign
Currency will be determined by the Administrative Agent in accordance
with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be the
last of those days).
"Real Properties" shall have the meaning set forth in Section
6.18.
"Recapitalization" means the recapitalization of the Parent,
in conjunction with the Merger, with proceeds from the Loans, the
Equity Financing and the Subordinated Debt.
"Refinancing" means the refinancing of all outstanding funded
Indebtedness of the Parent in connection with the Recapitalization,
except for Indebtedness set forth on Schedule 8.1, including, without
limitation, tendering for redemption the Parent's 10 1/8% senior
subordinated notes due 2006.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T,
U or X, respectively, 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.
"Relevant Interbank Market" means the market in which a London
Interbank Offered Rate for the applicable Interest Period is available
in immediately available funds in the applicable Foreign Currency.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the
27
<PAGE> 34
aggregate principal amount of Credit Exposure of such Lender at such
time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to
the termination of the Commitments, the sum of (i) the Revolving
Commitment Percentage of such Lender multiplied by the Revolving
Committed Amount plus (ii) the Tranche A Term Loan Commitment
Percentage of such Lender multiplied by the aggregate principal amount
of the Tranche A Term Loans outstanding at such time plus (iii) the
Tranche B Term Loan Commitment Percentage of such Lender multiplied by
the aggregate principal amount of the Tranche B Term Loans outstanding
at such time, and (b) at any time after the termination of the
Commitments, the sum of (i) the principal balance of the outstanding
Loans of such Lender plus (ii) such Lender's Participation Interests in
the face amount of the outstanding Letters of Credit, outstanding
Swingline Loans and outstanding Foreign Currency Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Restructuring Charges" means any cash or non-cash charges
(excluding any non-cash restructuring charges that are used to write
down the value of accounts receivable or inventory) incurred in
connection plant closings or consolidations.
"Revolving Committed Amount" means ONE HUNDRED FORTY MILLION
DOLLARS ($140,000,000) or such lesser amount as the Revolving Committed
Amount may be reduced pursuant to Section 2.1(d) or Section 3.3(c).
"Revolving Loan Commitment Percentage" means, for each Lender,
the percentage identified as its Revolving Commitment Percentage on
Schedule 1.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.
"Revolving Loan Maturity Date" means October 4, 2006.
"Revolving Loans" means the Revolving Loans made to the
Borrower pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to time
and as evidenced in the form of Exhibit 2.1(e).
"Rollover Shareholders" means certain shareholders of the
Parent prior to the Recapitalization that provide a portion of the
Equity Financing.
28
<PAGE> 35
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Scheduled Funded Debt Payments" means, for any period, with
respect to the Credit Parties and their Subsidiaries on a consolidated
basis, the sum of all scheduled payments of principal on Funded Debt
(including the implied principal component of payments due on Capital
Leases and Synthetic Leases, but excluding voluntary prepayments or
mandatory prepayments made pursuant to Section 3.3), as determined in
accordance with GAAP.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" means any Security Agreement executed and
delivered by a Credit Party in favor of the Collateral Agent, for the
benefit of the Lenders, as amended, modified, restated or supplemented
from time to time.
"Senior Leverage Ratio" means, as of the end of each fiscal
quarter of the Borrower, with respect to the Credit Parties and their
Subsidiaries on a consolidated basis, the ratio of (a) Funded Debt on
such date minus Subordinated Debt on such date to (b) EBITDA for the
twelve month period ending on such date.
"Significant Asset Disposition" means an Asset Disposition of
(a) all or substantially all of the assets or stock of a Credit Party
or a Subsidiary of a Credit Party or (b) a line of business, a division
or a facility disposed of together with its customer base and revenue
source of a Credit Party or one of its Subsidiaries.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such
29
<PAGE> 36
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
"Sponsor" means Berkshire Partners LLC and its Affiliates.
"Sponsor Preferred Stock" means the preferred stock issued by
the Parent in connection with the Transaction that has the following
characteristics: (a) no cash payments of interest, dividends or
principal are due prior to a mandatory redemption date unless permitted
by the terms of this Credit Agreement, (b) unless otherwise permitted
by the terms of this Credit Agreement, any mandatory prepayment date is
at least 366 days following the later of (i) the final maturity date
and termination of this Credit Agreement and (ii) the final maturity
date and termination of the Subordinated Debt and (c) the holders of
the "Sponsor Preferred Stock" shall have no economic or payment
remedies (other than as a holder of equity), nor any other right the
exercise of which could cause a Credit Party or any of its Subsidiaries
to be in default under any of its agreements or to enter bankruptcy or
similar proceedings until all amounts under this Credit Agreement have
been paid in full and the commitments hereunder have been terminated.
"SSB" means Salomon Smith Barney Inc. and its successors
and/or assigns.
"Subordinated Debt" means the Indebtedness, in an amount not
to exceed $175,000,000, issued pursuant to the Subordinated Loan
Documents.
"Subordinated Loan Documents" means (a) the Indenture, (b) the
Subordinated Securities and (c) any other agreement, document,
instrument or certificate executed in connection with the foregoing.
"Subordinated Securities" means any securities issued by the
Borrower in connection with the Subordinated Debt.
"Subsidiary" means, as to any Person, (a) 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, 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 directly or indirectly through Subsidiaries, and (b) any
partnership, limited liability company, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity interest at any time.
"Swing Line Committed Amount" means Ten Million Dollars
($10,000,000).
"Swing Line Lender" means Bank of America.
"Swing Line Loans" means the loans made by the Swing Line
Lender pursuant to Section 2.5.
30
<PAGE> 37
"Swing Line Loan Note" means the promissory note of the
Borrower in favor of the Swing Line Lender evidencing the Swing Line
Loans provided pursuant to Section 2.5, as such promissory note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time in and as evidenced by the form of Exhibit 2.5(d).
"Swing Line Loan Request" means a request by the Borrower for
a Swing Line Loan in substantially the form of Exhibit 2.5(b).
"Syndication Agent" shall have the meaning assigned to such
term in the heading hereof or any successor syndication agent appointed
pursuant to Section 10.9.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP.
"TARGET" means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the
settlement of payments in Euro.
"Term Notes" means the Tranche A Term Notes and the Tranche B
Term Notes.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA); (b) the withdrawal of a Credit Party or any of its Subsidiaries
or any ERISA Affiliate from a Multiple Employer Plan during a plan year
in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer
Plan; (c) the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (d) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (e) any
event or condition which would or could reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; or (f) the
complete or partial withdrawal of a Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"Title Insurance Company" has the meaning set forth in Section
5.1(f)(iii).
"Tranche A Term Loan Committed Amount" means EIGHTY MILLION
DOLLARS ($80,000,000).
"Tranche A Term Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Tranche A Term Loan Commitment
Percentage on Schedule
31
<PAGE> 38
1.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Tranche A Term Loan Maturity Date" means October 4, 2006.
"Tranche A Term Loans" means the Tranche A Term Loans made to
the Borrower pursuant to Section 2.3.
"Tranche A Term Note" or "Tranche A Term Notes" means the
promissory notes of the Borrower in favor of each of the Lenders
evidencing the Tranche A Term Loans provided pursuant to Section 2.3,
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced
from time to time and as evidenced in the form of Exhibit 2.3(d).
"Tranche B Term Loan Committed Amount" means ONE HUNDRED
EIGHTY MILLION DOLLARS ($180,000,000).
"Tranche B Term Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Tranche B Term Loan Commitment
Percentage on Schedule 1.1(a), as such percentage may be modified in
connection with any assignment made in accordance with the provisions
of Section 11.3.
"Tranche B Term Loans" means the Tranche B Term Loans made to
the Borrower pursuant to Section 2.4.
"Tranche B Term Note" or "Tranche B Term Notes" means the
promissory notes of the Borrower in favor of each of the Lenders
evidencing the Tranche B Term Loans provided pursuant to Section 2.4,
individually or collectively, as appropriate, as such promissory notes
may be amended, modified, supplemented, extended, renewed or replaced
from time to time and as evidenced in the form of Exhibit 2.4(d).
"Tranche B Term Loan Maturity Date" means October 4, 2008.
"Transaction" means a collective reference to the Merger, the
Refinancings, the initial Extensions of Credit hereunder and all other
transactions related thereto and hereto.
"Transition Period Cutoff Date" means December 31, 2001, or
such other date as may be established by EMU Legislation.
"Treaty on European Union": means the Treaty of Rome of March
25, 1957, as amended by the Single European Act of 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 21, 1992
and came into force on November 1, 1993), as amended from time to time.
32
<PAGE> 39
"Unused Commitment" means, for any period, the amount by which
(a) the then applicable aggregate Revolving Committed Amount exceeds
(b) the daily average sum for such period of the outstanding aggregate
principal amount of all Revolving Loans (other than Swing Line Loans)
plus the aggregate amount of LOC Obligations outstanding plus the
aggregate amount of Foreign Currency Loans outstanding.
"U.S. Dollar Equivalent" means the amount of Dollars that
would be realized by converting a Foreign Currency into Dollars at
approximately 11:00 a.m. (London time), as set forth on the applicable
Telerate Screen, on the date of determination; provided that if more
than one rate is listed then the applicable conversion rate shall be
the arithmetic average of such rates. If for any reason such conversion
rates are not available, the U.S. Dollar Equivalent shall be calculated
using the arithmetic average of the spot buying rates for such Foreign
Currency in Dollars as quoted to the Administrative Agent by three
foreign exchange dealers of recognized standing in the United States
selected by the Administrative Agent at approximately 11:00 a.m.
(London time) on any date of determination.
"Voting Stock" of a corporation means all classes of the
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
"Warren Lithography Facility" means the facility located in
Warren, Ohio at which the Borrower, prior to March 10, 2000, applied
metal coating and printing to tinplate steel.
"Wheeling Closure Facility" means the facility located in Glen
Dale, West Virginia at which the Borrower, prior to March 10, 2000,
manufactured and sold continuous-thread metal closure products used to
cap glass, metal and plastic jars.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS; CALCULATIONS.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrower that GAAP has not changed since the
most recent financial statements delivered by the Borrower to the Lenders or if
GAAP has changed describing such changes in reasonable detail and explaining how
such changes affect the financial statements. All calculations made for the
purposes of determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by
33
<PAGE> 40
application of GAAP applied on a basis consistent with the most recent annual or
quarterly financial statements delivered pursuant to Section 7.1 (or, prior to
the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements described in Section 5.1(c)); provided,
however, if (a) the Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) either the
Administrative Agent or the Required Lenders shall so object in writing within
60 days after delivery of such financial statements (or after the Lenders have
been informed of the change in GAAP affecting such financial statements, if
later), then such calculations shall be made on a basis consistent with the most
recent financial statements delivered by the Borrower to the Lenders as to which
no such objection shall have been made.
(b) Notwithstanding anything in this Agreement to the contrary, for
purposes of (i) all calculations of the financial covenants set forth in Section
7.11(a), (b) and (c) (including the definitions used therein), (ii) calculating
the Leverage Ratio in connection with the definition of "Application Percentage"
set forth in Section 1.1 and (iii) calculating the Senior Leverage Ratio:
EBITDA, Interest Expense, Funded Debt, Capital Expenditures, Cash Taxes and
Scheduled Funded Debt Payments of any Person acquired in connection with a
Permitted Acquisition or sold or transferred as part of Significant Asset
Disposition shall be computed on a Pro Forma Basis.
1.4 TIME.
All references to time herein shall be references to Eastern Standard
time or Eastern Daylight time, as the case may be, unless specified otherwise.
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
revolving loans (each a "Revolving Loan" and collectively the
"Revolving Loans") to the Borrower, in Dollars, at any time and from
time to time, during the period from and including the Effective Date
to but not including the Revolving Loan Maturity Date (or such earlier
date if the Revolving Committed Amount has been terminated as provided
herein); provided, however, that (i) the sum of the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of LOC
Obligations outstanding plus the aggregate amount of Swing Line Loans
outstanding plus the aggregate amount of Foreign Currency Loans
outstanding shall not exceed the Revolving Committed Amount and (ii)
with respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata share of
outstanding LOC Obligations plus (other than the Swing Line Lender)
such Lender's pro rata share of Swing Line Loans outstanding plus such
Lender's pro rata share of Foreign Currency Loans outstanding (except
for any Foreign Currency Loans
34
<PAGE> 41
with respect to which such Lender is the Foreign Currency Lender) shall
not exceed such Lender's Revolving Loan Commitment Percentage of the
Revolving Committed Amount. Subject to the terms of this Credit
Agreement (including Section 3.3), the Borrower may borrow, repay and
reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than
11:00 a.m. (i) on the date of the requested borrowing of Revolving
Loans that will be Base Rate Loans or (ii) three Business Days prior to
the date of the requested borrowing of Revolving Loans that will be
Eurocurrency Loans, the Borrower shall telephone the Administrative
Agent as well as submit a written Notice of Borrowing in the form of
Exhibit 2.1(b) to the Administrative Agent setting forth (A) the amount
requested, (B) whether such Revolving Loans shall accrue interest at
the Adjusted Base Rate or the Adjusted Eurocurrency Rate, (C) with
respect to Revolving Loans that will be Eurocurrency Loans, the
Interest Period applicable thereto and (D) certification that the
Borrower has complied in all respects with Section 5.2. If the Borrower
shall fail to specify (x) an Interest Period in the case of a
Eurocurrency Loan, then such Eurocurrency Loan shall be deemed to have
an Interest Period of one month, or (y) the type of Revolving Loan
requested, then such Revolving Loan shall be deemed to be a Base Rate
Loan. All Revolving Loans on the Effective Date shall be Base Rate
Loans. Thereafter, all or any portion of the Revolving Loans may be
converted into Eurocurrency Loans in accordance with the terms of
Section 2.7 and the definition of "Interest Period" set forth in
Section 1.1.
(c) Funding of Revolving Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the
applicable Lenders as to the terms thereof. Each such Lender shall make
its Revolving Loan Commitment Percentage of the requested Revolving
Loans available to the Administrative Agent by 1:00 p.m. on the date
specified in the Notice of Borrowing by deposit, in Dollars, of
immediately available funds at the offices of the Administrative Agent
at its principal office in Charlotte, North Carolina or at such other
address as the Administrative Agent may designate in writing. The
amount of the requested Revolving Loans will then be made available to
the Borrower by the Administrative Agent by crediting the account of
the Borrower on the books of such office of the Administrative Agent,
to the extent the amount of such Revolving Loans are made available to
the Administrative Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Revolving Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any such Revolving Loan
that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to be made on
such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of
such Revolving Loans, and the Administrative Agent in reliance upon
such assumption, may (in its sole discretion but without any obligation
to do so) make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the
35
<PAGE> 42
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will 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 from the Lender 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 to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the applicable rate for such
Revolving Loan pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Rate if paid within two Business Days of
the date of drawing, and thereafter at a rate equal to the Base Rate.
(d) Reductions of Revolving Committed Amount. Upon at least
three Business Days' notice, the Borrower shall have the right to
permanently terminate or reduce the aggregate unused amount of the
Revolving Committed Amount at any time or from time to time; provided
that (i) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $1,000,000 above
such amount and (ii) no reduction shall be made which would reduce the
Revolving Committed Amount to an amount less than the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding
LOC Obligations plus the aggregate amount of outstanding Swing Line
Loans plus the aggregate amount of Foreign Currency Loans. Any
reduction in (or termination of) the Revolving Committed Amount shall
be permanent and may not be reinstated.
(e) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower
to each applicable Lender in the face amount of its Revolving Loan
Commitment Percentage of the Revolving Committed Amount and in
substantially the form of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by any Credit Party or conflict with any obligation of, or detract from
any action which may be taken by the Credit Parties or their
Subsidiaries under this Credit Agreement), the Issuing Lender shall
from time to time upon request issue, in Dollars, and the Participants
shall participate in, letters of credit (the "Letters of Credit") for
the account of the Borrower or any of its Subsidiaries, from the
Effective Date until the Revolving Loan Maturity Date, in a form
reasonably acceptable to the Issuing Lender; provided, however, that
(i) the aggregate amount of LOC Obligations shall not at any time
exceed the LOC Committed Amount, (ii) the sum of the aggregate amount
of LOC Obligations outstanding plus Revolving Loans outstanding plus
Swing Line Loans
36
<PAGE> 43
outstanding plus Foreign Currency Loans outstanding shall not exceed
the Revolving Committed Amount, (iii) with respect to each individual
Participant, the Participant's pro rata share of outstanding Revolving
Loans plus its pro rata share of outstanding LOC Obligations plus its
(other than the Swing Line Lender) pro rata share of outstanding Swing
Line Loans plus such Participant's pro rata share of Foreign Currency
Loans outstanding (except for any Foreign Currency Loans with respect
to which such Participant is the Foreign Currency Lender) shall not
exceed such Participant's Revolving Loan Commitment Percentage of the
Revolving Committed Amount and (iv) if any Letter of Credit is for the
benefit of a Foreign Subsidiary, such Letter of Credit shall constitute
a Foreign Investment and after giving effect thereto, the Borrower
shall be in compliance with Section 8.6 as it relates to clause (g) of
the definition of Permitted Investments. The issuance and expiry date
of each Letter of Credit shall be a Business Day. Except as otherwise
expressly agreed upon by all the Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance, or as extended or otherwise, shall have an expiry date
extending beyond the Revolving Loan Maturity Date. Each Letter of
Credit shall be either (x) a standby letter of credit issued to support
the obligations (including pension or insurance obligations),
contingent or otherwise, of a Credit Party or any of its Subsidiaries,
or (y) a commercial letter of credit in respect of the purchase of
goods or services by a Credit Party or any of its Subsidiaries in the
ordinary course of business; it being understood that any Letter of
Credit issued on behalf of a Foreign Subsidiary must be permitted by
the terms of Section 8.6. Each Letter of Credit shall comply with the
related LOC Documents.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least
three Business Days prior to the requested date of issuance. The
Issuing Lender will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto which
may have occurred since the date of the prior report, and including
therein, among other things, the account party, the beneficiary, the
face amount, and the expiry date as well as any payments or expirations
which may have occurred. The Issuing Lender will further provide to the
Administrative Agent, promptly upon request, copies of the Letters of
Credit.
(c) Participations.
(i) On the Effective Date, each Participant shall
automatically acquire a participation in the liability of the
Issuing Lender under each Existing Letter of Credit in an
amount equal to its Revolving Loan Commitment Percentage of
such Existing Letters of Credit.
(ii) Each Participant, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal
to its Revolving Loan Commitment Percentage of the obligations
under such Letter of Credit, and
37
<PAGE> 44
shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to
the Issuing Lender therefor and discharge when due, its
Revolving Loan Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the
scope and nature of each Participant's participation in any
Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed as required hereunder or under any such
Letter of Credit, each such Participant shall pay to the
Issuing Lender its Revolving Loan Commitment Percentage of
such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) hereof. The
obligation of each Participant to so reimburse the Issuing
Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default, an Event of Default
or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower
or any other Credit Party to reimburse the Issuing Lender
under any Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender of its
intent to otherwise reimburse the Issuing Lender, the Borrower shall be
deemed to have requested a Revolving Loan at the Adjusted Base Rate in
the amount of the drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower shall reimburse the Issuing Lender on the day
of drawing under any Letter of Credit either with the proceeds of a
Revolving Loan obtained hereunder or otherwise in same day funds as
provided herein or in the LOC Documents. If the Borrower shall fail to
reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to
the Base Rate plus the Applicable Percentage for Base Rate Loans that
are Revolving Loans plus two percent (2%). The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of (but without waiver of) any rights of
set-off, counterclaim or defense to payment that the applicable account
party or the Borrower may claim or have against the Issuing Lender, the
Agents, the Lenders, the beneficiary of the Letter of Credit drawn upon
or any other Person, including without limitation, any defense based on
any failure of the applicable account party, the Borrower or any other
Credit Party to receive consideration or the legality, validity,
regularity or unenforceability of the Letter of Credit. The Issuing
Lender will promptly notify the Participants of the amount of any
unreimbursed drawing and each Participant shall promptly pay to the
Administrative Agent for the account of the Issuing Lender, in Dollars
and in immediately available funds, the amount of such Participant's
Revolving Loan Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Lender
from the Issuing Lender if such notice is received at or before 2:00
p.m., otherwise such payment shall be made at or before 12:00 Noon on
the Business Day next succeeding the day such notice is received. If
such Participant does not pay such amount to the Issuing Lender in full
upon such request, such Participant shall, on demand, pay to the
Administrative Agent for the
38
<PAGE> 45
account of the Issuing Lender interest on the unpaid amount during the
period from the date the Participant received the notice regarding the
unreimbursed drawing until such Participant pays such amount to the
Issuing Lender in full at a rate per annum equal to, if paid within two
Business Days of the date of drawing, the Federal Funds Rate and
thereafter at a rate equal to the Base Rate. Each Participant's
obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default
or the acceleration of the obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Participant to
the Issuing Lender, such Participant shall, automatically and without
any further action on the part of the Issuing Lender or such
Participant, acquire a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to
the Issuing Lender) in the related unreimbursed drawing portion of the
LOC Obligation and in the interest thereon and in the related LOC
Documents, and shall have a claim against the Borrower and the other
Credit Parties with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan borrowing to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the applicable
Lenders that a Revolving Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which case a
Revolving Loan borrowing comprised solely of Base Rate Loans (each such
borrowing, a "Mandatory Borrowing") shall be immediately made from all
applicable Lenders (without giving effect to any termination of the
Commitments pursuant to Section 9.2 or otherwise) pro rata based on
each Lender's respective Revolving Loan Commitment Percentage and the
proceeds thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such Lender hereby
irrevocably agrees to make such Revolving Loans immediately upon any
such request or deemed request on account of each such Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (i) the amount of
Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or Event of Default then exists, (iv) failure
of any such request or deemed request for Revolving Loans to be made by
the time otherwise required hereunder, (v) the date of such Mandatory
Borrowing, or (vi) any reduction in the Revolving Committed Amount or
any termination of the Commitments. In the event that any 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 with respect to the Borrower
or any other Credit Party), then each such Lender hereby agrees that it
shall forthwith fund (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from
the Borrower on or after such date and prior to such purchase) its
Participation Interest in the outstanding LOC Obligations; provided,
further, that in the event any Lender shall fail to fund its
Participation Interest on the day the Mandatory
39
<PAGE> 46
Borrowing would otherwise have occurred, then the amount of such
Lender's unfunded Participation Interest therein shall bear interest
payable to the Issuing Lender upon demand, at the rate equal to, if
paid within two Business Days of such date, the Federal Funds Rate, and
thereafter at a rate equal to the Base Rate.
(f) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, a Letter of Credit issued hereunder may contain a statement
to the effect that such Letter of Credit is issued for the account of a
Subsidiary of the Borrower; provided that notwithstanding such
statement, the Borrower shall be the actual account party for all
purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extension to any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits (the "UCP") or the International Standby
Practices 1998 (the "ISP98"), in either case as published as of the
date of issue by the International Chamber of Commerce, in which case
the UCP or ISP98, as applicable, may be incorporated therein and deemed
in all respects to be a part thereof.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Participants are only those expressly set forth in
this Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Participant to recover from the Issuing Lender any amounts
made available by such Participant to the Issuing Lender pursuant to
this Section 2.2 in the event that it is determined by a court of
competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit
Agreement shall govern.
(k) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this
Credit Agreement, the Credit Parties hereby agree to protect,
indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
40
<PAGE> 47
attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of the
Issuing Lender to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Credit Parties and the Issuing
Lender, the Credit Parties shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary
thereof. In the absence of gross negligence or willful
misconduct, the Issuing Lender shall not be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the
beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit;
(D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (G) any consequences arising from causes
beyond the control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the
parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Issuing Lender against
any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Credit
Parties, including, without limitation, any and all risks of
the acts or omissions, whether rightful or wrongful, of any
present or future Government Acts. The Issuing Lender shall
not, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause
beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (k) is intended to
limit the reimbursement obligation of the Borrower contained
in this Section 2.2. The
41
<PAGE> 48
obligations of the Borrower under this subsection (k) shall
survive the termination of this Credit Agreement. No act or
omission of any current or prior beneficiary of a Letter of
Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under
this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (k), the Borrower shall have no
obligation to indemnify the Issuing Lender in respect of any
liability incurred by the Issuing Lender arising out of the
gross negligence or willful misconduct of the Issuing Lender.
Nothing in this Credit Agreement shall relieve the Issuing
Lender of any liability to the Borrower in respect of any
action taken by the Issuing Lender which action constitutes
gross negligence or willful misconduct of the Issuing Lender
or a violation of the UCP, the ISP98 or Uniform Commercial
Code (as applicable).
2.3 TRANCHE A TERM LOANS.
(a) Tranche A Term Loan. Subject to the terms and conditions
set forth herein, each Lender severally agrees, on the Effective Date,
to make a term loan (collectively, the "Tranche A Term Loans") to the
Borrower, in Dollars, in an amount equal to such Lender's Tranche A
Term Loan Commitment Percentage, if any, of the Tranche A Term Loan
Committed Amount; provided that the aggregate amount of such Tranche A
Term Loans made on the Effective Date shall not exceed the Tranche A
Term Loan Committed Amount. Once repaid, Tranche A Term Loans cannot be
reborrowed.
(b) Funding of Tranche A Term Loans. On the Effective Date,
each applicable Lender will make its Tranche A Term Loan Commitment
Percentage of the Tranche A Term Loan Committed Amount available to the
Administrative Agent by deposit, in Dollars and in immediately
available funds, at the offices of the Administrative Agent at its
principal office in Charlotte, North Carolina or at such other address
as the Administrative Agent may designate in writing. The amount of the
Tranche A Term Loans will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the
books of such office of the Administrative Agent, to the extent the
amount of such Tranche A Term Loans are made available to the
Administrative Agent. All Tranche A Term Loans on the Effective Date
shall be Base Rate Loans. Thereafter, all or any portion of the Tranche
A Term Loans may be converted into Eurocurrency Loans in accordance
with the terms of Section 2.7 and the definition of "Interest Period"
set forth in Section 1.1.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make a Tranche A Term Loan hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. If the Administrative Agent shall have received
an executed signature page to this Credit Agreement (whether an
original or via telecopy) from a Lender, the Administrative Agent may
assume that such Lender has or will make the amount of its Tranche A
Term Loans available to the Administrative Agent on the Effective Date,
and the Administrative Agent in reliance upon such assumption, may (in
its sole discretion but without any obligation to do so) make available
to the Borrower a corresponding amount. If
42
<PAGE> 49
such corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will 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 from the Lender 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 to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the Adjusted Base Rate and (ii) from
a Lender at the Federal Funds Rate if paid within two Business Days of
the date of drawing and thereafter at a rate equal to the Base Rate.
(c) Amortization. The principal amount of the Tranche A Term
Loans shall be repaid in quarterly payments on the dates set forth
below:
<TABLE>
<CAPTION>
Principal Amortization Tranche A Term Loan
Payment Dates Principal Amortization Payment
---------------------- ------------------------------
<S> <C>
12/31/00 $1,000,000
3/31/01 $1,000,000
6/30/01 $1,000,000
9/30/01 $1,000,000
12/31/01 $2,000,000
3/31/02 $2,000,000
6/30/02 $2,000,000
9/30/02 $2,000,000
12/31/02 $2,000,000
3/31/03 $2,000,000
6/30/03 $2,000,000
9/30/03 $2,000,000
12/31/03 $3,000,000
3/31/04 $3,000,000
6/30/04 $3,000,000
9/30/04 $3,000,000
12/31/04 $4,000,000
3/31/05 $4,000,000
6/30/05 $4,000,000
9/30/05 $4,000,000
12/31/05 $8,000,000
3/31/06 $8,000,000
6/30/06 $8,000,000
Tranche A Term Loan Maturity Date $8,000,000
</TABLE>
(d) Tranche A Term Notes. The portion of the Tranche A Term
Loan made by each Lender shall be evidenced by a duly executed
promissory note of the Borrower to such Lender in an original principal
amount equal to such Lender's Tranche A Term Loan Commitment Percentage
of the Tranche A Term Loan Committed Amount and substantially in the
form of Exhibit 2.3(d).
43
<PAGE> 50
2.4 TRANCHE B TERM LOANS.
(a) Tranche B Term Loan. Subject to the terms and conditions
set forth herein, each Lender severally agrees, on the Effective Date,
to make a term loan (collectively, the "Tranche B Term Loans") to the
Borrower, in Dollars, in an amount equal to such Lender's Tranche B
Term Loan Commitment Percentage, if any, of the Tranche B Term Loan
Committed Amount; provided that the aggregate amount of such Tranche B
Term Loans made on the Effective Date shall not exceed the Tranche B
Term Loan Committed Amount. Once repaid, Tranche B Term Loans cannot be
reborrowed.
(b) Funding of Tranche B Term Loans. On the Effective Date,
each applicable Lender will make its Tranche B Term Loan Commitment
Percentage of the Tranche B Term Loan Committed Amount available to the
Administrative Agent by deposit, in Dollars and in immediately
available funds, at the offices of the Administrative Agent at its
principal office in Charlotte, North Carolina or at such other address
as the Administrative Agent may designate in writing. The amount of the
Tranche B Term Loans will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the
books of such office of the Administrative Agent, to the extent the
amount of such Tranche B Term Loans are made available to the
Administrative Agent. All Tranche B Term Loans on the Effective Date
shall be Base Rate Loans. Thereafter, all or any portion of the Tranche
B Term Loans may be converted into Eurocurrency Loans in accordance
with the terms of Section 2.7 and the definition of "Interest Period"
set forth in Section 1.1.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make a Tranche B Term Loan hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. If the Administrative Agent shall have received
an executed signature page to this Credit Agreement (whether an
original or via telecopy) from a Lender, the Administrative Agent may
assume that such Lender has or will make the amount of its Tranche B
Term Loans available to the Administrative Agent on the Effective Date,
and the Administrative Agent in reliance upon such assumption, may (in
its sole discretion but without any obligation to do so) make available
to the Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding amount
from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent will 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 from the Lender 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 to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the Adjusted Base Rate and (ii) from a Lender at
the Federal Funds Rate if paid within two Business Days of the date of
drawing and thereafter at a rate equal to the Base Rate.
44
<PAGE> 51
(c) Amortization. The principal amount of the Tranche B Term
Loans shall be repaid in quarterly payments on the dates set forth
below:
<TABLE>
<CAPTION>
Principal Amortization Tranche B Term Loan
Payment Dates Amortization Payment
---------------------- --------------------
<S> <C>
12/31/00 $ 250,000
3/31/01 $ 250,000
6/30/01 $ 250,000
9/30/01 $ 250,000
12/31/01 $ 250,000
3/31/02 $ 250,000
6/30/02 $ 250,000
9/30/02 $ 250,000
12/31/02 $ 250,000
3/31/03 $ 250,000
6/30/03 $ 250,000
9/30/03 $ 250,000
12/31/03 $ 250,000
3/31/04 $ 250,000
6/30/04 $ 250,000
9/30/04 $ 250,000
12/31/04 $ 250,000
3/31/05 $ 250,000
6/30/05 $ 250,000
9/30/05 $ 250,000
12/31/05 $ 250,000
3/31/06 $ 250,000
6/30/06 $ 250,000
9/30/06 $ 250,000
12/31/06 $21,750,000
3/31/07 $21,750,000
6/30/07 $21,750,000
9/30/07 $21,750,000
12/31/07 $21,750,000
3/31/08 $21,750,000
6/30/08 $21,750,000
Tranche B Term Loan Maturity Date $21,750,000
</TABLE>
(d) Tranche B Term Notes. The portion of the Tranche B Term
Loan made by each Lender shall be evidenced by a duly executed
promissory note of the Borrower to such Lender in an original principal
amount equal to such Lender's Tranche B Term Loan Commitment Percentage
of the Tranche B Term Loan Committed Amount and substantially in the
form of Exhibit 2.4(d).
45
<PAGE> 52
2.5 SWING LINE LOANS SUBFACILITY.
(a) Swing Line Loans. The Swing Line Lender hereby agrees, on
the terms and subject to the conditions set forth herein and in the
other Credit Documents, to make loans to the Borrower in Dollars at any
time and from time to time during the period from and including the
Effective Date to but not including the Revolving Loan Maturity Date
(each such loan, a "Swing Line Loan" and collectively, the "Swing Line
Loans"); provided that (i) the aggregate principal amount of the Swing
Line Loans outstanding at any one time shall not exceed the Swing Line
Committed Amount and (ii) the aggregate amount of Swing Line Loans
outstanding plus the aggregate amount of Revolving Loans outstanding
plus the aggregate amount of LOC Obligations outstanding plus the
aggregate amount of Foreign Currency Loans outstanding shall not exceed
the Revolving Committed Amount. Subject to the terms of this Credit
Agreement (including Section 3.3), the Borrower may borrow, repay and
reborrow Swing Line Loans.
(b) Method of Borrowing and Funding Swing Line Loans. By no
later than 1:00 p.m. on the date of the requested borrowing of Swing
Line Loans, the Borrower shall telephone the Swing Line Lender as well
as submit a Swing Line Loan Request to the Swing Line Lender in the
form of Exhibit 2.5(b) setting forth (i) the amount of the requested
Swing Line Loan and (ii) the date of the requested Swing Line Loan and
complying in all respects with Section 5.2. The Swing Line Lender shall
initiate the transfer of funds representing the Swing Line Loan advance
to the Borrower by 3:00 p.m. on the Business Day of the requested
borrowing.
(c) Repayment and Participations of Swing Line Loans. The
Borrower agrees to repay all Swing Line Loans within one Business Day
of demand therefor by the Swing Line Lender. Each repayment of a Swing
Line Loan may be accomplished by requesting Revolving Loans which
request is not subject to the conditions set forth in Section 5.2. In
the event that the Borrower shall fail to timely repay any Swing Line
Loan, and in any event upon (i) a request by the Swing Line Lender,
(ii) the occurrence of an Event of Default described in Section 9.1(f)
or (iii) the acceleration of any Loan or termination of any Commitment
pursuant to Section 9.2, each other Participant shall irrevocably and
unconditionally purchase from the Swing Line Lender, without recourse
or warranty, an undivided interest and participation in such Swing Line
Loan in an amount equal to such other Lender's Revolving Loan
Commitment Percentage thereof, by directly purchasing a participation
in such Swing Line Loan in such amount (regardless of whether the
conditions precedent thereto set forth in Section 5.2 are then
satisfied, whether or not the Borrower has submitted a Notice of
Borrowing and whether or not the Commitments are then in effect, any
Event of Default exists or all the Loans have been accelerated) and
paying the proceeds thereof to the Swing Line Lender at the address
provided in Section 11.1, or at such other address as the Swing Line
Lender may designate, in Dollars and in immediately available funds. If
such amount is not in fact made available to the Swing Line Lender by
any Participant, the Swing Line Lender shall be entitled to recover
such amount on demand from such Participant, together with accrued
interest thereon for each day from the date of demand thereof, at the
Federal Funds Rate. If such Participant does not pay such amount
forthwith upon the Swing Line Lender's demand therefor, and until such
time as such
46
<PAGE> 53
Participant makes the required payment, the Swing Line Lender shall be
deemed to continue to have outstanding Swing Line Loans in the amount
of such unpaid participation obligation for all purposes of the Credit
Documents other than those provisions requiring the other Participants
to purchase a participation therein. Further, such Participant shall be
deemed to have assigned any and all payments made of principal and
interest on its Loans, and any other amounts due to it hereunder to the
Swing Line Lender to fund Swing Line Loans in the amount of the
participation in Swing Line Loans that such Participant failed to
purchase pursuant to this Section 2.5(c) until such amount has been
purchased (as a result of such assignment or otherwise).
(d) Swing Line Loan Note. The Swing Line Loans made by the
Swing Line Lender shall be evidenced by a duly executed promissory note
of the Borrower to the Swing Line Lender in the face amount of the
Swing Line Committed Amount and in substantially the form of Exhibit
2.5(d).
2.6 FOREIGN CURRENCY LOANS SUBFACILITY.
(a) Foreign Currency Loans. Each Foreign Currency Lender
hereby agrees, on the terms and subject to the conditions set forth
herein and in the other Credit Documents, including, but not limited
to, the limitations as to the Foreign Subsidiary Borrowers, the Foreign
Currency and the Foreign Subsidiary Borrower Locations set forth on
Schedule 2.6, and the limitations set forth below, to make revolving
loans to (1) the Borrower and (2) the applicable Foreign Subsidiary
Borrowers (provided any such Foreign Subsidiary Borrower has met the
conditions set forth in Section 2.6(f)) in such Foreign Currency at any
time and from time to time during the period from and including the
Effective Date to but not including the Revolving Loan Maturity Date
(each such loan, a "Foreign Currency Loan" and collectively, the
"Foreign Currency Loans"); provided that (i) the aggregate principal
amount of the Foreign Currency Loans outstanding at any one time shall
not exceed the Foreign Currency Committed Amount, (ii) the aggregate
principal amount of Foreign Currency Loans outstanding at any one time
to Foreign Subsidiary Borrowers in the United Kingdom shall not exceed
$25,000,000, (iii) the aggregate principal amount of Foreign Currency
Loans outstanding at any one time to Foreign Subsidiary Borrowers in
France shall not exceed $20,000,000, (iv) the aggregate principal
amount of Foreign Currency Loans outstanding at any one time to Foreign
Subsidiary Borrowers in Germany shall not exceed $50,000,000, (v) the
aggregate principal amount of Foreign Currency Loans outstanding at any
one time to Foreign Subsidiary Borrowers in Argentina shall not exceed
$15,000,000,(vi) the aggregate principal amount of Foreign Currency
Loans outstanding to the Borrower shall not exceed $25,000,000 and
(vii) the aggregate amount of Foreign Currency Loans outstanding plus
the aggregate amount of Revolving Loans outstanding plus the aggregate
amount of LOC Obligations outstanding plus the aggregate amount of
Swing Line Loans outstanding shall not exceed the Revolving Committed
Amount. Subject to the terms of this Credit Agreement (including
Section 3.3), the Borrower and the applicable Foreign Subsidiary
Borrowers, as the case may be, may borrow, repay and reborrow Foreign
Currency Loans.
47
<PAGE> 54
Notwithstanding the above (A) the limits set forth in clauses
(ii), (iii), (iv), (v) and (vi) above, such limits may be increased
upon the written request by the Borrower and the consent thereto by the
Administrative Agent and (B) any Foreign Currency Loans made to the
Borrower must be delivered to the Borrower in England, France, Germany
or Argentina.
(b) Method of Borrowing and Funding Foreign Currency Loans. By
no later than 11:00 a.m. (i) two Business Days prior to the date of the
requested borrowing of Foreign Currency Loans that will be Base Rate
Loans or (ii) five Business Days prior to the date of the requested
borrowing of Foreign Currency Loans that will be Eurocurrency Loans,
the Borrower shall telephone the Administrative Agent as well as submit
a written Foreign Currency Notice of Borrowing in the form of Exhibit
2.6(b) to the Administrative Agent setting forth (A) the Borrower or
the Foreign Subsidiary Borrower borrowing such Foreign Currency Loans,
(B) the amount requested, (C) the Foreign Currency requested, (D) the
account of the Borrower or the Foreign Subsidiary Borrower to which
such Foreign Currency Loans shall be funded, (E) whether such Foreign
Currency Loans shall accrue interest at the Adjusted Base Rate or the
Adjusted Eurocurrency Rate, (F) with respect to Foreign Currency Loans
that will be Eurocurrency Loans, the Interest Period applicable thereto
and (G) certification that the Borrower has complied in all respects
with Section 5.2 and, if applicable, Section 2.6(f). The Administrative
Agent shall promptly forward such information to the applicable Foreign
Currency Lender and the Participants. If the Borrower shall fail to
specify (x) an Interest Period in the case of a Eurocurrency Loan, then
such Eurocurrency Loan shall be deemed to have an Interest Period of
one month, or (y) the type of Foreign Currency Loan requested, then
such Foreign Currency Loan shall be deemed to be a Base Rate Loan. All
Foreign Currency Loans on the Effective Date shall be Base Rate Loans.
Thereafter, all or any portion of the Foreign Currency Loans may be
converted into Eurocurrency Loans in accordance with the terms of
Section 2.7 and the definition of "Interest Period" set forth in
Section 1.1.
Notwithstanding anything herein to the contrary, Foreign
Currency Loans, other than Foreign Currency Loans made in British
Pounds Sterling, may not be requested, and will not funded, as Base
Rate Loans.
(c) Funding of Foreign Currency Loans. The applicable Foreign
Currency Lender shall make the requested Foreign Currency Loans
available to the Borrower or the Foreign Subsidiary Borrower by 1:00
p.m. (local time of the country in which such Foreign Currency Loan is
to be delivered) on the date specified in the Foreign Currency Notice
of Borrowing by deposit of immediately available funds in the
applicable Foreign Currency in the Borrower's or the Foreign Subsidiary
Borrower's account set forth in the Foreign Currency Notice of
Borrowing
(d) Participations of Foreign Currency Loans. At the time that
a Foreign Currency Lender makes a Foreign Currency Loan, each
Participant shall be deemed, without any further action by any Person,
to have purchased from such Foreign Currency Lender an unfunded
participation, without recourse to or warranty of the Foreign Currency
Lender, in such Foreign Currency Loan in an amount equal to such
Participant's Revolving Loan
48
<PAGE> 55
Commitment Percentage of such Foreign Currency Loan and shall be
obligated to fund such participation at the time and in the manner
provided below. In the event that the Borrower or a Foreign Subsidiary
Borrower shall fail to timely repay any Foreign Currency Loan, and in
any event upon (i) the request of the Foreign Currency Lender and (ii)
the occurrence and during the continuance of a Default or an Event of
Default, each Participant shall fund its participation in such Foreign
Currency Loan (regardless of whether the conditions precedent thereto
set forth in Section 5.2 are then satisfied, whether or not the
Borrower has submitted a Foreign Currency Notice of Borrowing and
whether or not the Commitments are then in effect, any Event of Default
exists or all the Loans have been accelerated) by paying to such
Foreign Currency Lender, at the address provided in Section 11.1 or at
such other address as the Foreign Currency Lender may designate, the
U.S. Dollar Equivalent (as determined as of the date such participation
is to be funded) of such Foreign Currency Loan. Upon the funding of its
Revolving Loan Commitment Percentage of a Foreign Currency Loan, a
Participant shall have a Foreign Currency Loan in the amount funded and
shall be deemed a Foreign Currency Lender for purposes hereof. If such
amount is not in fact made available to the Foreign Currency Lender by
any Participant, the Foreign Currency Lender shall be entitled to
recover such amount on demand from such Participant, together with
accrued interest thereon for each day from the date of demand thereof,
at the Federal Funds Rate if paid within two Business Days of the date
of demand thereof, and thereafter at a rate equal to the Base Rate. If
such Participant does not pay such amount forthwith upon the Foreign
Currency Lender's demand therefor, and until such time as such
Participant makes the required payment, the Foreign Currency Lender
shall be deemed to continue to have outstanding Foreign Currency Loans
in the amount of such unpaid participation obligation for all purposes
of the Credit Documents other than those provisions requiring the
Participants to purchase a participation therein. Further, such
Participant shall be deemed to have assigned any and all payments made
of principal and interest on its Loans, and any other amounts due to it
hereunder to the Foreign Currency Lender to fund Foreign Currency Loans
in the amount of the participation in Foreign Currency Loans that such
Participant failed to purchase pursuant to this Section 2.6(d) until
such amount has been purchased (as a result of such assignment or
otherwise).
(e) Foreign Currency Note. The Foreign Currency Loans made by
each Foreign Currency Lender shall not be required to be evidenced by
any notes but, if requested by the Administrative Agent or the
applicable Foreign Currency Lender, shall be evidenced by a duly
executed promissory note of the Borrower or the applicable Foreign
Subsidiary Borrower to such Foreign Currency Lender in form and
substance acceptable to the Administrative Agent and such Foreign
Currency Lender.
(f) Foreign Subsidiary Borrowers. Subject to the conditions
set forth below, the Borrower may designate one or more Foreign
Subsidiaries for purposes of receiving a Foreign Currency Loan.
(i) In order for any Foreign Subsidiary of the
Borrower to become a Foreign Subsidiary Borrower, the
Administrative Agent shall receive (A) a duly executed Foreign
Joinder Agreement, in the form of Exhibit 2.6(f), from such
Foreign Subsidiary, (B) if requested, a note from such Foreign
Subsidiary in form and substance acceptable to the Collateral
Agent, (C) collateral documents granting
49
<PAGE> 56
to the Collateral Agent, for the benefit of the Lenders, a
Lien on all the assets of such Foreign Subsidiary to the
extent permitted by law and if practical (as determined by the
Collateral Agent), (D) a guaranty of the Foreign Currency
Loans to the Foreign Subsidiary Borrower in question by all
Foreign Subsidiaries that are either direct or indirect
Subsidiaries of such Foreign Subsidiary or a direct or
indirect foreign parent of such Foreign Subsidiary (each, a
"Foreign Guaranty Agreement"), together with collateral
documents securing such Foreign Guaranty Agreements by all of
the assets of such Foreign Subsidiaries to the extent
permitted by law and to the extent practical (as determined by
the Collateral Agent) and (E) such other authorization
documents, resolutions, opinions and collateral documents as
reasonably required by the Collateral Agent. Pursuant to such
requested documentation, including the Foreign Guaranty
Agreements, the Foreign Guarantors party to such Foreign
Guaranty Agreements shall be liable for any Foreign Currency
Loans made to the Foreign Subsidiary Borrower with respect to
which the Foreign Guarantee Agreements were entered into and
all Collateral pledged by such Foreign Subsidiary Borrower or
such Foreign Guarantors shall secure the obligations of such
Foreign Subsidiary Borrower to the Lenders. The Administrative
Agent shall promptly notify the Participants of any such
request and thereafter shall provide the Participants copies
of the Foreign Joinder Agreement.
(ii) The Foreign Credit Party Obligations of a
Foreign Subsidiary Borrower shall be several as to such
Foreign Subsidiary Borrower and joint and several as to the
Foreign Guarantors (including the Domestic Credit Parties)
that guarantee the Foreign Credit Party Obligations of the
Foreign Subsidiary Borrower in question. The Agents and the
Lenders shall have the right to communicate solely with the
Borrower regarding any borrowing, repayment, continuation or
conversion of any Foreign Currency Loan made to a Foreign
Subsidiary Borrower.
(g) Cash Collateralization of Participation Interest. If, and
for so long as, any Participant's public debt rating (as defined below)
is below A- by S&P or A3 by Moody's (or, with respect to any
Participant that does not have a public debt rating at any time of
determination, a Foreign Currency Lender shall determine that such
Participant's ability to meet such Participant's obligations under
subsection (d) above has declined since the date such Participant
became a Participant hereunder), (i) such Participant shall,
immediately upon demand by any Foreign Currency Lender, cash
collateralize its Revolving Loan Commitment Percentage of the aggregate
principal amount of all outstanding Foreign Currency Loans by
depositing such amount into a cash collateral account designated by the
Administrative Agent, and (ii) each such Participant shall, if so
demanded by any Foreign Currency Lender in its sole discretion by
written notice to the Administrative Agent and such Participant, prior
to the funding by the Foreign Currency Lender of any Foreign Currency
Loans, deposit in such cash collateral account an amount equal to such
Participant's Revolving Loan Commitment Percentage of the aggregate
amount of such Foreign Currency Loan. Amounts deposited by any
Participant in any such cash collateral account shall be (A) held for
the benefit of the applicable Foreign Currency Lender, (B) applied by
the Administrative Agent to satisfy such Participant's obligations
under subsection (d) above, (C) to the extent such amounts exceed at
any time such Participant's Revolving Loan Commitment Percentage of all
outstanding Foreign
50
<PAGE> 57
Currency Loans, returned to such Participant and (D) at the request of
such Participant, invested in Cash Equivalents and any earnings with
respect thereto remitted to such Participant as such Participant may
direct. The term "public debt rating" means, as of any date with
respect to any Person, the rating that has been most recently announced
by either S&P or Moody's, as the case may be, for any class of
non-credit enhanced long-term senior unsecured debt issued by such
Person.
(h) Governing Law; Service of Process. Each Foreign Joinder
Agreement, each Foreign Currency Note and each Foreign Guaranty
Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York unless the
Administrative Agent is advised by foreign legal counsel that such
Foreign Joinder Agreement, Foreign Currency Note or Foreign Guaranty
Agreement should be governed by the laws of another jurisdiction, in
which case such Foreign Joinder Agreement, Foreign Currency Note or
Foreign Guaranty Agreement, as applicable, shall be governed by such
other jurisdiction. Each Foreign Credit Party shall irrevocably at all
times maintain an agent for purposes of service of process in
connection with matters arising under this Credit Agreement and the
other Credit Documents, such agent to be acceptable to the
Administrative Agent; it being understood that the Borrower, as of the
Closing Date, is deemed by the Administrative Agent to be acceptable to
act as the agent for service of process for any Foreign Credit Party.
(i) Further Assurances. The Credit Parties shall deliver, or
cause their Subsidiaries to deliver, prior to or in conjunction with
the funding of any Foreign Currency Loan, any document or instrument
reasonably required by the Administrative Agent or the Foreign Currency
Lender with respect to such Foreign Currency Loan, including, without
limitation, promissory notes, resolutions, organizational documents,
incumbency certificates, legal opinions, mortgage instruments, title
policies, security agreements, pledge agreements and other collateral
documentation.
(j) Introduction of Euro; National Currency Unit Advances,
Etc.
(i) National Currency Unit Advances. Prior to the
Transition Period Cutoff Date, Foreign Currency Loans made in
EMU Currency may be funded and maintained in National Currency
Units of the EMU Currency designated by the Borrower in its
Foreign Currency Notice of Borrowing. Repayments of Foreign
Currency Loans that were funded in National Currency Units
pursuant to this Section 2.6(j) shall be made in such National
Currency Units; provided, however, that any Foreign Currency
Loan that is (A) denominated in National Currency Units and
(B) outstanding as of the Transition Period Cutoff Date shall
be automatically redenominated into Euro as of the close of
business on such date at the applicable Irrevocable Conversion
Rate; and provided further that repayments of all such Foreign
Currency Loans made after the Transition Period Cutoff Date
shall be denominated in Euro. After the Transition Period
Cutoff Date, Foreign Currency Loans shall no longer be funded
in National Currency Units.
51
<PAGE> 58
(ii) Conversions to Euro. The parties hereto agree
that neither the fixation of the conversion rate of EMU
Currency against the Euro as a single currency, in accordance
with the Treaty on European Union, nor the conversion of any
Credit Party Obligations under the Credit Documents from EMU
Currency, or National Currency Units, into Euro, shall require
the early termination of this Credit Agreement or the
prepayment of any amount due under the Credit Documents or
create any liability of one party to another party for any
direct or consequential loss arising from any of such events.
(iii) Currency Translations; Rounding. Any
translation from one currency or currency unit to another
shall be at the rate specified herein or, if not so specified,
then at the official rate of exchange legally recognized by
the central bank of the country issuing such currency for the
conversion of that currency or currency unit into the other.
Any such translation shall be rounded up or down by the
Administrative Agent acting in accordance with any applicable
law on rounding or, if there is no such law, acting reasonably
in accordance with its market practice.
(iv) Changes in Currency. If a change in any currency
of a country occurs, this Agreement will be amended to the
extent the Administrative Agent reasonably specifies to be
necessary to reflect the change in currency and to put the
parties hereto in the same position, as far as possible, that
they would have been in if no change in currency had occurred;
provided that any such amendments will not adversely affect
the Lenders.
2.7 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, on behalf of
itself or a Foreign Subsidiary Borrower, to continue existing Eurocurrency Loans
for a subsequent Interest Period, to convert Base Rate Loans into Eurocurrency
Loans or to convert Eurocurrency Loans into Base Rate Loans; provided, however,
that (a) each such continuation or conversion must be requested by the Borrower
pursuant to a written Notice of Continuation/Conversion, in the form of Exhibit
2.7, in compliance with the terms set forth below, (b) except as provided in
Section 3.11, Eurocurrency Loans may only be continued or converted into Base
Rate Loans on the last day of the Interest Period applicable hereto, (c)
Eurocurrency Loans may not be continued nor may Base Rate Loans be converted
into Eurocurrency Loans during the existence and continuation of a Default or
Event of Default without the consent of the Required Lenders, (d) any request to
extend a Eurocurrency Loan that fails to comply with the terms hereof or any
failure to request an extension of a Eurocurrency Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period and (e) any request for continuation or conversion of
a Eurocurrency Loan which shall fail to specify an Interest Period shall be
deemed to be a request for an Interest Period of one month. Each continuation or
conversion must be requested by the Borrower no later than 11:00 a.m. (i) on the
date for a requested conversion of a Eurocurrency Loan to a Base Rate Loan or
(ii) three Business Days prior to the date for a requested continuation of a
Eurocurrency Loan or conversion of a Base Rate Loan to a Eurocurrency Loan, in
each case pursuant to a written Notice of
52
<PAGE> 59
Continuation/Conversion submitted to the Administrative Agent which shall set
forth (A) whether the Loans to be continued or converted are Revolving Loans,
Tranche A Term Loans or Tranche B Term Loans, (B) whether the Loans to be
continued or converted are Foreign Currency Loans, (C) whether the Borrower
wishes to continue or convert such Loans and (D) if the request is to continue a
Eurocurrency Loan or convert a Base Rate Loan to a Eurocurrency Loan, the
Interest Period applicable thereto.
2.8 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurocurrency Loan shall be in a
minimum amount of $2,500,000 (or with respect to a Foreign Currency Loan, the
U.S. Dollar Equivalent of the applicable Foreign Currency) and in integral
multiples of $500,000 (or with respect to a Foreign Currency Loan, the U.S.
Dollar Equivalent of the applicable Foreign Currency) in excess thereof, (b)
each Base Rate Loan shall be in a minimum amount of the lesser of $500,000 (or
with respect to a Foreign Currency Loan, the U.S. Dollar Equivalent of the
applicable Foreign Currency) (and integral multiples of $500,000 (or with
respect to a Foreign Currency Loan, the U.S. Dollar Equivalent of the applicable
Foreign Currency) in excess thereof) or the remaining amount available under the
Revolving Committed Amount, the Tranche A Term Loan Committed Amount or the
Tranche B Term Loan Committed Amount, as applicable and (c) no more than fifteen
Eurocurrency Loans shall be outstanding hereunder at any one time. For the
purposes of this Section, all Eurocurrency Loans with the same Interest Periods
that begin and end on the same date shall be considered as one Eurocurrency
Loan, but Eurocurrency Loans with different Interest Periods, even if they begin
on the same date, shall be considered as separate Eurocurrency Loans.
2.9 CURRENCY EQUIVALENTS.
For purposes of determining compliance with Section 2.1(a), Section
2.2(a) Section 2.5, Section 2.6, Section 3.3(b)(i), Section 5.2(e), Section 8.1,
Section 8.6 and all other relevant Sections of this Agreement, (a) the amount of
each Foreign Currency Loan (a) shall be converted to its U.S. Dollar Equivalent
on (i) the date two Business Days prior to the date of the borrowing, conversion
or continuation with respect to such Foreign Currency Loan as set forth in the
applicable Foreign Currency Notice of Borrowing or Notice of
Continuation/Conversion and (ii) on the last Business Day of each calendar month
and (b) the amount of Indebtedness incurred pursuant to Section 8.1(l) and the
amount of any other Indebtedness incurred by a Credit Party or one of its
Subsidiaries shall be converted to its U.S. Dollar Equivalent on the last
Business Day of each calendar month (each such date in clause (a) and (b) above
referred to herein as a "Conversion Date"). From and after any Conversion Date,
until the next Conversion Date, each Foreign Currency Loan, all outstanding
Indebtedness pursuant to Section 8.1(l) and all other Indebtedness incurred by a
Credit Party or one of its Subsidiaries shall be deemed to remain equivalent to
the U.S. Dollar Equivalent determined in accordance with clauses (a) and (b)
above notwithstanding any fluctuation in exchange rates occurring thereafter.
53
<PAGE> 60
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
AND LETTERS OF CREDIT
3.1 INTEREST.
(a) Interest Rate. All Base Rate Loans shall accrue interest
at the Adjusted Base Rate and all Eurocurrency Loans shall accrue
interest at the Adjusted Eurocurrency Rate. All Swing Line Loans shall
accrue interest at the Adjusted Base Rate.
(b) Default Rate of Interest. Upon the occurrence, and during
the continuance, of (i) an Event of Default under Section 9.1(a) or
(ii) any other Event of Default with respect to which the Required
Lenders have taken affirmative action, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing (but not timely paid) hereunder or under the other Credit
Documents (including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to 2% plus the
rate which would otherwise be applicable (or if no rate is applicable,
then the rate for Revolving Loans that are Base Rate Loans plus two
percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day,
except that in the case of Eurocurrency Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding day.
(d) Additional Interest. Any Loan made in British Pounds
Sterling shall have added to the interest otherwise applicable to such
Loan the MLA Cost associated with such Loan.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Credit Party under this Credit Agreement shall be made without
setoff, deduction, counterclaim or withholding of any kind and received not
later than 2:00 p.m. (New York time for payments made in Dollars or local time
in the applicable country for payments made in Foreign Currency) on the date
when due, in Dollars or in the applicable Foreign Currency and in immediately
available funds, by (a) with respect to payments made in Dollars, the
Administrative Agent at its offices in Charlotte, North Carolina and (b) with
respect to payments made in Foreign Currency, the applicable Foreign Currency
Lender at such location as it shall direct. Payments received after such time
shall be deemed to have been received on the next Business Day. Payments of
principal or interest with respect to Foreign Currency Loans that are to be
shared by the Participants in accordance with the terms of Section 2.6 and
Section 3.7(c) shall be converted by the applicable Foreign Currency Lender (in
accordance with its normal currency conversion procedures) to Dollars on the
date such payments are received. The Borrower shall, at the time it
54
<PAGE> 61
makes any payment under this Credit Agreement, specify to the Administrative
Agent, the Loans, Letters of Credit, fees or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall, subject to Section 3.7, distribute such
payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute such payments to the
applicable Lenders on the date of receipt thereof if any such payment is
received prior to 2:00 p.m.; otherwise the Administrative Agent will distribute
such payment to the applicable Lenders on the next succeeding Business Day.
Whenever any payment hereunder 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 (subject to accrual of interest and fees for the period of such
extension), except that in the case of Eurocurrency Loans, if the extension
would cause the payment to be made in the next following calendar month, then
such payment shall instead be made on the next preceding Business Day.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. Loans may be prepaid in whole or in
part from time to time without premium or penalty; provided, however,
that (i) Eurocurrency Loans may only be prepaid on three Business Days'
prior written notice to the Administrative Agent, (ii) each such
partial prepayment of Loans shall be in the minimum principal amount of
$2,500,000 (or with respect to a Foreign Currency Loan, the U.S. Dollar
Equivalent of such Foreign Currency) and integral multiples of $500,000
(or with respect to a Foreign Currency Loan, the U.S. Dollar Equivalent
of such Foreign Currency) in excess thereof, and (iii) voluntary
prepayments with respect to the Term Loans (A) shall be applied pro
rata to the outstanding Tranche A Term Loans and the Tranche B Term
Loans and (B) within each tranche, shall be applied pro rata with
respect to each remaining Principal Amortization Payment; provided,
however, one or more holders of the Tranche B Term Loans may decline to
accept a voluntary prepayment under this Section 3.3(a) to the extent
there are sufficient Tranche A Term Loans outstanding and holders of
Tranche B Term Loans accepting such voluntary prepayment to be paid
with such prepayment, in which case such declined prepayments shall be
allocated (x) pro rata among the Tranche A Term Loans and the Tranche B
Term Loans held by Lenders accepting such prepayments and (y) within
each tranche, shall be applied pro rata with respect to each remaining
Principal Amortization Payment. All prepayments under this Section
shall be subject to Section 3.14.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. Subject to Section
2.9, if at any time (A) the sum of the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of Swing
Line Loans outstanding plus the aggregate amount of LOC
Obligations outstanding plus the aggregate amount of Foreign
Currency Loans outstanding exceeds the Revolving Committed
Amount, (B) the aggregate amount of Swing Line Loans
outstanding exceeds the Swing Line Committed Amount, (C) the
aggregate amount of LOC Obligations outstanding exceeds the
LOC Committed Amount or (D) the aggregate amount of Foreign
Currency Loans
55
<PAGE> 62
exceeds the Foreign Currency Committed Amount, the Borrower
shall immediately make a principal payment to the
Administrative Agent in a manner and in an amount necessary to
be in compliance with Sections 2.1, 2.2, 2.5 and 2.6, as
applicable, and as directed by the Administrative Agent (any
such prepayment with respect to clause (A) above to be applied
as set forth in Section 3.3(c) below).
(ii) Asset Dispositions. Immediately upon receipt by
a Credit Party or any of its Subsidiaries of proceeds from any
Asset Disposition or from an asset sale referred to in clause
(i) of Section 8.5 the proceeds of which are to be applied as
a prepayment hereunder, the Borrower shall forward 100% of the
Net Cash Proceeds of such Asset Disposition to the Lenders as
a prepayment of the Loans (to be applied as set forth in
Section 3.3(c) below); provided that Net Cash Proceeds used to
pay for cash losses incurred in connection with a plant
closing shall be excluded from this requirement up to a
maximum amount of $10,000,000, in the aggregate, per fiscal
year.
(iii) Excess Cash Flow. Within 90 days after the end
of each fiscal year of the Borrower, beginning with the fiscal
year ending December 31, 2001, (A) if the Senior Leverage
Ratio as of the end of such fiscal year (as reported in the
Officer's Compliance Certificate with respect to such fiscal
year) is equal to or greater than 3.0 to 1.0, the Borrower
shall prepay Loans in an amount equal to 75% of the Excess
Cash Flow earned during such fiscal year, and (B) if the
Senior Leverage Ratio as of the end of such fiscal year (as
reported in the Officer's Compliance Certificate with respect
to such fiscal year) is less than 3.0 to 1.0, the Borrower
shall prepay Loans in an amount equal to 50% of Excess Cash
Flow earned during such fiscal year (all such prepayments to
be applied as set forth in Section 3.3(c) below).
(iv) Issuances of Debt. Immediately upon receipt by a
Credit Party or any of its Subsidiaries of proceeds from any
Debt Issuance, the Borrower shall prepay Loans in an amount
equal to 100% of the Net Cash Proceeds of such Debt Issuance
(all such prepayments to be applied as set forth in Section
3.3(c) below).
(v) Issuances of Equity. Immediately upon receipt by
a Credit Party or any of its Subsidiaries of proceeds from any
Equity Issuance other than an Excluded Equity Issuance, the
Borrower shall prepay Loans in an amount equal to 50% of the
Net Cash Proceeds of such Equity Issuance (all such
prepayments to be applied as set forth in Section 3.3(c)
below).
(c) Application of Prepayments. All amounts required to be
paid pursuant to Section 3.3(b)(i)(A) shall be applied first to
Revolving Loans, second to Swing Line Loans, third to Foreign Currency
Loans (or the cash collateralization thereof) and fourth to a cash
collateral account in respect of LOC Obligations. All amounts required
to be paid pursuant to Section 3.3(b)(ii) above shall (x) with respect
to the disposition of assets in the United States, be applied pro rata
among (1) the Tranche A Term Loans, (2) the
56
<PAGE> 63
Tranche B Term Loans (and, within each tranche of Term Loans, pro rata
among the remaining Principal Amortization Payments), and (3)
collectively, the aggregate amount of Revolving Loans, Swing Line Loans
and Foreign Currency Loans; provided that the Borrower may choose the
application of the prepayment among the Revolving Loans, the Swing Line
Loans and the Foreign Currency Loans and any such prepayment of
Revolving Loans, Swing Line Loans and Foreign Currency Loans shall be
accompanied by a corresponding permanent reduction in the Revolving
Committed Amount and (y) with respect to the disposition of assets
outside of the United States, be applied first pro rata to Foreign
Currency Loans with a corresponding permanent reduction in the Foreign
Currency Committed Amount and the Revolving Committed Amount and
second, if all outstanding Foreign Currency Loans have been repaid, pro
rata among (1) the Tranche A Term Loans, (2) the Tranche B Term Loans
(and, within each tranche of Term Loans, pro rata among the remaining
Principal Amortization Payments) and (3) collectively, the aggregate
amount of Revolving Loans and Swing Line Loans; provided that the
Borrower may choose the application of prepayments between the
Revolving Loans and the Swing Line Loans and any such prepayment of
Revolving Loans and Swing Line Loans shall be accompanied by a
corresponding permanent reduction in the Revolving Committed Amount.
All amounts required to be paid pursuant to Section 3.3(b)(iii), (iv)
and (v) above shall be applied pro rata to the Tranche A Term Loans and
the Tranche B Term Loans, and within each tranche of Term Loans, pro
rata among the remaining Principal Amortization Payments until the
Tranche A Term Loans and Tranche B Term Loans have been paid in full.
Within the parameters of the applications set forth above, prepayments
shall be applied first to Base Rate Loans and then to Eurocurrency
Loans in direct order of Interest Period maturities. All prepayments
hereunder shall be subject to Section 3.14 and shall be accompanied by
interest on the principal amount prepaid through the date or
prepayment. One or more holders of the Tranche B Term Loans may decline
to accept a mandatory prepayment under Section 3.3(b) to the extent
there are sufficient Tranche A Term Loans outstanding and holders of
Tranche B Term Loans accepting such mandatory prepayment to be paid
with such prepayment, in which case such declined prepayments shall be
allocated (x) pro rata among the Tranche A Term Loans and the Tranche B
Term Loans held by Lenders accepting such prepayments and (y) within
each tranche, shall be applied pro rata with respect to each remaining
Principal Amortization Payment.
3.4 FEES.
(a) Commitment Fees. In consideration of the Revolving
Committed Amount being made available by the Lenders hereunder, the
Borrower agrees to pay to the Administrative Agent, for the pro rata
benefit of each applicable Lender (based on each Lender's Revolving
Loan Commitment Percentage of the Revolving Committed Amount), a fee
equal to the product of (a) 0.50% per annum multiplied by (b) the
Unused Commitment (the "Commitment Fees"). The accrued Commitment Fees
shall commence to accrue on the Effective Date and shall be due and
payable in arrears five (5) Business Days after the end of each
calendar quarter (as well as on the Revolving Loan Maturity Date) for
the immediately preceding calendar quarter (or portion thereof),
beginning with the first of such dates to occur after the Closing Date.
57
<PAGE> 64
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the
issuance of Letters of Credit hereunder, the Borrower agrees
to pay to the Issuing Lender, for the pro rata benefit of the
applicable Lenders (based on each Lender's Revolving Loan
Commitment Percentage of the Revolving Committed Amount) a fee
(the "Letter of Credit Fee") equal to the Applicable
Percentage for the Letter of Credit Fee on the average daily
maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration.
The Letter of Credit Fee will be payable quarterly in arrears
5 Business Days after the end of each calendar quarter and on
the Revolving Loan Maturity Date.
(ii) Issuing Lender Fees. In addition to the Letter
of Credit Fees payable pursuant to subsection (i) above, the
Borrower shall pay to the Issuing Lender for its own account,
without sharing by the other Lenders, (A) a fee equal to
one-eighth of one percent (1/8%) per annum on the total sum of
all Letters of Credit issued by the Issuing Lender, such fee
to be paid quarterly in arrears 5 Business Days after the end
of each calendar quarter (as well as on the Revolving Loan
Maturity Date) and (B) the customary charges from time to time
to the Issuing Lender for its services in connection with the
issuance, amendment, payment, transfer, administration,
cancellation and conversion of, and drawings under, such
Letters of Credit (collectively, the "Issuing Lender Fees").
(c) Foreign Currency Lender Fees. The Borrower shall pay to
the applicable Foreign Currency Lender, at the time a Foreign Currency
Loan is made, a fee equal to .25% per annum on the total amount of the
Foreign Currency Loan made (the "Foreign Currency Fronting Fees").
(d) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent in the Fee Letter.
3.5 PAYMENT IN FULL AT MATURITY.
(a) On the Revolving Loan Maturity Date, the entire
outstanding principal balance of all Revolving Loans, all Swing Line
Loans, all Foreign Currency Loans and all LOC Obligations, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.
(b) On the Tranche A Term Loan Maturity Date, the entire
outstanding principal balance of all Tranche A Term Loans, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.
58
<PAGE> 65
(c) On the Tranche B Term Loan Maturity Date, the entire
outstanding principal balance of all Tranche B Term Loans, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans determined by reference to the
Prime Rate or Loans made in British Pounds Sterling, in which case
interest shall be computed on the basis of a 365 or 366 day year as the
case may be, all computations of interest and fees hereunder shall be
made on the basis of the actual number of days elapsed over a year of
360 days. Interest shall accrue from and include the date of borrowing
(or continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrower are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrower or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans
or any other indebtedness evidenced by any of the Credit Documents does
not include the right to receive any interest which has not otherwise
accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such demand.
All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated
term (including any renewal or extension) of the Loans so that the
amount of interest on account of such indebtedness does not exceed the
maximum nonusurious amount permitted by applicable law.
59
<PAGE> 66
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Revolving Loans and Term Loans. Each Revolving Loan
borrowing (including, without limitation, each Mandatory Borrowing),
each payment or prepayment of principal of any Revolving Loan or Term
Loan, each payment of fees (other than the Issuing Lender Fees retained
by the Issuing Lender for its own account and the administrative fees
retained by the Administrative Agent for its own account), each
reduction of the Revolving Committed Amount, the Tranche A Term Loan
Committed Amount or the Tranche B Term Loan Committed Amount, and each
conversion or continuation of any Revolving Loan, Tranche A Term Loan
or Tranche B Term Loan, shall be allocated pro rata among the relevant
Lenders in accordance with the respective Revolving Loan Commitment
Percentages, Tranche A Term Loan Commitment Percentages and Tranche B
Term Loan Commitment Percentages, as applicable, of such Lenders (or,
if the Commitments of such Lenders have expired or been terminated, in
accordance with the respective principal amounts of the outstanding
Revolving Loans, Tranche A Term Loans, Tranche B Term Loans and
Participation Interests of such Lenders); provided that, if any Lender
shall have failed to pay its applicable pro rata share of any Revolving
Loan, Tranche A Term Loan or Tranche B Term Loan, then any amount to
which such Lender would otherwise be entitled pursuant to this
subsection (a) shall instead be payable to the Administrative Agent;
provided further, that in the event any amount paid to any Lender
pursuant to this subsection (a) is rescinded or must otherwise be
returned by the Administrative Agent, each Lender shall, upon the
request of the Administrative Agent, repay to the Administrative Agent
the amount so paid to such Lender, with interest for the period
commencing on the date such payment is returned by the Administrative
Agent until the date the Administrative Agent receives such repayment
at a rate per annum equal to, during the period to but excluding the
date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus two percent (2%) per annum.
(b) Letters of Credit. Each payment of unreimbursed drawings
in respect of LOC Obligations shall be allocated to each Participant
pro rata in accordance with its Revolving Loan Commitment Percentage;
provided that, if any Participant shall have failed to pay its
applicable pro rata share of any drawing under any Letter of Credit,
then any amount to which such Participant would otherwise be entitled
pursuant to this subsection (b) shall instead be payable to the Issuing
Lender; provided further, that in the event any amount paid to any
Participant pursuant to this subsection (b) is rescinded or must
otherwise be returned by the Issuing Lender, each Participant shall,
upon the request of the Issuing Lender, repay to the Administrative
Agent for the account of the Issuing Lender the amount so paid to such
Participant, with interest for the period commencing on the date such
payment is returned by the Issuing Lender until the date the Issuing
Lender receives such repayment at a rate per annum equal to, during the
period to but excluding the date two Business Days after such request,
the Federal Funds Rate, and thereafter, the Base Rate plus two percent
(2%) per annum.
60
<PAGE> 67
(c) Foreign Currency Loans. Each Foreign Currency Lender shall
receive, for its own account, all payments or prepayments of principal
and all Foreign Currency Fronting Fees with respect to its Foreign
Currency Loans; provided, however, upon the funding of the
Participants' participation interests with respect to a Foreign
Currency Loan pursuant to Section 2.6(d), such Participants shall be
deemed Foreign Currency Lenders with respect to such Foreign Currency
Loan and shall be entitled to receive their pro rata share of any
payment or prepayment of principal with respect to such Foreign
Currency Loan. Until the Participants are required to fund their
participation interest in a Foreign Currency Loan, subject to Section
3.1(b), (i) the Foreign Currency Lender that made such Foreign Currency
Loan shall receive interest on such Foreign Currency Loan equal to (A)
(x) for any portion of such Foreign Currency Loan consisting of a Base
Rate Loan, the Base Rate and (y) for any portion of such Foreign
Currency Loan consisting of a Eurocurrency Loan, the Eurocurrency Rate,
plus (B) its pro rata share (based on its Revolving Loan Commitment
Percentage) of the Applicable Percentage for such Foreign Currency
Loan, and (ii) each Participant shall receive interest on such Foreign
Currency Loan in an amount equal to its pro rata share (based on its
Revolving Loan Commitment Percentage) of the Applicable Percentage for
such Foreign Currency Loan. After the Participants fund their
participation interests in a Foreign Currency Loan, subject to Section
3.1(b), each Foreign Currency Lender with respect to such Foreign
Currency Loan shall receive interest on such Foreign Currency Loan
equal to (1) for any portion of such Foreign Currency Loan consisting
of a Base Rate Loan, the Adjusted Base Rate and (2) for any portion of
such Foreign Currency Loan consisting of a Eurocurrency Loan, the
Adjusted Eurocurrency Rate.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly pay in cash or purchase
from the other Lenders a participation in such Loans, LOC Obligations, and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Credit Parties agree that
any Lender so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including
61
<PAGE> 68
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan, LOC Obligation or other
obligation in the amount of such participation. Except as otherwise expressly
provided in this Credit Agreement, if any Lender or the Administrative Agent
shall fail to remit to the Administrative Agent or any other Lender an amount
payable by such Lender or the Administrative Agent to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon if
paid within two Business Days of the date when such amount is due at a per annum
rate equal to the Federal Funds Rate and thereafter at a per annum rate equal to
the Base Rate until the date such amount is paid to the Administrative Agent or
such other Lender. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
If any Lender has determined that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance by
such Lender, or its parent corporation, 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, in each case after the date hereof, has or
would have the effect of reducing the rate of return on such Lender's (or parent
corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender, or its parent
corporation, could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's)
policies with respect to capital adequacy), then, upon notice from such Lender
to the Borrower, the Borrower shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis (after taking into account applicable deductions and credits in respect of
the amount indemnified) for such reduction. Each determination by any such
Lender of amounts owing under this Section shall, absent demonstrable error, be
conclusive and binding on the parties hereto. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter, and will also give prompt written
notice to the Borrower when such conditions no longer exist. If such notice is
given (a) any Eurocurrency Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate
62
<PAGE> 69
Loans, (b) any Loans that were to have been converted on the first day of such
Interest Period to or continued as Eurocurrency Loans shall be converted to or
continued as Base Rate Loans and (c) any outstanding Eurocurrency Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans. Until
such notice has been withdrawn by the Administrative Agent, no further
Eurocurrency Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Base Rate Loans to Eurocurrency Loans.
3.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurocurrency Loans as contemplated by this Credit Agreement, (a)
such Lender shall promptly give written notice of such circumstances to the
Borrower and the Administrative Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender hereunder
to make Eurocurrency Loans, continue Eurocurrency Loans as such and convert a
Base Rate Loan to Eurocurrency Loans shall forthwith be canceled and, until such
time as it shall no longer be unlawful for such Lender to make or maintain
Eurocurrency Loans, such Lender shall then have a commitment only to make a Base
Rate Loan when a Eurocurrency Loan is requested and (c) such Lender's Loans then
outstanding as Eurocurrency Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days or the then current Interest Periods
with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurocurrency Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to Section
3.14.
3.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurocurrency Loans
made by it or its obligation to make Eurocurrency Loans, or change the
basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 3.13(b)) and changes in taxes
measured by or imposed upon the overall net income, or franchise tax
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
63
<PAGE> 70
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurocurrency Rate
hereunder; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such increased cost or reduced amount receivable, provided that, in any such
case, the Borrower may elect to convert the Eurocurrency Loans made by such
Lender hereunder to Base Rate Loans by giving the Administrative Agent at least
one Business Day's notice of such election, in which case the Borrower shall
promptly pay to such Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.14. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 3.12, it shall provide
prompt notice thereof to the Borrower, through the Administrative Agent,
certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this Section 3.12 submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive and binding on the
parties hereto in the absence of demonstrable error. This covenant shall survive
the termination of this Credit Agreement and the payment of the Loans and all
other amounts payable hereunder.
3.13 TAXES.
(a) Except as provided below in this Section 3.13, all
payments made by a Credit Party under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or Governmental Authority, agency or other
official, excluding taxes measured by or imposed upon the overall net
income of any Lender or its applicable lending office, or any branch or
affiliate thereof, and all franchise taxes, branch taxes, taxes on
doing business or taxes on the overall capital or net worth of any
Lender or its applicable lending office, or any branch or affiliate
thereof, in each case imposed in lieu of net income taxes, imposed: (i)
by the jurisdiction under the laws of which such Lender, applicable
lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within
which such jurisdiction is located or any political subdivision
thereof; or (ii) by reason of any connection between the jurisdiction
imposing such tax and such Lender, applicable lending office, branch or
64
<PAGE> 71
affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received
payment under or enforced, this Credit Agreement or any Notes. If any
such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Administrative Agent or any
Lender hereunder or under any Notes, (A) the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the Credit
Parties shall be entitled to deduct and withhold any Non-Excluded Taxes
and shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of
America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this Section 3.13 whenever any
Non-Excluded Taxes are payable by a Credit Party, and (B) as promptly
as possible thereafter such Credit Party shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by such Credit Party showing payment thereof. If a
Credit Party fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence,
such Credit Party shall indemnify the Administrative Agent and any
Lender for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any
such failure. If a Lender shall change its office that makes or
maintains a Loan hereunder, the Credit Parties shall not be required to
pay any increased amounts to the Lender in respect of any Non-Excluded
Taxes pursuant to this Section 3.13 in excess of the amount of the
Non-Excluded Taxes that existed on the date the Lender changed such
office, unless the Lender changed the office at the request of a Credit
Party. The agreements in this subsection shall survive the termination
of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment
by a Credit Party under this Credit Agreement or
Notes to such Lender, deliver to the Borrower and the
Administrative Agent (x) two duly completed copies of
United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may
be, certifying that it is entitled to receive
payments under this Credit Agreement and any Notes
without deduction or withholding of any United States
federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is
entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any such
form or certification
65
<PAGE> 72
on or before the date that any such form or
certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the
most recent form previously delivered by it to the
Borrower; and
(C) obtain such extensions of time
for filing and complete such forms or certifications
as may reasonably be requested by the Borrower or the
Administrative Agent; or
(ii) in the case of any such Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (A) represent to the Borrower (for the benefit of the
Borrower and the Administrative Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code, (B)
agree to furnish to the Borrower, on or before the date of any
payment by the Borrower, with a copy to the Administrative
Agent, two accurate and complete original signed copies of
Internal Revenue Service Form W-8, or successor applicable
form certifying to such Lender's legal entitlement at the date
of such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Credit Agreement and
any Notes (and to deliver to the Borrower and the
Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms),
and (C) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Administrative Agent)
such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption
from withholding with respect to payments under this Credit
Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrower and the Administrative
Agent then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender pursuant
to Section 11.3 shall, upon the effectiveness of the related transfer,
be required to provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the case of
a participant of a Lender, the obligations of such participant of a
Lender pursuant to this subsection (b) shall be determined as if the
participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall
have been purchased.
(c) If any such taxes shall be or become applicable after the
date of this Credit Agreement to such payments by the Credit Parties to
a Lender, such Lender shall use reasonable efforts to make, fund or
maintain the Loan or Loans, as the case may be,
66
<PAGE> 73
through another lending office located in another jurisdiction so as to
reduce, to the fullest extent possible, the Credit Parties' liability
hereunder, if the making, funding or maintenance of such Loan or Loans
through such other office does not, in the reasonable judgment of the
Lender, materially affect the Lender of such Loan. If a Credit Party is
required to make any additional payment to a Lender pursuant to this
Section 3.13, and any such Lender receives, or is entitled to receive,
a credit against, remission for, or repayment of, any tax paid or
payable by it in respect of, or calculated with reference to, the taxes
giving rise to such payment, such Lender shall, within a reasonable
time after it receives such credit, relief, remission or repayment,
reimburse such Credit Party the amount of any such credit, relief,
remission or repayment.
3.14 INDEMNITY.
The Credit Parties promise to indemnify each Lender and to hold each
Lender harmless from any loss or expense which such Lender may sustain or incur
(other than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurocurrency Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurocurrency Loan
after the Borrower has given a notice thereof in accordance with the provisions
of this Credit Agreement, (c) the making of a prepayment of Eurocurrency Loans
on a day which is not the last day of an Interest Period with respect thereto
and (d) any assignment of a portion of such Lender's Commitments and Loans
during the 180 day period following the Effective Date on account of the
syndication of the Credit Facilities. Such indemnification may include an amount
equal to (i) the present value of the amount of interest which would have
accrued on the amount so prepaid, so assigned or not so borrowed, converted or
continued, for the period from the date of such prepayment or assignment or of
such failure to borrow, convert or continue to the last day of the applicable
Interest Period (or, in the case of a failure to borrow, convert or continue,
the Interest Period that would have commenced on the date of such failure) in
each case at the applicable rate of interest for such Eurocurrency Loans
provided for herein (excluding, however, the Applicable Percentage included
therein, if any) minus (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank Eurocurrency market. The agreements in this Section shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.15 SUBSTITUTION OF LENDER; RELOCATION.
In the event a Lender makes a request to the Borrower for compensation
in accordance with Section 3.9, 3.11, 3.12 or 3.13, or claims it is unable to
make or maintain Eurocurrency Loans, then, provided that no Event of Default has
occurred and is continuing at such time, the Borrower may, at its option either
(a) at its own expense (such expense to include any transfer
fee payable to the Administrative Agent under Section 11.3(b) and any
expense pursuant to Section 3.14), and in its sole discretion require
such Lender to transfer and assign in whole (but not in
67
<PAGE> 74
part), without recourse (in accordance with and subject to the terms
and conditions of Section 11.3(b)), all of its interests, rights and
obligations under this Credit Agreement to an Eligible Assignee which
shall assume such assigned obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) such
assignment shall not conflict with any Requirement of Law or order of
any court or other Governmental Authority, and (ii) the Borrower or
such assignee shall have paid to the assigning Lender in immediately
available funds the principal of and interest accrued to the date of
such payment on the portion of the Loans hereunder held by such
assigning Lender and all other amounts owed to such assigning Lender
hereunder; or
(b) request that such Lender use its reasonable efforts
(consistent with legal and regulatory restrictions) to avoid the need
for paying such compensation or such inability, including changing the
jurisdiction of its applicable lending office; provided, however, that
the taking of such action would not, in the sole judgment of such
Lender, be disadvantageous to such Lender and provided further that, if
and to the extent the Borrower shall make the request described in this
paragraph (b) and such request shall be denied, such denial shall not
preclude the Borrower from exercising its rights under paragraph (a)
above.
3.16 ALL BORROWERS TREATED EQUALLY.
Each Lender agrees that it will not make a request for compensation
pursuant to any of Sections 3.9, 3.11, 3.12 or 3.13, or claim it is unable to
make or maintain Eurocurrency Loans, unless such Lender at such time is making a
similar claim for compensation or inability of all or substantially all of its
borrowers which are similarly situated.
3.17 LIMITATION ON MAKING CLAIMS.
Notwithstanding anything herein to the contrary, the Borrower shall not
be required to make any payments to any Lender pursuant to Sections 3.9, 3.11,
3.12 or 3.13 relating to any period of time which is greater than 180 days prior
to such Lender's request for additional payment except for retroactive
application of such law, rule or regulation, in which case the Borrower is
required to make such payments for so long as such Person makes a request
therefor within 180 days of the public announcement of such retroactive
publication.
SECTION 4
DOMESTIC GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Domestic Guarantors hereby,
jointly and severally, unconditionally guarantees (the "Guaranty") to each
Lender, each Affiliate of a Lender that enters into a Hedging Agreement and the
Agents the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
68
<PAGE> 75
otherwise). This Guaranty is a guaranty of payment and not of collection and is
a continuing guaranty and shall apply to all Credit Party Obligations whenever
arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Domestic Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Domestic Guarantor agrees that this Guaranty may be
enforced by the Lenders without the necessity at any time of resorting to or
exhausting any other security or collateral and without the necessity at any
time of having recourse to the Notes or any other of the Credit Documents or any
Collateral, if any, hereafter securing the Credit Party Obligations or otherwise
and each Domestic Guarantor hereby waives the right to require the Lenders to
proceed against the Borrower or any other Person (including a co-guarantor) or
to require the Lenders to pursue any other remedy or enforce any other right.
Each Domestic Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against a Borrower or any
other Domestic Guarantor of the Credit Party Obligations for amounts paid under
this Guaranty until such time as the Lenders (and any Affiliates of Lenders
entering into Hedging Agreements) have been paid in full, all Commitments under
the Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Each Domestic Guarantor further agrees that nothing contained herein shall
prevent the Lenders from suing on the Notes or any of the other Credit Documents
or any of the Hedging Agreements or foreclosing its security interest in or Lien
on any Collateral, if any, securing the Credit Party Obligations or from
exercising any other rights available to it under this Credit Agreement, the
Notes, any other of the Credit Documents, or any other instrument of security,
if any, and the exercise of any of the aforesaid rights and the completion of
any foreclosure proceedings shall not constitute a discharge of any of any
Domestic Guarantor's obligations hereunder; it being the purpose and intent of
each Domestic Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances. Neither any
Domestic Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrower or by reason of the bankruptcy or insolvency of
the Borrower. Each Domestic Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Credit Party Obligations and notice
of or proof of reliance by the Administrative Agent or any Lender upon this
Guaranty or acceptance of this Guaranty. The Credit Party Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guaranty. All dealings between the Borrower and any of the Domestic Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other
hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Domestic Guarantors further agree to all rights
of set-off as set forth in Section 11.2.
69
<PAGE> 76
4.3 MODIFICATIONS.
Each Domestic Guarantor agrees that (a) all or any part of the
Collateral now or hereafter held for the Credit Party Obligations, if any, may
be exchanged, compromised or surrendered from time to time; (b) the Lenders
shall not have any obligation to protect, perfect, secure or insure any such
security interests, Liens or encumbrances now or hereafter held, if any, for the
Credit Party Obligations or the properties subject thereto; (c) the time or
place of payment of the Credit Party Obligations may be changed or extended, in
whole or in part, to a time certain or otherwise, and may be renewed or
accelerated, in whole or in part; (d) the Borrower and any other party liable
for payment under the Credit Documents may be granted indulgences generally; (e)
any of the provisions of the Notes or any of the other Credit Documents may be
modified, amended or waived; (f) any party (including any co-guarantor) liable
for the payment thereof may be granted indulgences or be released; and (g) any
deposit balance for the credit of the Borrower or any other party liable for the
payment of the Credit Party Obligations or liable upon any security therefor may
be released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Domestic Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Domestic Guarantor expressly waives to the fullest extent
permitted by applicable law: (a) notice of acceptance of this Guaranty by the
Lenders and of all extensions of credit to the Borrower by the Lenders; (b)
presentment and demand for payment or performance of any of the Credit Party
Obligations; (c) protest and notice of dishonor or of default (except as
specifically required in the Credit Agreement) with respect to the Credit Party
Obligations or with respect to any security therefor; (d) notice of the Lenders
obtaining, amending, substituting for, releasing, waiving or modifying any
security interest, Lien or encumbrance, if any, hereafter securing the Credit
Party Obligations, or the Lenders' subordinating, compromising, discharging or
releasing such security interests, Liens or encumbrances, if any; (e) all other
notices to which such Domestic Guarantor might otherwise be entitled; and (f)
except as specifically required under this Agreement, demand for payment under
this Guaranty.
4.5 REINSTATEMENT.
The obligations of the Domestic Guarantors under this Section 4 shall
be automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Domestic Guarantor agrees that it will
indemnify the Administrative Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, reasonable fees and expenses
of counsel) incurred by the Administrative Agent or such Lender in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
70
<PAGE> 77
4.6 REMEDIES.
The Domestic Guarantors agree that, to the fullest extent permitted by
law, as between the Domestic Guarantors, on the one hand, and the Administrative
Agent and the Lenders, on the other hand, the Credit Party Obligations may be
declared to be forthwith due and payable as provided in Section 9.2 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in said Section 9.2) for purposes of Section 4.1 notwithstanding any
stay, injunction or other prohibition preventing such declaration (or preventing
the Credit Party Obligations from becoming automatically due and payable) as
against any other Person and that, in the event of such declaration (or the
Credit Party Obligations being deemed to have become automatically due and
payable), the Credit Party Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by the Domestic Guarantors
for purposes of Section 4.1. The Domestic Guarantors acknowledge and agree that
their obligations hereunder are secured in accordance with the terms of the
Collateral Documents and that the Lenders may exercise their remedies thereunder
in accordance with the terms thereof.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any Domestic
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Domestic Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code).
4.8 RIGHTS OF CONTRIBUTION.
The Domestic Guarantors agree among themselves that, in connection with
payments made hereunder, each Domestic Guarantor shall have contribution rights
against the other Domestic Guarantors as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of such Domestic Guarantors under the Credit Documents and no
Domestic Guarantor shall exercise such rights of contribution until all Credit
Party Obligations have been paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction of the following
conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes, (iii) the Collateral Documents and (iv) all other Credit
Documents, each in form and substance acceptable to the Lenders in
their sole discretion.
71
<PAGE> 78
(b) Corporate Documents. With respect to each Domestic Credit
Party, receipt by the Administrative Agent of the following:
(i) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of such Person certified to be true
and complete as of a recent date by the appropriate
Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Person to be
true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws of such
Person certified by a secretary or assistant
secretary of such Person to be true and correct as of
the Effective Date.
(iii) Resolutions. Copies of resolutions of
the Board of Directors of such Person approving and
adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a
secretary or assistant secretary of such Person to be
true and correct and in force and effect as of the
Effective Date.
(iv) Good Standing. Copies of certificates
of good standing, existence or its equivalent with
respect to such Person certified as of a recent date
by the appropriate Governmental Authorities of the
state or other jurisdiction of incorporation and each
other jurisdiction in which the failure to so qualify
and be in good standing could have or could
reasonably be expected to have a Material Adverse
Effect on the business or operations of such Person
in such jurisdiction.
(v) Incumbency. An incumbency certificate of
such Person certified by a secretary or assistant
secretary of such Person to be true and correct as of
the Closing Date.
(c) Financial Statements. The Agents shall have received and,
in each case, be satisfied with (i) interim estimated monthly
consolidated financial statements of the Credit Parties and their
Subsidiaries for each month subsequent to December 31, 1999 (which
shall be available by the 15th day of the succeeding month), (ii)
interim monthly consolidated financial statements of the Credit Parties
and their Subsidiaries for each fiscal month after December 31, 1999
(which shall be available by the 25th day of each succeeding month),
(iii) monthly working capital detail of the Credit Parties and their
Subsidiaries for the twelve month period ending on the Closing Date and
the monthly working capital detail projections for the first year
following the Closing Date and (iv) a pro forma consolidated balance
sheet of the Credit Parties and their Subsidiaries as of the Closing
Date as well as pro forma consolidated financial statements of the
Credit Parties and their Subsidiaries for the year ended December 31,
1999 and for the twelve months ended July 2, 2000 (collectively, the
"Adjusted Pro Forma Financial Statements"), together with a certificate
of
72
<PAGE> 79
the chief financial officer of the Parent to the effect that such
statements accurately present the pro forma financial position of the
Credit Parties and their Subsidiaries in accordance with GAAP, in each
case after giving effect to (A) the Transaction, (B) all completed,
probable and pending acquisitions and/or divestitures (including,
without limitation, the assets of the Wheeling Closure Facility and the
Warren Lithography Facility), (C) the financings and other transactions
contemplated hereby and reflecting estimated purchase price accounting
adjustments, that have been reviewed by independent public accountants
of recognized national standing and meeting the requirements of
Regulation S-X under the Securities Act, as amended, applicable to a
Registration Statement under the Securities Act on Form S-1 and (D) the
annual management fee of $750,000 payable to the Sponsor. Such pro
forma financial statements (1) for the twelve months ended December 31,
1999 shall evidence minimum EBITDA of $107 million, (2) for the twelve
months ended June 30, 2000 shall evidence minimum EBITDA of $101.5
million and (3) for the most recent twelve month period ending prior to
the Closing Date (for which monthly financial statements are available
as required in clause (ii) above) shall evidence minimum EBITDA of
$101.5 million; provided such EBITDA figures in this sentence shall
exclude up to $3.3 million of the one-time expenses and any pro forma
cost savings resulting from the reduction in force announced by the
Borrower in July, 2000.
(d) Opinion of Counsel. Receipt by the Agents of an opinion,
or opinions (including, without limitation, local counsel opinions and
foreign counsel opinions, which shall cover, among other things,
authority, legality, validity, binding effect, enforceability and
perfection of Liens and security interests), satisfactory to the
Agents, addressed to the Agents and the Lenders and dated as of the
Effective Date, from legal counsel to the Credit Parties and their
Subsidiaries.
(e) Personal Property Collateral. The Collateral Agent shall
have received (in form and substance satisfactory to the Collateral
Agent):
(i) searches of Uniform Commercial Code filings in
the jurisdiction of the chief executive office of each
Domestic Credit Party and each jurisdiction where any
Collateral is located or where a filing would need to be made
in order to perfect the Lenders' security interest in the
Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Collateral
Agent's sole discretion, to perfect the Lenders' security
interest in the Collateral;
(iii) searches of ownership of intellectual property
in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the
Collateral Agent to the extent necessary to perfect the
Lenders' security interest in the Collateral;
73
<PAGE> 80
(iv) all stock certificates evidencing the stock
pledged to the Lenders pursuant to the Pledge Agreement,
together with duly executed in blank undated stock powers
attached thereto;
(v) all instruments and chattel paper in the
possession of any of the Domestic Credit Parties, together
with allonges or assignments as may be necessary or
appropriate to perfect the Lenders' security interest in the
Collateral;
(vi) such estoppel letters, consents and waivers from
landlords of real property leased to a Credit Party as may be
reasonably requested by the Collateral Agent; and
(vii) such other collateral documentation as may be
required by the Collateral Agent in its sole reasonable
discretion in order to perfect and protect the Lenders'
security interest in the Collateral.
(f) Owned Real Property Collateral. The Collateral Agent shall
have received (in form and substance satisfactory to the Collateral
Agent):
(i) fully executed and notarized mortgages, deeds of
trust or deeds to secure debt (each a "Mortgage" and
collectively the "Mortgages") encumbering the fee interest of
the Domestic Credit Parties in each real property asset owned
by a Domestic Credit Party set forth on Schedule 5.1(f)(i)
(each a "Mortgaged Property" and collectively the "Mortgaged
Properties"), together with such UCC-1 financing statements as
the Collateral Agent shall deem appropriate with respect to
each such Mortgaged Property;
(ii) an opinion of counsel (which counsel shall be
reasonably satisfactory to the Collateral Agent) in the state
in which each Mortgaged Property is located with respect to
the enforceability of the form of Mortgage and sufficiency of
the form of UCC-1 financing statements to be recorded or filed
in such state, if applicable, and such other matters as the
Collateral Agent may request;
(iii) ALTA or other appropriate form mortgagee title
insurance policies (the "Mortgage Policies") issued by a title
insurer company satisfactory to the Collateral Agent (the
"Title Insurance Company"), in an amount reasonably
satisfactory to the Collateral Agent with respect to each
Mortgaged Property, assuring the Collateral Agent that the
Mortgages, as applicable, create valid and enforceable first
priority mortgage liens on the respective Mortgaged Property,
free and clear of all defects and encumbrances except
Permitted Liens, and containing such endorsements as shall be
reasonably required by the Collateral Agent.
(iv) evidence as to (A) whether any Mortgaged
Property is in an area designated by the Federal Emergency
Management Agency as having special
74
<PAGE> 81
flood or mud slide hazards (a "Flood Hazard Property") and (B)
if any Mortgaged Property is a Flood Hazard Property, (1)
whether the community in which such Mortgaged Property is
located is participating in the National Flood Insurance
Program, (2) the applicable Domestic Credit Party's written
acknowledgment of receipt of written notification from the
Collateral Agent (a) as to the fact that such Mortgaged
Property is a Flood Hazard Property and (b) as to whether the
community in which each such Flood Hazard Property is located
is participating in the National Flood Insurance Program and
(3) copies of insurance policies or certificates of insurance
of the applicable Domestic Credit Party evidencing flood
insurance satisfactory to the Collateral Agent and naming the
Collateral Agent as sole loss payee on behalf of the Lenders;
(v) a real estate valuation for each of the Mortgaged
Properties reasonably acceptable to the Collateral Agent;
(vi) an environmental assessment for each Mortgaged
Property (other than the Mortgaged Properties located in
Tallapoosa, Georgia (42 Lipham Street), Danville, Illinois,
Baltimore, Maryland, Horsham, Pennsylvania, Hubbard, Ohio and
Dallas, Texas) from a consulting firm acceptable to the
Collateral Agent; and
(vii) such other real property collateral
documentation as may be required by the Collateral Agent in
its sole reasonable discretion in order to perfect and protect
the Lenders' security interest in the Collateral, including,
without limitation, any real property collateral documentation
required by the Collateral Agent with respect to the
Collateral pledged by the Foreign Credit Parties.
(g) Evidence of Insurance. Receipt by the Collateral Agent of
copies of insurance policies or certificates of insurance of the
Domestic Credit Parties and their Subsidiaries evidencing liability and
casualty insurance meeting the requirements set forth in the Credit
Documents, including, but not limited to, naming the Collateral Agent
as additional insured and sole loss payee on behalf of the Lenders.
(h) Consent. Receipt by the Administrative Agent of evidence
that all governmental, shareholder and material third party consents
(including, without limitation, the termination or expiration of the
waiting period under the Hart-Scott-Rodino Antitrust Improvement Act)
and approvals necessary or desirable in connection with the Transaction
and the other transactions contemplated hereby shall have been
obtained, all such consents and approvals shall be in full force and
effect and all applicable waiting periods shall have expired without
any action being taken by any Governmental Authority that could
restrain, prevent or impose any material adverse conditions on the
Transaction or such other transactions contemplated hereby or that
could reasonably be likely to threaten any of the foregoing.
75
<PAGE> 82
(i) Material Adverse Effect. Since December 31, 1999, there
has been no development or event relating to or affecting a Credit
Party or any of its Subsidiaries that has had or could be reasonably
expected to have a Material Adverse Effect.
(j) Litigation. There shall not exist any (i) order, decree,
judgment, ruling or injunction which restrains the consummation of the
Transaction in the manner contemplated by the Merger Agreement or (ii)
pending or threatened action, suit, investigation or proceeding against
a Credit Party or any of its Subsidiaries that would have or could
reasonably be expected to have a Material Adverse Effect.
(k) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by the chief
financial officer of the Borrower on behalf of the Credit Parties as of
the Effective Date stating that (A) the Credit Parties and each of
their Subsidiaries are in compliance with all Material Contracts, (B)
all governmental, shareholder and third party consents and approvals,
if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (C) no action, suit,
investigation or proceeding is pending or threatened in any court or
before any arbitrator or Governmental Authority that purports to affect
a Credit Party, any of the Credit Parties' Subsidiaries or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding would have or could be reasonably expected
to have a Material Adverse Effect, (D) the Adjusted Pro Forma Financial
Statements were prepared in good faith and using reasonable assumptions
and (E) immediately after giving effect to this Credit Agreement, the
other Credit Documents and all the transactions contemplated therein to
occur on such date, (1) each Credit Party is Solvent, (2) no Default or
Event of Default exists, (3) all representations and warranties
contained herein and in the other Credit Documents are true and correct
in all material respects, and (4) the Credit Parties are in compliance
with each of the financial covenants set forth in Section 7.11.
(l) Consummation of Equity Financing, Subordinated Debt and
Refinancing. The Equity Financing, the Subordinated Debt and the
Refinancing shall have been consummated on terms satisfactory to the
Agents in all respects, and all conditions precedent to the
consummation of the Equity Financing and the Subordinated Debt shall
have been satisfied or, with the prior approval of the Agents, waived.
(m) Capitalization; Sources and Uses. The Agents and their
counsel shall be reasonably satisfied with (a) the capitalization,
structure and equity ownership of the Credit Parties and their
Subsidiaries, before and after giving effect to the Transaction and (b)
the sources and uses of funds relating to the Transaction. The
corporate, capital and ownership structure (including charter and
by-laws) and stockholders' agreements, management agreements, franchise
agreements, employment agreements, stock option and other employee
benefit plans and management of the Credit Parties and their
Subsidiaries (after giving effect to the Transaction) shall be
satisfactory to the Agents in all material respects.
76
<PAGE> 83
(n) Merger Agreement. The Borrower shall have delivered and
certified to the Administrative Agent a true, correct and complete copy
of the Merger Agreement. The Merger Agreement shall not have been
altered, amended or otherwise changed or supplemented in any material
respect or any material condition precedent therein waived, without the
prior written consent of the Agents. The Transaction shall have been
consummated in all material respects in accordance with the terms of
the Merger Agreement and in compliance with applicable laws and
regulatory approvals, and all conditions precedent to the obligations
of the Credit Parties and their Subsidiaries under the Merger Agreement
shall have been satisfied or, with the prior approval of the Agents,
waived.
(o) Ratio of Total Indebtedness to Adjusted Pro Forma
Consolidated EBITDA. The Agents shall have received evidence that the
ratio of (i) the total Indebtedness of the Credit Parties and their
Subsidiaries on a consolidated basis as of the end of the most recent
fiscal quarter for which unaudited financial statements have been
provided to the Agents, on a pro forma basis, after giving effect to
the Transactions, to (ii) EBITDA of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined pursuant to the
Adjusted Pro Forma Financial Statements (the "Adjusted Pro Forma
Consolidated EBITDA"), for the period of four fiscal quarters ending as
of the end of the most recent fiscal quarter for which unaudited
financial statements have been provided to the Agents, would not exceed
4.85 to 1.0.
(p) Solvency Opinion. Receipt by the Agents of an opinion from
an independent auditor or appraiser acceptable to the Agents as to the
solvency of the Credit Parties and their Subsidiaries on a consolidated
basis after giving effect to the Transaction.
(q) Availability. After giving effect to the Transaction and
all Extensions of Credit made on the Effective Date, the sum of the
aggregate amount of Revolving Loans outstanding plus the aggregate
amount of Swingline Loans outstanding plus the aggregate amount of
Foreign Currency Loans outstanding shall not exceed $30,000,000.
(r) Compliance with Financial Obligations. The Agents shall be
satisfied that no defaults exist and are continuing with respect to any
Indebtedness that will survive subsequent to the Closing Date, after
giving effect to the Transaction.
(s) Engagement Letter. An engagement letter with a financial
institution or financial institutions reasonably acceptable to the
Agents, BAS and SSB pursuant to which the Borrower shall have engaged
such financial institution(s) to act as underwriter, placement agent or
initial purchaser of any public or private offering of debt securities
by the Borrower, on terms and conditions reasonably acceptable to the
Agents, BAS and SSB, shall be in full force and effect.
(t) Outstanding Indebtedness. The Agents shall have received
satisfactory evidence that, after giving effect to the Transactions,
neither the Credit Parties nor their Subsidiaries shall have
outstanding any Indebtedness other than Indebtedness permitted pursuant
to Section 8.1. The terms and conditions of all Indebtedness of the
Credit
77
<PAGE> 84
Parties and their Subsidiaries that will remain outstanding after the
Closing Date (including but not limited to terms and conditions
relating to the interest rate, fees, amortization, maturity,
subordination, covenants, events of defaults and remedies) shall be
reasonably satisfactory in all respects to the Lenders.
(u) Taxes. The Agents shall be reasonably satisfied in all
respects (a) with the tax position and the contingent tax liabilities
of the Credit Parties and their Subsidiaries for prior operating
periods, and with the plans of the Credit Parties and their
Subsidiaries with respect thereto, and (b) with any tax sharing
agreements among the Credit Parties and their Subsidiaries after giving
effect to the Transactions.
(v) Contractual Restrictions. The Agents shall be satisfied
that, other than as set forth on Schedule 5.1(v), no Credit Party and
no Subsidiary of a Credit Party is subject to material contractual or
other restrictions that would be violated by the Transactions,
including the granting of guarantees and the payment of dividends by
Subsidiaries of a Credit Party.
(w) Absence of Defaults. There shall not exist or have
occurred any defaults, prepayment events or creation of Liens under
debt instruments or other agreements as a result of the Transactions or
otherwise.
(x) Fees and Expenses. (i) All fees and expenses due and
payable to the Agents, any Lender and/or their Affiliates hereunder or
pursuant to the Commitment Letter, the Fee Letter or otherwise shall
have been paid in full as contemplated herein and therein, and (ii)
each of the Sponsor and Pac Packaging shall have complied with all of
their respective obligations under the Commitment Letter and the Fee
Letter, and each such letter shall be in full force and effect.
(y) Existing Management. Management of the Credit Parties and
their Subsidiaries (after giving effect to the Transaction) shall be
satisfactory to the Agents in all respects. It is understood that
management of the Credit Parties and their Subsidiaries as of September
29, 2000 is satisfactory to the Agents.
(z) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely
requested by any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Credit Parties and their Subsidiaries.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
78
<PAGE> 85
(a) Notice. The Borrower shall have delivered (i) in the case
of any new Revolving Loan, to the Administrative Agent, an appropriate
Notice of Borrowing, duly executed and completed, by the time specified
in Section 2.1, (ii) in the case of any Letter of Credit, to the
Issuing Lender, an appropriate request for issuance of a Letter of
Credit in accordance with the provisions of Section 2.2, (iii) in the
case of any Swing Line Loan, to the Swing Line Lender, a Swing Line
Loan Request, duly executed and completed, by the time specified in
Section 2.5, and (iv) in the case of any new Foreign Currency Loan, to
the Administrative Agent, an appropriate Foreign Currency Notice of
Borrowing, duly executed and completed, by the time specified in
Section 2.6.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) No Material Adverse Effect. Since December 31, 1999, there
has been no development or event relating to or affecting a Credit
Party or any of its Subsidiaries that has had or could be reasonably
expected to have a Material Adverse Effect.
(e) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit, as the case may be, (i) the sum of
the Revolving Loans outstanding plus LOC Obligations outstanding plus
Swing Line Loans outstanding plus the U.S. Dollar Equivalent of Foreign
Currency Loans outstanding shall not exceed the Revolving Committed
Amount, (ii) the sum of LOC Obligations outstanding shall not exceed
the LOC Committed Amount, (iii) the sum of Swing Line Loans outstanding
shall not exceed the Swing Line Committed Amount, (iv) the sum of the
U.S. Dollar Equivalent of Foreign Currency Loans outstanding shall not
exceed the Foreign Currency Committed Amount and (v) with respect to
any Foreign Currency Loan, the U.S. Dollar Equivalent of the aggregate
amount of Foreign Currency Loans outstanding to the requesting Foreign
Subsidiary Borrower (or to the Borrower) shall not exceed the sublimits
set forth in Section 2.6(a).
The delivery of each Notice of Borrowing, Foreign Currency Notice of Borrowing,
Swing Line Loan Request and each request for a Letter of Credit shall constitute
a representation and warranty by the Credit Parties of the correctness of the
matters specified in subsections (b), (c), (d) and (e) above. This Section 5.2
shall not apply to continuations or conversions of Loans made pursuant to
Section 2.7.
79
<PAGE> 86
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agents and each Lender that:
6.1 FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(c) and Sections 7.1(a) and (b), (a) have been prepared in accordance with
GAAP and (b) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and consolidating (as applicable)
financial condition, results of operations and cash flows of the Credit Parties
and their Subsidiaries as of such date and for such periods. Since December 31,
1999, there has been no sale, transfer or other disposition by a Credit Party or
any of its Subsidiaries of any material part of the business or property of the
Credit Parties and their Subsidiaries, taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Credit Parties taken as a whole, which is not (A)
reflected in the most recent financial statements delivered to the Lenders
pursuant to Section 5.1(c), 7.1 or in the notes thereto or (B) otherwise
permitted by the terms of this Credit Agreement and communicated to the
Administrative Agent.
6.2 NO MATERIAL CHANGE.
Since December 31, 1999, there has been no development or event
relating to or affecting a Credit Party or any of its Subsidiaries that has had
or could be reasonably expected to have a Material Adverse Effect and (b) from
and after the Closing Date, except as otherwise permitted under this Credit
Agreement, including Section 8.7, no dividends or other distributions have been
declared, paid or made upon the Capital Stock or other equity interest in a
Credit Party or any of its Subsidiaries nor has any of the Capital Stock or
other equity interest in a Credit Party been redeemed, retired, purchased or
otherwise acquired for value.
6.3 ORGANIZATION AND GOOD STANDING.
Each Credit Party and each of its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the state (or other
jurisdiction) of its organization (or with respect to a Foreign Subsidiary, the
equivalent thereof), (b) is duly qualified and in good standing as a foreign
organization and authorized to do business in every jurisdiction (or with
respect to a Foreign Subsidiary, the equivalent thereof) unless the failure to
be so qualified, in good standing or authorized would not have or could not
reasonably be expected to have a Material Adverse Effect and (c) has the
requisite power and authority to own its properties and to carry on its business
as now conducted and as proposed to be conducted.
6.4 DUE AUTHORIZATION.
Each of the Credit Parties (a) has the requisite power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur
80
<PAGE> 87
the obligations herein and therein provided for and (b) is duly authorized to,
and has been authorized by all necessary action, to execute, deliver and perform
this Credit Agreement and the other Credit Documents to which it is a party.
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by any Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation, bylaws or other charter or organizational document, (b) violate,
contravene or materially conflict with any Requirement of Law or any other law,
regulation (including, without limitation, Regulation T, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable to
it, (c) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any Material Contract or any other indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which could
have or might be reasonably expected to have a Material Adverse Effect or (d)
result in or require the creation of any Lien (other than those contemplated in
or created in connection with the Credit Documents) upon or with respect to its
properties.
6.6 CONSENTS.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by such Credit Party.
6.7 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.8 NO DEFAULT.
No Credit Party, nor any of its Subsidiaries, is in default in any
respect under any Material Contract or any other contract, lease, loan
agreement, indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its properties is bound
which default would have or could be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Lenders.
81
<PAGE> 88
6.9 OWNERSHIP.
Each Credit Party and each of its Subsidiaries is the owner of, and has
good and marketable title to, all of its respective material assets. None of the
assets of the Credit Parties and their Subsidiaries is subject to any Lien other
than Permitted Liens.
6.10 INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
(a) as permitted by Section 8.1 or (b) that is being repaid on the Closing Date.
6.11 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of the Credit Parties,
threatened against a Credit Party or any of its Subsidiaries which would have or
could reasonably be expected to have a Material Adverse Effect.
6.12 TAXES.
Each of the Credit Parties and each of its Subsidiaries has filed, or
caused to be filed, all federal, state, foreign and material local (domestic and
foreign) tax returns required to be filed and paid (a) all amounts of taxes
shown thereon to be due (including interest and penalties) and (b) all other
taxes, fees, assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes) owing by it,
except for such taxes (i) which are not yet delinquent or (ii) that are being
contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP. No Credit Party is aware
as of the Closing Date of any proposed tax assessments against it or any of its
Subsidiaries, except as set forth on Schedule 6.12.
6.13 COMPLIANCE WITH LAW.
Each Credit Party and each of its Subsidiaries is in compliance with
all Requirements of Law and all other laws, rules, regulations, orders and
decrees (including without limitation Environmental Laws) applicable to it, or
to its properties, unless such failure to comply could not have or could not be
reasonably expected to have a Material Adverse Effect. No Requirement of Law
could be reasonably expected to cause a Material Adverse Effect.
6.14 ERISA.
Except as would not have or could not reasonably be expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred, and, to the best knowledge of the Credit Parties, no
event or condition has occurred or exists as a result of
82
<PAGE> 89
which any Termination Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as such
term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii)
each Plan has been maintained, operated, and funded in compliance with
its own terms and in material compliance with the provisions of ERISA,
the Code, and any other applicable federal or state laws; and (iv) no
Lien in favor or the PBGC or a Plan has arisen or is reasonably likely
to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(within the meaning of Section 4001 of ERISA) under each Single
Employer Plan (determined utilizing the actuarial assumptions used to
fund such Plans), whether or not vested, did not, as of the last annual
valuation date prior to the date on which this representation is made
or deemed made, exceed the fair market current value as of such date of
the assets of such Plan allocable to such accrued liabilities.
(c) Neither a Credit Party, nor any of its Subsidiaries, nor
any ERISA Affiliate has incurred, or, to the best knowledge of the
Credit Parties, are reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither a Credit Party, nor any of its Subsidiaries, nor any
ERISA Affiliate has received any notification that any Multiemployer
Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or is reasonably likely to subject a Credit Party or any of its
Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which a Credit
Party or any of its Subsidiaries or any ERISA Affiliate has agreed or
is required to indemnify any Person against any such liability.
(e) The present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided
and the employees participating) of the liability of the Credit Parties
and their Subsidiaries and each ERISA Affiliate for post-retirement
welfare benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as defined in Section 3(1)
of ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the financial statements of the Credit
Parties and their Subsidiaries in accordance with FASB 106.
(f) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in compliance in all material
respects with such sections.
83
<PAGE> 90
(g) Each Foreign Employee Benefit Plan and each Foreign
Pension Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective
requirements of the governing documents for such Foreign Employee
Benefit Plan. The aggregate of the liabilities to provide all of the
accrued benefits under any Foreign Pension Plan does not exceed the
current fair market value of the assets held in the trust or other
funding vehicle for such Plan. With respect to such liabilities
relating to each such Foreign Employee Benefit Plan (other than a
Foreign Pension Plan) maintained by a Credit Party, any of its
Subsidiaries or any of its ERISA Affiliates, reasonable reserves have
been established in accordance with prudent business practices or,
where required, by ordinary accounting practices in the jurisdiction in
which such Plan is maintained. The aggregate unfunded liabilities,
after giving effect to any reserves for such liabilities, with respect
to such Foreign Employee Benefit Plans will not result in a material
liability of a Credit Party and its Subsidiaries. There are no actions,
suits or claims (other than routine claims for benefits) pending or
threatened against a Credit Party, any of its Subsidiaries or any of
its ERISA Affiliates with respect to any Foreign Employee Benefit Plan.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is (a) a complete and accurate list of all
Subsidiaries of each Credit Party and (b) a complete and accurate list of all
Foreign Subsidiary Borrowers. Information on Schedule 6.15 includes jurisdiction
of organization, the number of shares of each class of Capital Stock
outstanding, the number and percentage of outstanding shares of each class of
Capital Stock owned (directly or indirectly) by such Credit Party and the number
and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto. The
outstanding Capital Stock of all such Subsidiaries is validly issued, fully paid
and non-assessable and is owned by each such Credit Party, directly or
indirectly, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in Schedule 6.15, neither any Credit Party nor any Subsidiary thereof has
outstanding any securities convertible into or exchangeable for its Capital
Stock nor does any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to its Capital Stock. Schedule 6.15 may be updated
from time to time by the Borrower by giving written notice thereof to the
Administrative Agent.
6.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.9.
6.17 GOVERNMENT REGULATION.
(a) No part of the Letters of Credit or proceeds of the Loans
will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U, or for
the purpose of purchasing or carrying or trading in
84
<PAGE> 91
any securities. No Indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Credit Parties and their Subsidiaries. None of the transactions
contemplated by the Credit Documents (including, without limitation,
the direct or indirect use of the proceeds of the Loans) will violate
or result in a violation of (i) the Securities Act, (ii) the Exchange
Act or (iii) Regulations T, U or X.
(b) No Credit Party, nor any of its Subsidiaries, is subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, no Credit Party, nor any of its Subsidiaries, is
(i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not
controlled by an "investment company", or (ii) a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
6.18 ENVIRONMENTAL MATTERS.
(a) Except as would not have or could not reasonably be
expected to have a Material Adverse Effect:
(i) Each of the real property assets owned,
leased or operated by a Credit Party or any of its
Subsidiaries (the "Real Properties") and all operations at the
Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any
Environmental Law with respect to the Real Properties or the
businesses operated by the Credit Parties or any of their
Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Real Properties that could be
reasonably expected to give rise to liability under any
applicable Environmental Laws.
(ii) Neither a Credit Party nor any of its
Subsidiaries has received any written or oral notice of, or
inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or
potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the
Real Properties or the Businesses, nor does a Credit Party or
any of its Subsidiaries have knowledge or reason to believe
that any such notice is being threatened.
(iii) Hazardous Materials have not been
transported or disposed of from the Real Properties, or
generated, treated, stored or disposed of at, on or under any
of the Real Properties or any other location, in each case by,
or on behalf or with the permission of a Credit Party or any
of its Subsidiaries in a
85
<PAGE> 92
manner that could reasonably be expected to give rise to
liability under any applicable Environmental Law.
(iv) No judicial proceeding or governmental
or administrative action is pending or, to the knowledge of a
Credit Party or any of its Subsidiaries, threatened, under any
Environmental Law to which a Credit Party or any of its
Subsidiaries is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental
Law with respect to a Credit Party or any of its Subsidiaries,
the Real Properties or the Businesses, in any amount
reportable under the federal Comprehensive Environmental
Response, Compensation and Liability Act or any analogous
state law, except releases in compliance with any
Environmental Laws.
(v) There has been no release or threat of
release of Hazardous Materials at or from the Real Properties,
or arising from or related to the operations (including,
without limitation, disposal) of a Credit Party or any of its
Subsidiaries in connection with the Real Properties or
otherwise in connection with the Businesses.
(b) The Credit Parties and their Subsidiaries have adopted
procedures that are designed to (i) ensure that each Credit Party and
its Subsidiaries, any of their operations and each of the properties
owned or leased by each Credit Party and/or its Subsidiaries remains in
compliance with applicable Environmental Laws and (ii) minimize any
liabilities or potential liabilities that each Credit Party and its
Subsidiaries, any of their operations and each of the properties owned
or leased by each Credit Party and/or its Subsidiaries may have under
applicable Environmental Laws.
6.19 INTELLECTUAL PROPERTY.
Each Credit Party and each of its Subsidiaries owns, or has the legal
right to use, all Intellectual Property necessary for each of them to conduct
its business as currently conducted. Except as set forth on Schedule 6.19, (a)
no holding, decision or judgment has been rendered by any Governmental Authority
which would limit, cancel or question the validity of any material Intellectual
Property and (b) no action or proceeding is pending seeking to limit, cancel or
question the validity of any material Intellectual Property. Set forth on
Schedule 6.19 is a list of all registered Intellectual Property and all other
material Intellectual Property, in each case owned by each Credit Party or that
any Credit Party has the right to use. Except as provided on Schedule 6.19, no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does any Credit Party know of any such
claim, and to the Credit Parties' knowledge the use of such Intellectual
Property by a Credit Party or any of their Subsidiaries does not infringe on the
rights of any Person. Schedule 6.19 may be updated from time to time by the
Borrower by giving written notice thereof to the Administrative Agent.
86
<PAGE> 93
6.20 SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.21 INVESTMENTS.
All Investments of the Credit Parties and their Subsidiaries are
Permitted Investments.
6.22 DISCLOSURE; PROJECTIONS.
Neither this Credit Agreement nor any financial statements delivered to
an Agent or the Lenders nor any other document, certificate or statement
furnished to an Agent or the Lenders by or on behalf of a Credit Party or any of
its Subsidiaries in connection with the transactions contemplated hereby,
including, without limitation, the offering memorandums prepared in connection
with the closing of this Credit Agreement (as supplemented by the disclosure on
Schedule 6.22), contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein in the light of the circumstances under which they were made
not misleading as of the date such financial statement, document, certificate or
other statement was made or delivered. All financial projections concerning the
Credit Parties and their Subsidiaries made available to the Agents and the
Lenders, whether prior to or after the Closing Date, including, without
limitation, projections in the budgets prepared pursuant to Section 7.1(e), have
been prepared in good faith based upon reasonable assumptions.
6.23 LICENSES, ETC.
Each Credit Party has obtained and holds in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of its business as presently
conducted except where the failure to do so could not have or could not be
reasonably expected to have a Material Adverse Effect.
6.24 NO BURDENSOME RESTRICTIONS.
No Credit Party, nor any of its Subsidiaries, is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which individually or in the aggregate, could have or be reasonably expected to
have a Material Adverse Effect.
6.25 BROKER'S FEES.
Except as set forth in the Fee Letter, the Bridge Fee Letter, the M&A
Engagement Letter, or the Management Agreement, dated as of the Closing Date,
between Berkshire Partners LLC and the Borrower, no Credit Party, nor any of its
Subsidiaries, has any obligation to any Person
87
<PAGE> 94
in respect of any finder's, broker's, investment banking or other similar fee in
connection with any of the transactions contemplated under the Credit Documents.
6.26 LABOR MATTERS.
Except as disclosed on Schedule 6.26, (a) there are no collective
bargaining agreements, labor contracts or Multiemployer Plans covering the
employees of a Credit Party, (b) no union or other labor organization is seeking
to organize, or be recognized as, a collective bargaining unit of employees of
any Credit Party or any of their Subsidiaries and (c) there is no pending or
threatened strike, walkout, work stoppage, material unfair labor claim or
material labor dispute against or affecting any Credit Party or any of their
Subsidiaries or their employees.
6.27 LOCATION OF COLLATERAL.
Set forth on Schedule 6.27(a) is a list of all Real Properties of a
Credit Party with street address, county and state or country where located. Set
forth on Schedule 6.27(b) is a list of all locations where any personal property
of a Credit Party is located, including county and state or country where
located. Set forth on Schedule 6.27(c) is the chief executive office and
principal place of business of each Credit Party. Schedule 6.27(a), Schedule
6.27(b) and Schedule 6.27(c) may be updated from time to time by the Borrower by
giving written notice thereof to the Administrative Agent.
6.28 COLLATERAL DOCUMENTS.
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
6.29 INSURANCE.
Set forth on Schedule 6.29 is the present insurance coverage of the
Credit Parties and their Subsidiaries (outlined as to carrier, policy number,
expiration date, type and amount). Schedule 6.29 may be updated from time to
time by the Borrower by giving written notice thereof to the Administrative
Agent.
6.30 REPRESENTATIONS AND WARRANTIES FROM MERGER AGREEMENT.
Each of the representations and warranties made in the Merger Agreement
by each of the parties thereto is true and correct in all material respects on
and as of the Closing Date except to the extent they relate to an earlier date.
6.31 IMMUNITY.
None of the Credit Parties nor any of their respective properties has
any immunity from jurisdiction of any court or from set-off or any legal process
(whether through service or notice,
88
<PAGE> 95
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) under the laws of the jurisdiction of its organization, formation or
incorporation.
6.32 PROPER LEGAL FORM.
Each Credit Document to which a Foreign Credit Party is a party is in
proper legal form under the law of the jurisdiction in which such Foreign Credit
Party is organized, formed or incorporated for the enforcement thereof against
such Credit Party under the law of such jurisdiction. To ensure the legality,
validity, enforceability or admissibility in evidence of each such Credit
Document in such jurisdiction, it is not necessary that any such Credit Document
or any other document be filed or recorded with any court or other authority of
such jurisdiction or that any stamp or similar tax be paid on or in respect of
any such Credit Document.
6.33 MATERIAL CONTRACTS.
Set forth on Schedule 6.33 is a list of all Material Contracts.
Schedule 6.33 may be updated from time to time by the Borrower giving written
notice thereof to the Administrative Agent.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Borrower will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements.
(i) As soon as available, and in any event within 90
days after the close of each fiscal year of the Borrower, (A)
a consolidated balance sheet and income statement of the
Credit Parties and their Subsidiaries, as of the end of such
fiscal year, together with related consolidated statements of
operations and retained earnings and of cash flows for such
fiscal year, setting forth in comparative form consolidated
figures for the preceding fiscal year, all such financial
information described above to be in form and detail
reasonably acceptable to the Administrative Agent and the
Required Lenders and audited (with respect to consolidated
financial statements only) by Arthur Andersen LLP or such
other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative
Agent and the Required Lenders and whose opinion shall be to
the effect that such financial statements
89
<PAGE> 96
have been prepared in accordance with GAAP (except for changes
with which such accountants concur) and shall not be limited
as to the scope of the audit or qualified in any manner and
(B) additional financial statements regarding the U.S.
operations, the European operations and the German operations
of the Credit Parties and their Subsidiaries, in form and
substance reasonably acceptable to the Lenders.
(ii) As soon as available, but in any event no later
than 30 days after the Closing Date, a consolidated balance
sheet and income statement of May Verpackungen and its
Subsidiaries, as of the end of the fiscal years ended March
31, 1998 and 1999 and the nine months ended December 31, 1999,
together with related consolidated statements of operations
and retained earnings and of cash flows for such fiscal years,
setting forth in comparative form consolidated figures for the
fiscal year preceding each such fiscal year, all such
financial information described above to be in form and detail
reasonably acceptable to the Administrative Agent and the
Required Lenders and (A) with respect to the nine month period
ended December 31, 1999, audited (with respect to consolidated
financial statements only) by independent certified public
accountants of recognized national standing reasonably
acceptable to the Administrative Agent and the Required
Lenders and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with
generally accepted accounting principles in effect in Germany
(except for changes with which such accountants concur) and
shall not be limited as to the scope of the audit or qualified
in any manner and (B) with respect to fiscal years 1998 and
1999, prepared by (but not audited by) the German independent
auditors who prepared such statements.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of the first three fiscal
quarters of each fiscal year of the Borrower, a consolidated balance
sheet and income statement of the Credit Parties and their
Subsidiaries, as of the end of such fiscal quarter, together with
related consolidated statements of operations and retained earnings and
of cash flows for such fiscal quarter in each case setting forth in
comparative form consolidated and consolidating figures for (i) the
corresponding period of the preceding fiscal year and (ii) the most
recent budget delivered pursuant to Section 7.1(e), all such financial
information described above to be in form and detail reasonably
acceptable to the Administrative Agent and the Required Lenders, and
accompanied by a certificate of the chief financial officer of the
Borrower to the effect that such quarterly financial statements fairly
present in all material respects the financial condition of the Credit
Parties and their Subsidiaries and have been prepared in accordance
with GAAP, subject to changes resulting from audit and normal year-end
audit adjustments.
(c) Monthly Financial Statements. As soon as available, and in
any event within 30 days after the end of each month (except for the
month of December for which monthly statements shall be delivered no
later than 45 days after the end of such month), (i) internal
consolidated financial statements of the Credit Parties and their
Subsidiaries,
90
<PAGE> 97
as of the end of such month, all such financial information to be in
form and detail reasonably acceptable to the Administrative Agent and
the Required Lenders, together with related financial statements
setting forth in comparative form figures for (A) the corresponding
month of the preceding year and (B) the most recent budget delivered
pursuant to Section 7.1(e), (ii) additional financial statements
regarding the U.S. operations, the European operations and the German
operations of the Credit Parties and their Subsidiaries in form and
substance acceptable to the Lenders and (iii) summary financial
information as to Foreign Subsidiary Borrowers and their Subsidiaries
(and direct and indirect foreign parents) as may be reasonably
requested by the Administrative Agent.
(d) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of the chief financial officer of the Borrower
substantially in the form of Exhibit 7.1(d) (each an "Officer's
Compliance Certificate"), (i) demonstrating compliance with the
financial covenants contained in Section 7.11 by calculation thereof as
of the end of each such fiscal period, (ii) calculating the Leverage
Ratio as of the end of such fiscal period and the Pricing Level for
purposes of the definition of Applicable Percentage, (iii) setting
forth the Debt Rating of the Borrower by S&P and Moody's, (iv)
demonstrating compliance with any other terms of this Credit Agreement
as reasonably requested by the Administrative Agent and (v) stating
that no Default or Event of Default exists, or if any Default or Event
of Default does exist, specifying the nature and extent thereof and
what action the Borrower proposes to take with respect thereto.
(e) Annual Business Plan and Budgets. As soon as available,
and in any event within 30 days after the beginning of each fiscal year
of the Borrower, beginning with the fiscal year starting January 1,
2001, an annual business plan and budget of the Credit Parties and
their Subsidiaries on a consolidated basis containing, among other
things, pro forma financial statements for such fiscal year, setting
forth such projections on a monthly basis. The Borrower shall promptly
deliver to the Administrative Agent any material changes made to the
projections set forth in any such budget.
(f) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a)(i), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement and stating further whether,
in the course of their audit, they have become aware of any Default or
Event of Default and, if any such Default or Event of Default exists,
specifying the nature and extent thereof.
(g) Compliance With Certain Provisions of the Credit
Agreement. Within 90 days after the end of each fiscal year of the
Credit Parties, a certificate containing information regarding (i) the
calculation of Excess Cash Flow and (ii) the Net Cash Proceeds received
from all Asset Dispositions, Debt Issuances and Equity Issuances that
were made during the prior fiscal year.
91
<PAGE> 98
(h) Auditor's Reports. Promptly upon receipt thereof, a copy
of any "management letter" or similar report or communication by the
auditors to the board of directors of a Credit Party or a committee
thereof submitted or presented by independent accountants to a Credit
Party or any of its Subsidiaries in connection with any annual, interim
or special audit of the books of a Credit Party or any of its
Subsidiaries.
(i) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as a Credit Party or any of its Subsidiaries shall send to its
shareholders generally or to a holder of the Subordinated Debt in its
capacity as a holder and (b) upon the written request of the
Administrative Agent, all reports and written information to and from
the United States Environmental Protection Agency, or any state or
local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(j) Notices. Upon a Credit Party obtaining knowledge thereof,
such Credit Party will give written notice to the Administrative Agent
immediately of (a) the occurrence of an event or condition consisting
of a Default or Event of Default, specifying the nature and existence
thereof and what action the Borrower proposes to take with respect
thereto, and (b) the occurrence of any of the following with respect to
a Credit Party or any of its Subsidiaries: (i) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against a Credit Party or any of its Subsidiaries which if adversely
determined would have or could be reasonably expected to have a
Material Adverse Effect, or (ii) the institution of any proceedings
against a Credit Party or any of its Subsidiaries with respect to, or
the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal,
state or local law, rule or regulation, including but not limited to,
Environmental Laws, the violation of which would have or could be
reasonably expected to have a Material Adverse Effect.
(k) ERISA. Upon a Credit Party or any ERISA Affiliate
obtaining knowledge thereof, the Borrower will give written notice to
the Administrative Agent and each of the Lenders promptly (and in any
event within five Business Days) of: (i) any event or condition,
including, but not limited to, any Reportable Event, that constitutes,
or might reasonably lead to, a Termination Event; (ii) with respect to
any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any material withdrawal liability assessed against a
Credit Party or any of its ERISA Affiliates, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA) where any material liability has been
imposed or could reasonably be expected to be imposed on a Credit Party
or any ERISA Affiliate; (iii) the failure to make full payment on or
before the due date (including extensions) thereof of all amounts which
the Credit Party or any of its Subsidiaries or ERISA Affiliates is
required to contribute to each Plan pursuant to its terms and as
required to meet the minimum
92
<PAGE> 99
funding standard set forth in ERISA and the Code with respect thereto
except such failure as would not or could not reasonably be expected to
have a Material Adverse Effect; (iv) any change in the funding status
of any Plan that could have a Material Adverse Effect; together with a
description of any such event or condition or a copy of any such notice
and a statement by the principal financial officer of the Credit Party
briefly setting forth the details regarding such event, condition or
notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto; or (v)
the failure to pay any required contributions or payments to a Foreign
Pension Plan or a Foreign Employee Benefit Plan on or before the due
date for such required installment or payment except such failure as
would not or could not reasonably be expected to have a Material
Adverse Effect. Promptly upon request, the Credit Parties shall furnish
the Administrative Agent and each of the Lenders with such additional
information concerning any Plan, any Foreign Employee Benefit Plan or
any Foreign Pension Plan as may be reasonably requested, including, but
not limited to, copies of each annual report/return (Form 5500 series),
as well as all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year"
(within the meaning of Section 3(39) of ERISA).
(l) Environmental.
(i) Subsequent to a notice from any Governmental
Authority where the subject matter of such notice would have
or could reasonably be expected to have a Material Adverse
Effect or during the existence of an Event of Default, and
upon the written request of the Administrative Agent, the
Credit Parties will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, a report
of an environmental assessment of reasonable scope, form and
depth, including, where appropriate, invasive soil or
groundwater sampling, by a consultant reasonably acceptable to
the Administrative Agent addressing the subject of such notice
or, if during the existence of an Event of Default, regarding
any release or threat of release of Hazardous Materials on any
Real Property and the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to deliver such
an environmental assessment within sixty (60) days after
receipt of such written request, then the Administrative Agent
may arrange for same, and the Credit Parties hereby grant to
the Administrative Agent and its representatives access to the
Real Properties and a license of a scope reasonably necessary
to undertake such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable cost of
any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Credit
Parties on demand and added to the obligations secured by the
Collateral Documents.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all
remedial, removal and other actions necessary to address all
Hazardous Materials on, from, or affecting any Real Property
of such Credit Party to the extent necessary to be in
compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules
and
93
<PAGE> 100
policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over such
Real Property.
(m) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Credit Parties and their Subsidiaries, or
information from officers of the Credit Parties and their Subsidiaries,
as the Administrative Agent or any Lender may reasonably request.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, do all things necessary to preserve and keep in full force and
effect its existence, rights, franchises and authority except as permitted by
Section 8.4.
7.3 BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate reserves) or, with
respect to Foreign Credit Parties and their Subsidiaries in such manner as is
reasonably acceptable to the Administrative Agent.
7.4 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, comply in all material respects with all material laws, rules,
regulations and orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its property (including, without
limitation, Environmental Laws).
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party or any of its Subsidiaries shall not be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) would have or could be
reasonably expected to have a Material Adverse Effect.
94
<PAGE> 101
7.6 INSURANCE/CONDEMNATION.
(a) Each of the Credit Parties will, and will cause each of
its Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with
normal industry practice. All liability policies shall name the
Administrative Agent, on behalf of the Lenders, as an additional
insured and all casualty policies shall name the Administrative Agent,
on behalf of the Lenders, as loss payee, for amounts in excess of
$1,000,000, and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will give
the Administrative Agent thirty (30) days prior written notice before
any such policy or policies shall be altered or canceled.
(b) In the event there occurs (i) any material loss, damage to
or destruction of any property of a Credit Party or any part thereof or
(ii) the taking of any property of a Credit Party as a result of
condemnation proceedings, such Credit Party shall promptly give written
notice thereof to the Administrative Agent generally describing the
nature and extent of such damage, destruction or condemnation
proceedings, as the case may be. Subsequent to (A) any loss, damage to
or destruction of any property of a Credit Party or any part thereof,
or (B) the taking of any property of a Credit Party by condemnation,
such Credit Party, whether or not the insurance or condemnation
proceeds, if any, received on account of such damage, destruction or
taking of property shall be sufficient for that purpose, at such Credit
Party's cost and expense, will, subject to clause (d) below, promptly
repair or replace the property of such Credit Party so lost, damaged,
destroyed or taken; provided, however, that such Credit Party need not
repair or replace the property of such Credit Party so lost, damaged,
destroyed or taken to the extent the failure to make such repair or
replacement (a) is desirable to the proper conduct of the business of
such Credit Party in the ordinary course and otherwise is in the best
interest of such Credit Party and (b) would not materially impair the
rights and benefits of the Administrative Agent or the Lenders under
this Credit Agreement or any other Credit Document.
(c) The Administrative Agent is authorized, but not obligated,
as the attorney-in-fact of each of the Credit Parties and for the
benefit of the Lenders, upon the occurrence and during the continuance
of an Event of Default, without the consent of the applicable Credit
Party, (i) to reasonably adjust and compromise proceeds payable under
such insurance policies or condemnation proceedings, (ii) to collect,
receive and give receipts for any insurance proceeds or condemnation
proceeds in the name of such Credit Party, the Administrative Agent and
the Lenders and (iii) to endorse such Credit Party's name upon any
instrument in payment thereof.
(d) In the event a Credit Party shall receive any insurance or
condemnation proceeds, as a result of any loss, damage, destruction or
taking of property, in a net amount in excess of $1,000,000, such
Credit Party will immediately pay over such proceeds to the Collateral
Agent as cash collateral for the Domestic Credit Party Obligations or
the Foreign
95
<PAGE> 102
Credit Party Obligations, as applicable. The Collateral Agent agrees to
release such insurance proceeds to such Credit Party for replacement or
restoration of the portion of the Collateral or property of such Credit
Party lost, damaged, destroyed or taken if (A) within 180 days from the
date the Collateral Agent receives such insurance or condemnation
proceeds, the Collateral Agent has received written application for
such release from such Credit Party together with evidence reasonably
satisfactory to it that the Collateral or property lost, damaged,
destroyed or taken has been or will be replaced or restored to its
condition (or by Collateral or property having a value at least equal
to the condition of the asset subject to the loss, damage, destruction
or taking) immediately prior to the loss, destruction or other event
giving rise to the payment of such insurance or condemnation proceeds
and (B) on the date of such release no Default or Event of Default
exists. If the conditions in the preceding sentence are not met, the
Collateral Agent shall, on the first Business Day subsequent to the
date 180 days after it received such insurance or condemnation
proceeds, apply such insurance or condemnation proceeds as a mandatory
prepayment of the Credit Party Obligations for application in
accordance with the terms of Section 3.3(b)(ii) and Section 3.3(c). All
insurance and condemnation proceeds shall be subject to the security
interest of the Lenders under the Collateral Documents.
7.7 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its properties and equipment in good repair, working order
and condition, normal wear and tear excepted, and will make, or cause to be
made, in such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses except for property disposed of in accordance with the terms
of this Agreement.
7.8 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all respects all of its obligations under the terms of all Material
Contracts and all other agreements, indentures, mortgages, security agreements,
leases or debt instruments to which it is a party or by which it is bound if the
failure to perform would have or could be reasonably expected to have a Material
Adverse Effect.
7.9 USE OF PROCEEDS.
The Borrower will use the proceeds of the Loans solely (a) to finance a
portion of the costs of the Transaction, including premiums, fees and expenses
incurred in connection therewith in an amount not to exceed $50,000,000 and (b)
to provide for working capital and general corporate purposes of the Borrower
and its Subsidiaries (including Permitted Acquisitions). The Borrower will use
the Letters of Credit solely for the purposes set forth in Section 2.2(a).
96
<PAGE> 103
7.10 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours the Credit
Parties will, and will cause their Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys and appraisers to visit and inspect
each Credit Party's (or its Subsidiary's) property, including its books and
records, its accounts receivable and inventory, its facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit the
Administrative Agent or its representatives to investigate and verify the
accuracy of information provided to the Lenders and to discuss all such matters
with the officers, employees and representatives of the Credit Parties and their
Subsidiaries. The Credit Parties agree that the Administrative Agent or the
Collateral Agent may conduct such audits and collateral reviews, at the Credit
Parties' expense, as it deems appropriate; provided that absent an Event of
Default such audits and collateral reviews may not be conducted more than twice
a year.
7.11 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Leverage Ratio, as of the end of each
fiscal quarter of the Borrower during the periods set forth below,
shall be less than or equal to:
<TABLE>
<CAPTION>
PERIOD RATIO
<S> <C>
From the Effective Date to July 1, 2001 4.95 to 1.0
From July 2, 2001 to December 31, 2001 4.75 to 1.0
From January 1, 2002 to June 30, 2002 4.50 to 1.0
From July 1, 2002 to December 31, 2002 4.25 to 1.0
From January 1, 2003 to June 29, 2003 4.00 to 1.0
From June 30, 2003 to December 31, 2003 3.75 to 1.0
From January 1, 2004 and thereafter 3.50 to 1.0
</TABLE>
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the end of each fiscal quarter of the Borrower during the periods
set forth below, shall be greater than or equal to:
<TABLE>
<CAPTION>
PERIOD RATIO
<S> <C>
From the Effective Date to July 1, 2001 1.80 to 1.0
From July 2, 2001 to December 31, 2001 1.85 to 1.0
From January 1, 2002 to June 30, 2002 1.90 to 1.0
From July 1, 2002 to September 29, 2002 2.00 to 1.0
From September 30, 2002 to June 29, 2003 2.10 to 1.0
From June 30, 2003 to April 3, 2004 2.25 to 1.0
From April 4, 2004 to December 31, 2004 2.40 to 1.0
From January 1, 2005 to October 2, 2005 2.50 to 1.0
From October 3, 2005 and thereafter 2.75 to 1.0
</TABLE>
97
<PAGE> 104
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the end of each fiscal quarter of the Borrower during the
periods set forth below, shall be greater than or equal to:
<TABLE>
<CAPTION>
PERIOD RATIO
<S> <C>
From the Effective Date to December 31, 2001 1.0 to 1.0
From January 1, 2002 to December 31, 2002 1.05 to 1.0
From January 1, 2003 to December 31, 2003 1.10 to 1.0
From January 1, 2004 to December 31, 2004 1.05 to 1.0
From January 1, 2005 and thereafter 1.10 to 1.0
</TABLE>
(d) Minimum EBITDA. EBITDA, as of the end of each fiscal
quarter of the Borrower, for the twelve month period ending on such
date, during the periods set forth below, shall be greater than or
equal to:
<TABLE>
<CAPTION>
PERIOD MINIMUM EBITDA
<S> <C>
From the Effective Date to December 31, 2001 $100,000,000
From January 1, 2002 to September 29, 2002 $105,000,000
From September 30, 2002 to July 4, 2004 $110,000,000
From July 5, 2004 and thereafter $115,000,000
</TABLE>
7.12 COLLATERAL.
If, subsequent to the Closing Date, a Credit Party shall (a) acquire or
lease any real property or (b) acquire any intellectual property, securities,
instruments or other personal property required to be delivered to the
Collateral Agent as Collateral hereunder or under any of the Collateral
Documents, the Borrower shall notify the Collateral Agent of same when it
delivers its next Officer's Compliance Certificate. Each Credit Party shall take
such action, as reasonably requested by the Collateral Agent and at its own
expense, to ensure that the Collateral Agent has a first priority perfected Lien
in all owned real property and all personal property of the Credit Parties
(whether now owned or hereafter acquired), subject only to Permitted Liens. Such
actions to be required by the Collateral Agent may include, but are not limited
to, delivery of mortgages, real estate title insurance policies, surveys, flood
certificates, zoning certificates (to the extent there is no zoning endorsement
provided by a title policy), environmental reports, valuations, UCC financing
statements, patent, trademark or copyright filings and legal opinions with
respect thereto. Upon the request of the Collateral Agent, the Borrower shall
provide such information as to the location of the personal property of the
Credit Parties as reasonably requested by the Collateral Agent. Each Credit
Party shall adhere to the covenants regarding the location of personal property
as set forth in the Collateral Documents.
7.13 ADDITIONAL CREDIT PARTIES.
(a) At the time any Person becomes a direct Subsidiary of a
Domestic Credit Party, the Borrower shall so notify the Administrative
Agent and promptly thereafter (but in any event within 30 days after
the date thereof) shall (i) cause such Person (if it is a Domestic
Subsidiary) to execute a Joinder Agreement in substantially the same
form as
98
<PAGE> 105
Exhibit 7.13(a), (ii) (A) cause all of the Capital Stock of such Person
(if such Person is a Domestic Subsidiary) or 65% of the Capital Stock
of such Person (if such Person is a direct Foreign Subsidiary owned by
a Domestic Credit Party) to be delivered to the Collateral Agent
(together with undated stock powers signed in blank) and pledged to the
Collateral Agent pursuant to an appropriate pledge agreement in
substantially the form of the Pledge Agreement and otherwise in a form
acceptable to the Collateral Agent, (B) if such Person is a Domestic
Subsidiary, pledge all of its assets to the Lenders pursuant to a
security agreement in substantially the form of the Security Agreement
and otherwise in a form acceptable to the Collateral Agent, (C) if such
Person is a Domestic Subsidiary and has any Subsidiaries, (1) deliver
all of the Capital Stock of such Person's Domestic Subsidiaries and 65%
of the Capital Stock of such Person's direct Foreign Subsidiaries
(together with undated stock powers signed in blank) to the Collateral
Agent and (2) execute a pledge agreement in substantially the form of
the Pledge Agreement and otherwise in a form acceptable to the
Collateral Agent, (D) if such Person is a Domestic Subsidiary and owns
in fee any real property in the United States of America, execute any
and all necessary mortgages, deeds of trust, deeds to secure debt or
other appropriate real estate collateral documentation in a form
substantially similar to the Mortgages, as the case may be, with
appropriate covenants as necessary and (E) deliver such other
documentation as the Collateral Agent may reasonably request in
connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, real estate title insurance
policies, environmental reports and landlord waivers, and (iii) cause
such Person to deliver certified resolutions and other organizational
and authorizing documents of such Person and opinions of counsel to
such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation
referred to above); it being understood that all of the documentation,
agreements, instruments, certificates and opinions to be delivered
pursuant to (i), (ii) and (iii) above shall be in form, content and
scope reasonably satisfactory to the Collateral Agent.
(b) At the time any Person becomes a Subsidiary of a Foreign
Subsidiary Borrower (or a foreign parent, direct or indirect, of a
Foreign Subsidiary Borrower) the Borrower shall so notify the
Administrative Agent and promptly thereafter (but in any event within
45 days after the date thereof) shall (i) cause such Person to execute
a Foreign Guaranty Agreement with respect to the Foreign Currency Loans
of the Foreign Subsidiary Borrower in question (ii) cause all of the
Capital Stock of such Person to be delivered (if certificated) to the
Collateral Agent (together with undated stock powers signed in blank)
and pledged to the Collateral Agent pursuant to an appropriate pledge
agreement in a form acceptable to the Collateral Agent, (iii) pledge
all of its assets to the Lenders pursuant to a security agreement in a
form acceptable to the Collateral Agent, (iv) if such Person has any
Subsidiaries, (A) deliver all of the Capital Stock (if certificated) of
such Subsidiaries (together with undated stock powers signed in blank)
to the Collateral Agent and (B) execute a pledge agreement in a form
acceptable to the Collateral Agent, (v) if such Person owns any real
property, execute any and all necessary mortgage instruments or other
appropriate real estate collateral documentation, with appropriate
covenants as necessary, (vi) deliver such other documentation as the
Collateral Agent may reasonably request in connection with the
foregoing, and (vii) cause such Person to deliver certified resolutions
and other organizational and authorizing documents of such Person and
favorable opinions
99
<PAGE> 106
of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the
documentation referred to above); it being understood that all of the
documentation, agreements, instruments, certificates and opinions to be
delivered shall be in form, content and scope reasonably satisfactory
to the Collateral Agent and that all collateral documentation delivered
pursuant to this subsection (b) shall be delivered to secure only the
Foreign Currency Loans of the Foreign Subsidiary Borrower in question.
7.14 THIRD PARTY CONSENTS.
With respect to any property leased after the Closing Date or with
respect to any new locations after the Closing Date where a Credit Party may
store any single asset with a fair market value in excess of $100,000 or a group
of assets with a fair market value in excess of $500,000, upon the request of
the Collateral Agent, the Credit Parties will promptly (but in any event within
30 days of such request) use all reasonable efforts to provide the Collateral
Agent with such estoppel letters, consents and waivers from (a) landlords of
real property leased to a Credit Party, (b) warehousemen and (c) bailees as may
be reasonably requested by the Administrative Agent, which estoppel letters,
consents and waivers shall be in form and substance reasonably satisfactory to
the Collateral Agent.
7.15 INTEREST RATE PROTECTION AGREEMENTS.
The Borrower shall, within 60 days subsequent to the Closing Date,
enter into and maintain interest rate protection agreements, in form and
substance acceptable to the Agents, for a period expiring no earlier than 3
years from the date such interest rate protection agreements are purchased, and
in a notional amount of not less than $125,000,000.
7.16 POST-CLOSING DELIVERIES.
(a) On or before October 31, 2000 (or such later date as
approved by the Collateral Agent), the Collateral Agent shall have
received (i) maps or plats of an as-built survey of the sites of the
Mortgaged Properties certified to the Collateral Agent and the Title
Insurance Company in a manner reasonably satisfactory to them, dated a
date satisfactory to the Collateral Agent and the Title Insurance
Company by an independent professional licensed land surveyor
reasonably satisfactory to the Collateral Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based
shall be sufficient to delete any standard printed survey exception
contained in the applicable title policy and be made in accordance with
the Minimum Standard Detail Requirements for Land Title Surveys jointly
established and adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and, without
limiting the generality of the foregoing, there shall be surveyed and
shown on such maps, plats or surveys the following: (A) the locations
on such sites of all the buildings, structures and other improvements
and the established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites; (D) all
roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site,
100
<PAGE> 107
whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining
property by the building structures and improvements on the sites; and
(F) if the site is described as being on a filed map, a legend relating
the survey to said map; and (ii) an endorsement to the Mortgage
Policies, acceptable to the Collateral Agent, reflecting the receipt of
the surveys described in clause (i) above.
(b) On or before October 31, 2000 (or such later date as
approved by the Collateral Agent), the Collateral Agent shall have
received satisfactory evidence that each of the Mortgaged Properties,
and the uses of the Mortgaged Properties, are in compliance in all
material respects with all applicable laws, regulations and ordinances
including, without limitation, health and environmental protection
laws, erosion control ordinances, storm drainage control laws, doing
business and/or licensing laws, zoning laws (the evidence submitted as
to zoning should include the zoning designation made for each of the
Mortgaged Properties, the permitted uses of each such Mortgaged
Property under such zoning designation and zoning requirements as to
parking, lot size, ingress, egress and building setbacks) and laws
regarding access and facilities for disabled persons including, but not
limited to, the federal Architectural Barriers Act, the Fair Housing
Amendments Act of 1988, the Rehabilitation Act of 1973 and the
Americans with Disabilities Act of 1990.
(c) The Borrower shall, within 180 days subsequent to the
Closing Date, deliver to the Collateral Agent a fully executed and
notarized Mortgage and the other documentation referenced in Section
5.1(f) and this Section 7.16 with respect to the property located at
901 Ostend Street, Baltimore, Maryland, unless such property has been
sold prior to such date.
(d) Within 45 days subsequent to the Closing Date, each loan
or advance of funds from a Domestic Credit Party to a Foreign
Subsidiary or a foreign Affiliate outstanding as of the Closing Date
shall be evidenced by a promissory note duly executed by such Foreign
Subsidiary or foreign Affiliate and payable to the order of such
Domestic Credit Party, and such Domestic Credit Party shall deliver
such promissory note to the Collateral Agent, together with such
endorsements as requested by the Collateral Agent.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest and fees hereunder, have been paid in full and the Commitments and
Letters of Credit hereunder shall have terminated:
101
<PAGE> 108
8.1 INDEBTEDNESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness existing as of the Closing Date and set forth
on Schedule 8.1 (and renewals, refinancings, replacements or extensions
thereof on terms and conditions when taken as a whole are no more
restrictive to such Credit Party and its Subsidiaries and are not less
favorable to the Lenders than such existing Indebtedness and in a
principal amount not in excess of that outstanding as of the date of
such renewal, refinancing, replacement or extension);
(c) Indebtedness in respect of current accounts payable,
accrued expenses and deferred income taxes incurred in the ordinary
course of business including, to the extent not current, accounts
payable, accrued expenses and deferred income taxes that are subject to
bona fide dispute;
(d) Indebtedness owing from (i) a Domestic Credit Party to
another Domestic Credit Party, (ii) a Foreign Credit Party to another
Foreign Credit Party, (iii) a Foreign Subsidiary (that is not a Foreign
Credit Party) to another Foreign Subsidiary (that is not a Foreign
Credit Party), (iv) from a Foreign Subsidiary that is not a Foreign
Credit Party to a Foreign Credit Party in an amount not to exceed, in
the aggregate at any one time, $10,000,000, and (v) a Foreign
Subsidiary to a Domestic Credit Party if it constitutes a Permitted
Investment;
(e) purchase money Indebtedness (including Capital Leases and
Synthetic Leases) incurred by the Borrower or any of its Subsidiaries
to finance the purchase of fixed assets within 90 days of the purchase
of such fixed assets; provided that (i) the total of all such
Indebtedness for all such Persons taken together shall not exceed (A)
an aggregate principal amount of $20,000,000 at any one time
outstanding and (B) when added together with the Indebtedness permitted
by Sections 8.1(i) and 8.1(m), $40,000,000 in the aggregate, at any one
time outstanding; (ii) such Indebtedness when incurred shall not exceed
the purchase price of the asset(s) financed (including transaction and
installation costs relating to the purchase); and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such
refinancing;
(f) obligations under Hedging Agreements entered into in order
to manage existing or anticipated interest rate or exchange rate risks
and not for speculative purposes;
(g) Indebtedness arising from judgments that do not cause an
Event of Default;
102
<PAGE> 109
(h) the Subordinated Debt (and renewals, refinancings,
replacements or extensions thereof on terms and conditions that, when
taken as a whole, are no more restrictive to such Credit Party and its
Subsidiaries and are not less favorable to the Lenders than such
existing Indebtedness and in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing, replacement or
extension);
(i) Indebtedness assumed in connection with a Permitted
Acquisition; provided that (i) such Indebtedness was not incurred in
anticipation thereof and (ii) such Indebtedness, in the aggregate, does
not exceed (A) $25,000,000 at any one time outstanding and (B) when
added together with the Indebtedness permitted by Sections 8.1(e) and
8.1(m), $40,000,000, in the aggregate, at any one time outstanding;
(j) Indebtedness arising from agreements of the Borrower or a
Subsidiary providing for indemnification, adjustment of purchase price,
or other similar obligations (exclusive of any Guaranty Obligation of
Indebtedness of the purchaser in such transaction), in each case,
incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary of the Borrower; provided the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by the Borrower and its
Subsidiaries in connection with such disposition;
(k) obligations in respect of performance and surety bonds and
completion guarantees provided in the ordinary course of business;
(l) Indebtedness of Foreign Subsidiaries (not incurred under
this Agreement) in an amount not to exceed (i) $30,000,000 and (ii)
when added together with Foreign Currency Loans shall not exceed, in
the aggregate, $75,000,000 at any one time;
(m) Indebtedness owing to an officer or employee of a Credit
Party (or the heirs of such Persons) whose employment has terminated or
who has died or retired or become disabled in connection with the
repurchase or redemption of shares, or options to purchase shares, of
such Credit Party; provided that (i) such Indebtedness must be fully
subordinated to the Credit Party Obligations on terms acceptable to the
Administrative Agent and (ii) no payments may be made to a holder of
such Indebtedness unless permitted by Section 8.7(b)(ii); and
(n) other unsecured Indebtedness not to exceed (i) $15,000,000
in the aggregate at any one time outstanding and (ii) when added
together with the Indebtedness permitted by Sections 8.1(e) and 8.1(i),
$40,000,000, in the aggregate, at any one time outstanding.
8.2 LIENS.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real
103
<PAGE> 110
or personal, tangible or intangible), whether now owned or after acquired,
except for Permitted Liens.
8.3 NATURE OF BUSINESS.
No Credit Party will, nor will it permit its Subsidiaries to engage in
any business other than the business conducted as of the Closing Date and other
businesses reasonably related thereto.
8.4 CONSOLIDATION AND MERGER.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided that
notwithstanding the foregoing provisions of this Section 8.4, the following
actions may be taken if (a) the Administrative Agent is given prior written
notice of such action, and the Credit Parties execute and deliver such
documents, instruments, certificates and opinions as the Administrative Agent
may request, including, without limitation, those necessary in order to maintain
the perfection and priority of the Liens on the assets of the Credit Parties and
(b) after giving effect thereto no Default or Event of Default exists:
(i) any Domestic Credit Party may be merged or consolidated
with or into another Domestic Credit Party; provided that (A) if the
transaction is between the Parent or the Borrower and another Domestic
Credit Party, the Parent or the Borrower, as applicable, must be the
continuing or surviving entity and (B) the Parent and the Borrower may
not be merged or consolidated with or into each other without the prior
written consent of the Required Lenders; and
(ii) any Foreign Subsidiary may be merged or consolidated with
or into another Foreign Subsidiary; provided that (A) if the
transaction is between a Foreign Subsidiary that is not a Credit Party
and a Foreign Credit Party, the Foreign Credit Party must be the
continuing or surviving entity and (B) if the transaction is between a
Foreign Subsidiary Borrower and another Foreign Subsidiary, the Foreign
Subsidiary Borrower must be the continuing or surviving entity.
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, real property interests (whether owned or leasehold interests),
equipment and securities other than (a) any inventory sold or otherwise disposed
of in the ordinary course of business, (b) obsolete, idle or worn-out assets no
longer used or useful in its business, (c) the sale, lease or transfer or other
disposal by a Domestic Credit Party (other than the Parent or the Borrower) of
any or all of its assets to another Domestic Credit Party so long as (i) the
Domestic Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Collateral Agent may request in order to
maintain the perfection and priority of
104
<PAGE> 111
the Collateral Agent's Liens on the assets of the Domestic Credit Parties as
required by Section 7.12 and 7.13, (ii) after giving effect to such transaction,
no Default or Event of Default exists and (iii) the Borrower shall give the
Administrative Agent at least 30 days' prior written notice of such sale, lease,
transfer or other disposal, (d) the sale, lease or transfer or other disposal by
a Foreign Subsidiary (other than any Foreign Subsidiary Borrower) of any or all
of its assets to a Foreign Credit Party so long as (i) the Foreign Credit
Parties shall cause to be executed and delivered such documents, instruments and
certificates as the Collateral Agent may request in order to maintain the
perfection and priority of the Collateral Agent's Liens on the assets of the
Foreign Credit Parties as required by Section 7.12 and 7.13, (ii) after giving
effect to such transaction, no Default or Event of Default exists and (iii) the
Borrower shall give the Administrative Agent at least 30 days' prior written
notice of such sale, lease, transfer or other disposal, (e) the sale, lease or
transfer or other disposal by a Foreign Subsidiary that is not a Credit Party to
another Foreign Subsidiary, (f) the sale or other dispositions of Cash
Equivalents for Fair Market Value, (g) the transfer of assets which constitute a
Permitted Investment, (h) the sale of the property located at 901 Ostend Street,
Baltimore, Maryland and (i) other sales of assets, in addition to those
permitted above in this Section 8.5; provided that (i) the transfer is for Fair
Market Value, (ii) no Default or Event of Default exists either prior to or
after giving effect thereto, (iii) at least 75% of the consideration received
for such transfer is in cash, (iv) the proceeds of such transfer are within 270
days of such transfer (A) reinvested in Eligible Assets or (B) applied as a
mandatory prepayment in accordance with Section 3.3(b)(ii) and (v) such
transfers do not exceed (A) $10,000,000 during any one fiscal year or (B)
$40,000,000, in the aggregate, during the term of this Credit Agreement.
Upon a sale of assets permitted by this Section 8.5, the Collateral
Agent shall deliver to the Borrower, upon the Borrower's request and at the
Borrower's expense, such documentation as is reasonably necessary to evidence
the release of the Collateral Agent's security interest in such assets,
including, without limitation, amendments or terminations of UCC financing
statements and the return of stock certificates.
8.6 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
make any Investments except for Permitted Investments.
8.7 RESTRICTED PAYMENTS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, (a) declare or pay any dividends or make any other
distribution upon any shares of its Capital Stock of any class (other than
dividends payable solely in Capital Stock) or (b) purchase, redeem or otherwise
acquire or retire or make any provisions for redemption, acquisition or
retirement of any shares of its Capital Stock of any class or any warrants or
options to purchase any such shares; provided that (i) any Subsidiary of the
Borrower may pay dividends to its parent or the Borrower, (ii) any Credit Party
may repurchase or redeem shares of, or options to purchase shares of , Capital
Stock of such Credit Party or stock appreciation rights from officers and
employees (or the heirs of such Persons) of such Credit Party whose employment
has terminated or who have died or retired or become disabled or upon the
vesting of stock appreciation rights,
105
<PAGE> 112
so long as the aggregate amount of such payments in any fiscal year does not
exceed the sum of (A) $2.5 million plus (B) the proceeds of any "key man" life
insurance policies purchased by such Credit Party for the specific purpose of
making such repurchases or redemptions; it being understood that the
cancellation of Indebtedness owed by management to such Credit Party in
connection with such repurchase or redemption shall not be restricted by this
Section 8.7; (iii) any Credit Party may make repurchases of Capital Stock deemed
to occur upon the exercise of employee stock options if such Capital Stock is
surrendered in lieu of the exercise price thereof; and (iv) the Borrower may pay
dividends or otherwise advance amounts to the Parent in amounts equal to (A) the
amounts required for the Parent to pay any federal, state or local income taxes
to the extent that such income taxes are attributable to the income of the
Borrower and its Subsidiaries, (B) the amounts required for the Parent to pay
franchise taxes and other fees required to maintain its legal existence, (C) an
amount not to exceed $200,000 in any fiscal year to permit the Parent to pay
corporate overhead expenses incurred in the ordinary course of business; (D) the
amount required to enable the Parent, on the Closing Date, to repay its 10 1/8%
Notes (and any premium in connection therewith) and to enable the Parent to make
the payments as contemplated by the Merger Agreement; and (E) reasonable and
customary costs and expenses incident to a public offering of the common stock
of the Parent to the extent that the proceeds therefrom are intended to be
contributed to the Borrower.
8.8 TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than (a) on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person other
than an officer, director, shareholder, Subsidiary or Affiliate, (b) with
respect to a transaction or series of transactions involving aggregate payments
or value in excess of $3,000,000, the Board of Directors of the Borrower
(including a majority of the Disinterested Directors) approves such transaction
or series of transactions and (c) with respect to a transaction or series of
transactions involving aggregate payments or value in excess of $15,000,000, the
Borrower shall, prior to the consummation thereof, obtain a written opinion of a
nationally recognized accounting, appraisal or investment banking firm stating
that the transaction is not less favorable than might reasonably be obtained at
such time in a comparable arm's-length transaction with an unrelated third
party.
The provisions of this Section 8.8 shall not limit (i) any payment
permitted by Section 8.7, (ii) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by
the Board of Directors of the Company (including a majority of the Disinterested
Directors), (iii) any transaction pursuant to any contract in existence on the
Closing Date or any amendment or replacement thereof that, taken in its
entirety, is no less favorable to the Borrower than the agreement as in effect
on the Closing Date, (iv) loans or advances to employees in the ordinary course
of business of such Credit Party, not to exceed $1.0 million per employee and
$3.0 million in the aggregate, (v) the payment of indemnities provided for in
such Credit Party's charter and by-laws and reasonable fees to directors of the
Credit Parties who are not employees of the Credit Parties, (vi) any transaction
between or among Credit Parties, (vii)
106
<PAGE> 113
payments to SSB and its Affiliates for investment banking or other financial
services in the ordinary course and not to exceed usual and customary market
rates, (viii) fees, compensation, and indemnities under employment arrangements
entered into by such Credit Party in the ordinary course of business, and (ix)
issuance of Capital Stock of such Credit Party and the granting of registration
rights with respect thereto.
8.9 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, (a)
change its fiscal year or (b) change its articles or certificate of
incorporation, operating agreement, articles of organization, bylaws,
partnership agreement or other charter or organizational documents in any way
that is adverse to the Lenders.
8.10 OTHER INDEBTEDNESS; MATERIAL AGREEMENTS.
(a) No Credit Party will, nor will it permit any of its
Subsidiaries to, after the issuance thereof, amend or modify any of the
terms of any Indebtedness (other than Indebtedness arising under the
Credit Documents or any Hedging Agreement) of such Credit Party or its
Subsidiaries if such amendment or modification, when taken as a whole,
would add or change any terms in a manner adverse to such Credit Party
or its Subsidiaries or to the interest of the Lenders, or shorten the
final maturity or average life to maturity or require any payment to be
made sooner than originally scheduled or increase the interest rate
applicable thereto.
(b) No Credit Party will, nor will it permit any of its
Subsidiaries to, (i) make or offer to make any principal payments with
respect to the Subordinated Debt, (ii) redeem or offer to redeem any of
the Subordinated Debt, (iii) deposit any funds intended to discharge or
defease any of the Subordinated Debt; (iv) make interest payments
(including payment of accrued interest and premium, if any, payable in
connection with a redemption of the Subordinated Securities permitted
under this Section 8.10) in respect of the Subordinated Debt in
violation of the subordination provisions of the Subordinated Loan
Documents or (v) modify or amend the terms of the Subordinated Debt in
any manner adverse to the Lenders.
8.11 LIMITATIONS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to (a) (i) pay dividends or make any
other distribution on any of such Person's Capital Stock, (ii) pay any
Indebtedness owed to the Borrower or any other Credit Party, (iii) make loans or
advances to any Credit Party or (iv) transfer any of its property to any Credit
Party, except for encumbrances or restrictions existing under or by reason of
(A) customary non-assignment or net worth provisions in any lease governing a
leasehold interest or customary provisions in documents evidencing the
transactions permitted by Section 8.1(e), (B) any agreement or other instrument
of a Person existing at the time it becomes a Subsidiary of a Credit Party;
provided that such encumbrance or
107
<PAGE> 114
restriction is not applicable to any other Person, or any property of any other
Person, other than such Person becoming a Subsidiary of a Credit Party and was
not entered into in contemplation of such Person becoming a Subsidiary of such
Credit Party, (C) this Credit Agreement and the other Credit Documents, (D) the
Subordinated Debt, (E) Requirements of Law, (F) encumbrances or restrictions in
effect on the Closing Date as set forth on Schedule 8.11, (G) encumbrances which
result from the renewal, refinancing, extension or amendment of any of the
foregoing; provided such encumbrances or restrictions when taken as a whole are
no more restrictive to such Credit Party or its Subsidiaries and are not less
favorable to the Lenders than those under or pursuant to the agreement so
renewed, refinanced, extended or amended, or, with respect to clause (iv) above
only, (1) any encumbrance or restriction related to Permitted Indebtedness and
Permitted Liens that limits the right of the debtor to dispose of the assets or
property securing such Indebtedness, (2) any encumbrance or restriction in
connection with an acquisition of property, so long as such encumbrance or
restriction relates solely to the property so acquired and was not created in
connection with or in anticipation of such acquisition, (3) customary
non-assignment and non-transfer provisions in leases, contracts or licenses
entered into in the ordinary course of business, (4) customary restrictions
contained in asset sale agreements limiting the transfer of such assets pending
the closing of such sale, (5) Permitted Liens and restrictions in the agreements
creating such Permitted Liens, (6) any agreement or instrument governing
Indebtedness permitted to be incurred by a Foreign Subsidiary, and (7) any
amendments to the foregoing that when taken as a whole are not more restrictive
than those contained in the agreement being amended, or (b) repay or prepay the
Loans and other Credit Party Obligations or to perform its obligations hereunder
and under the other Credit Documents.
8.12 SALE LEASEBACKS.
Other than as set forth below, no Credit Party will, nor will it permit
its Subsidiaries to, directly or indirectly become or remain liable as lessee or
as guarantor or other surety with respect to any lease of any property (whether
real or personal or mixed), whether now owned or hereafter acquired, (a) which
such Credit Party or its Subsidiary has sold or transferred or is to sell or
transfer to any other Person other than a Credit Party or (b) which such Credit
Party or its Subsidiary intends to use for substantially the same purpose as any
other property which has been sold or is to be sold or transferred by such
Credit Party to any Person in connection with such lease. Notwithstanding the
above, this Section shall not apply with respect to property purchased with the
express intent to sell it and lease it back (and such property is actually sold
and leased back within 90 days of the acquisition thereof).
8.13 NEGATIVE PLEDGES.
None of the Credit Parties will, nor will it permit any of its
Subsidiaries to, enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired, or requiring
the grant of any security for such obligation if security is given for some
other obligation; other than, (a) the Indebtedness incurred or assumed, as
applicable, pursuant to Section 8.1(e) may restrict the creation of any
additional Liens on the assets securing such Indebtedness, (b) the Subordinated
Loan Documents may restrict the creation of any Liens on the assets of the
Credit Parties except for Liens created pursuant to the Credit Documents,
108
<PAGE> 115
(c) customary non-assignment or net worth provisions in any lease governing a
leasehold interest, (d) customary non-assignment and non-transfer provisions in
leases, contracts or licenses entered into in the ordinary course of business,
(e) encumbrances or restrictions on the Closing Date as set forth on Schedule
8.11 and (f) encumbrances which result from the renewal, refinancing, extension
or amendment of any of the foregoing; provided such encumbrances or restrictions
when taken as a whole are no more restrictive to such Credit Party or its
Subsidiaries and are not less favorable to the Lenders than those under or
pursuant to the agreement so renewed, refinanced, extended or amended.
8.14 CAPITAL EXPENDITURES.
The Credit Parties will not permit Capital Expenditures to exceed, in
the aggregate, $45,000,000 for any fiscal year; provided that the Credit Parties
may carry forward, for one year only, up to $15,000,000 of any unused Capital
Expenditures from the prior year.
8.15 PARENT.
The Parent will not engage in any business activity or operation other
than (a) owning and holding the Capital Stock of the Borrower, (b) guaranteeing
the Credit Party Obligations and the obligations of the Borrower under the
Subordinated Loan Documents, (c) pledging all of its assets (including without
limitation the Capital Stock of the Borrower) to the Collateral Agent, on behalf
of the Lenders, pursuant to the Collateral Documents, (d) issuing equity
securities, (e) if applicable, preparing filings required by the Securities Act
or the Exchange Act, (f) preparing tax filings required by federal or state law,
(g) guarantees of obligations of Foreign Subsidiaries to the extent such
guarantees are permitted by the terms of this Credit Agreement, (h) incur
Indebtedness permitted by Section 8.1 (m), (i) repurchase or redeem Capital
Stock in accordance with Section 8.7(b) and (j) other miscellaneous legal, tax
and accounting activities related to the foregoing. Furthermore, the Parent will
not (i) sell, transfer or otherwise dispose of any shares of Capital Stock of
the Borrower, (ii) merge with or into any other Person, (iii) hold any assets
other than (A) the Capital Stock of the Borrower, and (B) such amounts allowed
to be transferred to the Parent pursuant to Section 8.7, or (iv) possess any
liabilities other than the liabilities under the Credit Documents, the
Subordinated Debt, tax liabilities and other liabilities in the ordinary course
of business.
8.16 MANAGEMENT FEES.
No Credit Party will, nor will it permit its Subsidiaries to, pay any
management or other fees to the Sponsor (excluding fees paid to the Sponsor on
the Closing Date) that, in the aggregate, exceed $750,000 during any fiscal
year.
109
<PAGE> 116
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall:
(i) default in the payment when due of any
principal of any of the Loans;
(ii) default, and such default shall
continue for one or more Business Days, of any reimbursement
obligation arising from drawings under Letters of Credit; or
(iii) default, and such default shall
continue for three or more Business Days, in the payment when
due of any interest on the Loans, or of any fees or other
amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or
observance of any term, covenant or agreement contained in
Sections 7.2, 7.9, 7.11, 7.15 or 8.1 through 8.16, inclusive;
or
(ii) default in the due performance or
observance by it of any term, covenant or agreement contained
in Sections 7.1 or 7.5 and such default shall continue
unremedied for a period of five Business Days after the
earlier of an executive officer of a Credit Party becoming
aware of such default or notice thereof given by the
Administrative Agent; or
(iii) default in the due performance or
observance by it of any term, covenant or agreement (other
than those referred to in subsections (a), (b) or (c)(i) or
(ii) of this Section 9.1) contained in this Credit Agreement
and such default shall continue unremedied for a period of at
least 30 days after the earlier of an executive officer of a
Credit Party becoming aware of such default or notice thereof
given by the Administrative Agent.
110
<PAGE> 117
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of an
executive officer of a Credit Party becoming aware of such default or
notice thereof given by the Administrative Agent, (ii) any Credit
Document shall fail to be in full force and effect or any Credit Party
shall so assert or (iii) any Credit Document shall fail in any material
respect to give the Administrative Agent, the Collateral Agent and/or
the Lenders the security interests, Liens, rights, powers and
privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following:
(i) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit Party
or any of its Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of its affairs; or (ii) an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect is commenced against any Credit Party or any
of its Subsidiaries and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its
Subsidiaries shall admit in writing its inability to pay its debts
generally as they become due or any action shall be taken by such
Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) of a Credit Party or any of their Subsidiaries in an
aggregate principal amount in excess of $5,000,000, including, without
limitation, the Subordinated Debt, (i) a Credit Party or one of its
Subsidiaries shall (A) default in any payment (beyond the applicable
grace period with respect thereto, if any) with respect to any such
Indebtedness, or (B) default (after giving effect to any applicable
grace period) in the observance or performance of any obligation
relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause, or permit, the holder
or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or
lapse of time is required) any such Indebtedness to become due prior to
its stated maturity; (ii) any such Indebtedness shall be declared due
and payable, or required to be prepaid other than by a regularly
scheduled required prepayment prior to the stated maturity thereof; or
(iii) any such Indebtedness shall mature and remain unpaid. With
respect to any Indebtedness incurred
111
<PAGE> 118
pursuant to Section 8.1(m), the holder thereof demands payment
thereunder or causes any payment to be made other than as permitted by
Section 8.7(b)(ii).
(g) Judgments. One or more judgments, orders, or decrees shall
be entered against any Credit Party or any of its Subsidiaries
involving a liability of $2,000,000 or more, in the aggregate, (to the
extent not paid or covered by insurance provided by a carrier who has
acknowledged coverage) and such judgments, orders or decrees (i) are
the subject of any enforcement proceeding commenced by any creditor or
(ii) shall continue unsatisfied, undischarged and unstayed for a period
ending on the first to occur of (A) the last day on which such
judgment, order or decree becomes final and unappealable or (B) 60
days.
(h) ERISA. The occurrence of any of the following events or
conditions if such occurrence would cause or could be reasonably
expected to cause a Material Adverse Effect: (i) any "accumulated
funding deficiency," as such term is defined in Section 302 of ERISA
and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any Lien shall arise on the assets of any
Credit Party or any of its Subsidiaries or any of its ERISA Affiliates
in favor of the PBGC or a Plan; (ii) a Termination Event shall occur
with respect to a Single Employer Plan, which is, in the reasonable
opinion of the Agent, likely to result in the termination of such Plan
for purposes of Title IV of ERISA; (iii) a Termination Event shall
occur with respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Agent, likely to result in
(A) the termination of such Plan for purposes of Title IV of ERISA, or
(B) any Credit Party or any of its Subsidiaries or any of its ERISA
Affiliates incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA),
or insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; (iv) any prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit Party or any of
its Subsidiaries or any of its ERISA Affiliates to any material
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which any Credit Party or any of its Subsidiaries or any of
its ERISA Affiliates has agreed or is required to indemnify any Person
against any such liability; (v) any Credit Party or any of its
Subsidiaries or any of its ERISA Affiliates shall fail to pay any
required contributions or payments to any Foreign Pension Plan or any
Foreign Employee Benefit Plan on or before the due date for such
required installment or payment; or (vi) any Foreign Employee Benefit
Plan or any Foreign Pension Plan shall fail to be in compliance in all
material respects with all laws, regulations and rules applicable
thereto and the governing documents for such Foreign Employee Benefit
Plan or such Foreign Pension Plan , as applicable.
(i) Guaranties. (i) The guaranty given by the Domestic Credit
Parties hereunder or by any Additional Domestic Credit Party hereafter
or any provision thereof shall cease to be in full force and effect, or
any Domestic Guarantor thereunder or any Person acting by or on behalf
of such Domestic Guarantor shall deny or disaffirm such Domestic
Guarantor's obligations under such guaranty or (ii) the guaranty given
by the
112
<PAGE> 119
Foreign Guarantors pursuant to the Foreign Guaranty Agreements or by
any other Foreign Credit Party hereafter or any provision thereof shall
cease to be in full force and effect, or any Foreign Guarantor
thereunder or any Person acting by or on behalf of such Foreign
Guarantor shall deny or disaffirm such Foreign Guarantor's obligations
under such guaranty.
(j) Ownership. There shall occur a Change of Control.
(k) Subordinated Debt. (i) Any Governmental Authority with
applicable jurisdiction determines that the Lenders are not holders of
Designated Senior Indebtedness or Designated Senior Indebtedness of
Guarantors (as such terms are defined in the Subordinated Loan
Documents), (ii) the subordination provisions governing the
Subordinated Debt shall, in whole or in part, terminate, cease to be
effective or cease to be legally valid, binding and enforceable as to
any holder of the Subordinated Debt or (iii) an "Event of Default"
exists as defined in the Subordinated Debt.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent (or the Collateral Agent, as applicable) shall, upon the
request and direction of the Required Lenders, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of
the Agents or any Lender to enforce its claims against the Credit Parties except
as otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(e), it will
immediately pay) to the Collateral Agent additional cash, to be held by
the Collateral Agent, for the benefit of the Lenders, in a cash
collateral account as additional security for the LOC Obligations in
respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and
113
<PAGE> 120
remedies existing under the Collateral Documents, all rights and
remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents or in respect of the
Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent or any of the Lenders in connection with
enforcing the rights of the Lenders under the Credit Documents and any
protective advances made by the Administrative Agent with respect to
the Collateral under or pursuant to the terms of the Collateral
Documents;
SECOND, to payment of any fees owed to the Administrative
Agent, the Issuing Lender or any Lender;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder;
FOURTH, to the payment of the outstanding principal amount of
the Loans (other than the Foreign Currency Loans), to the payment or
cash collateralization of the outstanding LOC Obligations and to any
principal amounts outstanding under Hedging Agreements between a Credit
Party and a Lender or an Affiliate of a Lender, pro rata, as set forth
below;
FIFTH, to the payment of Foreign Currency Loans, pro rata as
set forth below;
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
114
<PAGE> 121
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, LOC
Obligations and obligations under Hedging Agreements held by such Lender bears
to the aggregate then outstanding Loans, LOC Obligations and obligations under
Hedging Agreements) of amounts available to be applied pursuant to clauses
"FIRST", "THIRD," "FOURTH," "FIFTH" and "SIXTH" above; and (c) to the extent
that any amounts available for distribution pursuant to clause "FOURTH" above
are attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Collateral Agent in a cash collateral
account and applied (x) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FOURTH", "FIFTH" and "SIXTH" above in the manner provided
in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
(a) Each Lender hereby designates and appoints Bank of
America, N.A. as Administrative Agent and as Collateral Agent and
Citicorp North America, Inc. as Syndication Agent of such Lender to act
as specified herein and in the other Credit Documents, and each such
Lender hereby authorizes the Agents, as the agents for such Lender, to
take such action on its behalf under the provisions of this Credit
Agreement and the other Credit Documents and to exercise such powers
and perform such duties as are expressly delegated by the terms hereof
and of the other Credit Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agents
shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or
any of the other Credit Documents, or shall otherwise exist against the
Agents. The provisions of this Section (other than Section 10.9) are
solely for the benefit of the Agents and the Lenders and none of the
Credit Parties shall have any rights as a third party beneficiary of
the provisions hereof (other than Section 10.9). In performing its
functions and duties under this Credit Agreement and the other Credit
Documents, each Agent shall act solely as an agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation
or relationship of agency or trust with or for any Credit Party.
(b) Citicorp North America, Inc., in is capacity as
Syndication Agent and Bank One, NA (Main Office Chicago) in its
capacity as Documentation Agent, shall have
115
<PAGE> 122
no duties or obligations whatsoever under this Credit Agreement or any
of the other Credit Documents.
10.2 DELEGATION OF DUTIES.
An Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. An Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS.
Neither the Agents nor any of their officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct) or
(b) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of the Credit Parties
contained herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement
referred to or provided for in, or received by an Agent under or in connection
herewith or in connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure of
any Credit Party to perform its obligations hereunder or thereunder. The Agents
shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by any Credit
Party in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by an Agent to the Lenders or by or on behalf of
the Credit Parties to the Agents or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or the use of the Letters of Credit or of the
existence or possible existence of any Default or Event of Default or to inspect
the properties, books or records of the Credit Parties. The Agents are not
trustees for the Lenders and owe no fiduciary duty to the Lenders.
10.4 RELIANCE ON COMMUNICATIONS.
An Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by an Agent with reasonable care). Each Agent may deem
and treat the Lenders as the owner of its interests hereunder for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Administrative Agent in accordance with Section
11.3(b). An Agent shall be fully
116
<PAGE> 123
justified in failing or refusing to take any action under this Credit Agreement
or under any of the other Credit Documents unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. An Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder or under any of the
other Credit Documents in accordance with a request of the Required Lenders (or
to the extent specifically provided in Section 11.6, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders (including their successors and assigns).
10.5 NOTICE OF DEFAULT.
An Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Borrower and/or the Lenders, as applicable. The Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agents nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the Agents or
any affiliate thereof hereinafter taken, including any review of the affairs of
any Credit Party, shall be deemed to constitute any representation or warranty
by the Agents to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Credit Parties and made its own decision to make its Loans hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Credit Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Credit Parties which may come
into the possession of the Agents or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
117
<PAGE> 124
10.7 INDEMNIFICATION.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Commitments (or if
the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interest of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following payment in full of the Credit Party Obligations) be imposed
on, incurred by or asserted against an Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by an Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of an Agent. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished; provided
that no Agent shall be indemnified for any event caused by its gross negligence
or willful misconduct. The agreements in this Section shall survive the payment
of the Credit Party Obligations and all other obligations and amounts payable
hereunder and under the other Credit Documents.
10.8 AGENTS IN THEIR INDIVIDUAL CAPACITY.
Each Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or any other
Credit Party as though such Agent were not an Agent hereunder. With respect to
the Loans made and Letters of Credit issued and all obligations owing to it, an
Agent shall have the same rights and powers under this Credit Agreement as any
Lender and may exercise the same as though they were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
Any Agent may, at any time, resign upon 20 days written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 45 days
after the notice of resignation, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a commercial
bank organized under the laws of the United States of America or of any state
thereof and has a combined capital and surplus of at least $400,000,000. Upon
the acceptance of any appointment as an Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as an Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Section
118
<PAGE> 125
10.9 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was an Agent under this Credit Agreement. If no successor
Administrative Agent has accepted appointment as Administrative Agent within
thirty (30) days after the retiring Administrative Agent's giving notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
become effective and the Lenders shall perform all duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided for above. Likewise, if no successor
Collateral Agent has accepted appointment as Collateral Agent within thirty (30)
days after the retiring Collateral Agent's giving notice of resignation, the
retiring Collateral Agent's resignation shall nevertheless become effective and
the Lenders shall perform all duties of the Collateral Agent under the
Collateral Documents until such time, if any, as the Required Lenders appoint a
successor Collateral Agent as provided for above. There shall at all times be a
Person servicing as Administrative Agent hereunder and, so long as no Default or
Event of Default shall have occurred and be continuing, the appointment of any
new Administrative Agent shall require the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid (or on an invoice basis) to a reputable national
overnight air courier service, or (d) the fifth Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address or telecopy numbers set forth
on Schedule 11.1, or at such other address as such party may specify by written
notice to the other parties hereto.
11.2 RIGHT OF SET-OFF.
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 of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights 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 Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of any Credit Party against obligations and liabilities of such Credit
Party to the Lenders hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be
119
<PAGE> 126
contingent or unmatured, and any such set-off shall be deemed to have been made
immediately upon the occurrence of an Event of Default even though such charge
is made or entered on the books of such Lender subsequent thereto. The Credit
Parties hereby agree that to the extent permitted by law any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section
11.3(c), 2.5, 2.6 or 2.7 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder and
any such set-off shall reduce the amount owed by such Credit Party to the
Lender.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit 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 that none of the Credit
Parties may assign or transfer any of its interests and obligations in
violation of Section 8.4 or 8.5 or without the prior written consent of
either the Required Lenders or the Lenders, as the terms set forth in
Section 11.6 may require; and provided further that the rights of each
Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 11.3.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) except in the case of an assignment to another
Lender, an Affiliate of an existing Lender or any fund that
buys or invests in commercial or bank loans and is advised or
managed by an investment advisor to an existing Lender or an
Affiliate of such Lender or an assignment of all of a Lender's
rights and obligations under this Credit Agreement, any such
partial assignment shall be in an amount at least equal to
$1,000,000 (or, if less, the remaining amount of the
Commitment being assigned by such Lender); and
(ii) the parties to such assignment shall execute and
deliver to the Administrative Agent and the Issuing Lender for
their acceptance an Assignment and Acceptance substantially in
the form of Exhibit 11.3(b), together with any Note subject to
such assignment and a processing fee of $3,500 (with only one
such fee payable in connection with simultaneous assignments
to funds advised by the same investment advisor).
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Credit Agreement. Upon the consummation of any
assignment pursuant to this Section 11.3(b), the assignor, the
Administrative Agent and the Credit Parties shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor
and the assignee. If the assignee is not a United States person under
Section 7701(a)(30) of the
120
<PAGE> 127
Code, it shall deliver to the Credit Parties and the Administrative
Agent certification as to exemption from deduction or withholding of
Taxes in accordance with Section 3.13.
(c) The Administrative Agent, acting for this purpose (but
only for this purpose) as an agent for the Borrower, shall maintain at
its address referred to in Section 11.1 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Credit Parties, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Credit Agreement. The Register shall
be available for inspection by the Credit Parties or any Lender at any
reasonable time and from time to time upon reasonable prior notice. Any
assignment of any Loan or other Credit Party Obligations shall be
effective only upon an entry with respect thereto being made in the
Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit 11.3(b), (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Each Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations
under this Credit Agreement (including all or a portion of its
Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions contained in
Sections 3.9 through 3.14, inclusive, and the right of set-off
contained in Section 11.2 (but only to the extent of the rights of the
Lender granting such participation), and (iv) the Credit Parties shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and such Lender shall retain the sole right to enforce the obligations
of the Credit Parties relating to the Credit Party Obligations owing to
such Lender and to approve any amendment, modification, or waiver of
any provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal of or the
rate at which interest is payable on such Loans or Notes, extending any
scheduled principal payment date or date fixed for the payment of
interest on such Loans or Notes, or extending its Commitment).
(f) Notwithstanding any other provision set forth in this
Credit Agreement, any Lender may, without the consent of the Borrower
or the Administrative Agent, at any time (i) assign and pledge all or
any portion of its Loans and its Notes to any Federal
121
<PAGE> 128
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank or (ii) pledge
all or any portion of its rights (but not its obligations to make Loans
or participate in Letters of Credit) hereunder to any trustee or
holders of obligations owed, or securities issued, by such Lender as
security for such obligations or securities or to any other
representative of such holders. No such assignment shall release the
assigning Lender from its obligations hereunder.
(g) Any Lender may furnish any information concerning a Credit
Party or any of their Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants), subject, however, to the provisions of
Section 11.17.
(h) SPC's. Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") the option to fund all or any part of any
Loan that such Granting Lender would otherwise be obligated to fund
pursuant to this Credit Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Loan, (ii) if an
SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Loan, the Granting Lender shall be obligated to
fund such Loan pursuant to the terms hereof, (iii) no SPC shall have
any voting rights pursuant to Section 11.6 and (iv) with respect to
notices, payments and other matters hereunder, the Credit Parties, the
Agents and the Lenders shall not be obligated to deal with an SPC, but
may limit their communications and other dealings relevant to such SPC
to the applicable Granting Lender. The funding of a Loan by an SPC
hereunder shall utilize the Revolving Loan Commitment of the Granting
Lender to the same extent that, and as if, such Loan were funded by
such Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or payment under this Credit Agreement for
which a Lender would otherwise be liable for so long as, and to the
extent, the Granting Lender provides such indemnity or makes such
payment. Notwithstanding anything to the contrary contained in this
Credit Agreement, any SPC may disclose on a confidential basis any
non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee
to such SPC. This Section may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Loan is being
funded by an SPC at the time of such amendment.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Agents or any Lender and any of the Credit
Parties 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 and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agents or any Lender would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle the Credit Parties to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of
122
<PAGE> 129
the rights of the Agents or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
(a) The Credit Parties jointly and severally agree to: (a) pay
on demand all reasonable out-of-pocket costs and expenses of (i) the
Agents, BAS and SSB in connection with (A) the syndication,
negotiation, preparation, execution and delivery and administration of
this Credit Agreement and the other Credit Documents and the other
documents and instruments referred to therein (including, without
limitation, the reasonable fees and expenses of Moore & Van Allen,
special counsel to the Administrative Agent, and the fees and expenses
of counsel for the Agents in connection with collateral or foreign
issues), and (B) any amendment, waiver or consent relating hereto and
thereto including, but not limited to, any such amendments, waivers or
consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under
this Credit Agreement and (ii) the Agents and the Lenders in connection
with (A) enforcement of the Credit Documents and the documents and
instruments referred to therein, including, without limitation, in
connection with any such enforcement, the reasonable fees and
disbursements of counsel for the Agents and each of the Lenders, and
(B) any bankruptcy, insolvency or similar proceeding of a Credit Party
or any of its Subsidiaries and (b) indemnify each Agent, BAS, SSB and
each Lender, its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason
of, any investigation, litigation or other proceeding (whether or not
any Agent or Lender is a party thereto) related to (i) the entering
into and/or performance of any Credit Document or the use of proceeds
of any Loans (including other extensions of credit) hereunder or the
consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding, (ii) any Environmental
Claim (except to the extent such claim arises from the gross negligence
or willful misconduct of any indemnified party) and (iii) any claims
for Non-Excluded Taxes.
(b) Without prejudice to the survival of any other agreement
of the Credit Parties hereunder, the agreements and obligations of the
Credit Parties contained in this Section 11.5 shall survive the
repayment of the Loans, LOC Obligations and other obligations under the
Credit Documents and the termination of the Commitments hereunder.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement, nor any other Credit Document, nor any
of the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Credit Parties; provided
that:
123
<PAGE> 130
(a) no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender affected thereby,
(i) extend the final maturity of any Loan or the time
of payment of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit, or
modify, extend or waive any Principal Amortization Payment, or
any portion thereof;
(ii) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability
of any post-default increase in interest rates) thereon or
fees hereunder;
(iii) reduce or waive the principal amount of any
Loan or of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit;
(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that
a waiver of any Default or Event of Default or a mandatory
reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender);
(v) release all or substantially all of the
Collateral securing the Credit Party Obligations hereunder
(provided that the Collateral Agent may, without consent from
any other Lender, release any Collateral that is sold or
transferred by a Credit Party in conformance with Section
8.5);
(vi) release the Borrower or substantially all of the
other Credit Parties from its or their obligations under the
Credit Documents (provided that the Administrative Agent may,
without the consent from any other Lender, release any
Guarantor that is sold or transferred in conformance with
Section 8.5);
(vii) amend, modify or waive any provision of this
Section 11.6 or Section 3.4(a), 3.4(b)(i), 3.4(c), 3.7, 3.8,
9.1(a), 11.2, 11.3 or 11.5;
(viii) reduce any percentage specified in, or
otherwise modify, the definition of Required Lenders;
(ix) consent to the assignment or transfer by the
Parent, the Borrower or all or substantially all of the other
Credit Parties of any of its or their rights and obligations
under (or in respect of) the Credit Documents except as
permitted thereby; or
(x) waive any condition precedent set forth in
Section 5.1.
124
<PAGE> 131
(b) in addition to any consent of the Required Lenders or the
Lenders as set forth above, any amendment, modification or waiver that
changes the allocation of any payments or the realization of proceeds
of Collateral among the Revolving Loans, the Tranche A Term Loans
and/or the Tranche B Term Loans (or between any two of such Loans), and
any amendment, modification or waiver that affects the order of
application of payments specified in Section 3.3(c), shall also require
the consent of, if affected thereby, (i) Lenders holding at least 50%
of the Revolving Committed Amount, (ii) Lenders holding at least 50% of
the outstanding Tranche A Term Loans and (iii) Lenders holding at least
50% of the outstanding Tranche B Term Loans.
(c) no provision of Section 10 may be amended without the
consent of the Administrative Agent, no provision of Sections 2.2 or
3.4(b)(ii) may be amended without the consent of the Issuing Lender, no
provision of Section 2.5 may be amended without the consent of the
Swing Line Lender and no provision of Section 2.6 or 3.4(c) may be
amended without the consent of the then Foreign Currency Lenders.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans or the Letters of Credit, and each Lender acknowledges that the provisions
of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart. Delivery of an executed counterpart by facsimile shall be as
effective as an original executed counterpart and shall be deemed a
representation that an original executed counterpart will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then, notwithstanding the provisions of Section 11.6, it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders adversely
affected thereby; provided, however, that all other benefits and obligations
under the Credit Documents shall apply to such Defaulting Lender.
125
<PAGE> 132
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder.
11.11 GOVERNING LAW; VENUE; FOREIGN CREDIT PARTIES.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
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
Credit Agreement, each Credit Party hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of such courts. Each Credit Party further 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 it at the
address for notices pursuant to Section 11.1, such service to become
effective 30 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against a
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 Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof 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 Foreign Subsidiary Borrower hereby irrevocably
appoints United States Can Company, with an address on the date hereof
as specified on Schedule 11.1 (or such other Persons as may from time
to time be identified to the Administrative Agent in writing and is
deemed satisfactory to the Administrative Agent) as its true and lawful
attorney-in-fact (the "Service of Process Agent") in its name, place
and stead to accept service of any and all writs, summons and other
legal process and any such enforcement proceeding brought in the State
of New York and agrees that service by the mailing, of copies thereof
by registered or certified mail, postage prepaid, to it at the address
for notices pursuant to Section 11.1, such service to become effective
30 days after such mailing, of any
126
<PAGE> 133
enforcement proceeding may be made upon such Service of Process Agent
and that it will take such action as necessary to continue such
appointment in full force and effect or to appoint another such Service
of Process Agent satisfactory to the Administrative Agent for service
of process. United States Can Company hereby irrevocably accepts such
appointment and agrees to serve in the capacity of Service of Process
Agent.
(d) With respect to each Foreign Credit Party that becomes a
party hereto:
(i) Without limiting the generality of subsections
(a) and (b) of this Section 11.11, such Foreign Credit Party
agrees that any controversy or claim with respect to it
arising out of or relating to this Credit Agreement or the
other Credit Documents may, at the sole option of the
Administrative Agent and the Lenders, be settled immediately
by submitting the same to binding arbitration in the City of
New York, New York (or such other place as the parties may
agree) in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. Upon the request and
submission of any controversy or claim for arbitration
hereunder, the Administrative Agent shall give such Foreign
Credit Party not less than 45 days written notice of the
request for arbitration, the nature of the controversy or
claim, and the time and place set for arbitration. Such
Foreign Credit Party agrees that such notice is reasonable to
enable it sufficient time to prepare and present its case
before the arbitration panel. Judgment on the award rendered
by the arbitration panel may be entered in any court
including, without limitation, any court of the State of New
York or any federal court sitting in the State of New York.
The expenses of arbitration shall be paid by such Foreign
Credit Party.
(ii) The provisions of subsection (i) above are
intended to comply with the requirements of the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards
(the "Convention"). To the extent that any provisions of such
subsection (i) are not consistent with or fail to conform to
the requirements set out in the Convention, such subsection
(i) shall be deemed amended to conform to the requirements of
the Convention.
(iii) Such Foreign Credit Party hereby specifically
consents and submits to the jurisdiction of the courts of the
State of New York and courts of the United States located in
the State of New York for purposes of entry of a judgment or
arbitration award entered by the arbitration panel.
11.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Agents, the Issuing
127
<PAGE> 134
Lenders, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys or agents, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or
otherwise relating to any of the transactions contemplated herein.
11.13 JUDGMENT CURRENCY.
(a) Each Credit Party's obligations under the Credit Documents
to make payments in Dollars (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 an Agent or a Lender of the full
amount of the Obligation Currency expressed to be payable to such Agent
or such Lender under the Credit Documents. If, for the purpose of
obtaining or enforcing judgment against any Credit Party 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 U.S.
Dollar Equivalent, determined 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, such amount payable by the applicable Credit
Party shall be reduced or increased, as applicable, such 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.
11.14 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
128
<PAGE> 135
11.16 BINDING EFFECT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the
Borrower, the Domestic Guarantors and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrower, the Domestic Guarantors, the
Administrative Agent, any Additional Domestic Credit Party or any
Foreign Credit Party and each Lender and their respective successors
and assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC Obligations,
interest, fees and other Credit Party Obligations have been paid in
full and all Commitments and Letters of Credit have been terminated.
Upon termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents and the Collateral Agent shall, at the request and
expense of the Borrower, deliver all Collateral in its possession to
the Borrower and release all Liens on Collateral; provided that should
any payment, in whole or in part, of the Credit Party Obligations be
rescinded or otherwise required to be restored or returned by an Agent
or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all Liens of the Lenders shall reattach
to the Collateral and all amounts required to be restored or returned
and all costs and expenses incurred by an Agent or Lender in connection
therewith shall be deemed included as part of the Credit Party
Obligations.
11.17 CONFIDENTIALITY.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.10 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall affect
the disclosure of any such information to (i) the extent such Lender in good
faith believes is required by statute, rule, regulation or judicial process,
(ii) counsel for such Lender or to its accountants, (iii) bank examiners or
auditors or comparable Persons (including, without limitation, the National
Association of Insurance Commissioners), (iv) any Affiliate of such Lender, (v)
any other Lender, or any assignee, transferee or participant, or any potential
assignee, transferee or participant, of all or any portion of any Lender's
rights under this Credit Agreement or any direct or indirect contractual
counterparty in any swap, hedge or similar agreement (or to any of such
contractual counterparty's professional advisor), in each case who is notified
of the confidential nature of the information and agrees to be bound by this
provision or provisions reasonably comparable hereto, (vi) any other Person in
connection with any litigation to which any one or more of the Lenders is a
party or (vii) to the extent necessary in connection with the exercise of rights
and remedies under any Credit Document; and provided further that no Lender
shall have any obligation under this Section 11.17 to the extent any such
information becomes available on a non-confidential basis from a source other
than a Credit
129
<PAGE> 136
Party or its Subsidiaries or that any information becomes publicly available
other than by a breach of this Section 11.17.
11.18 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of an Agent, to promptly
take such actions, as reasonably requested, as is necessary to ensure that the
Lenders have a perfected security interest in the Collateral subject to no Liens
other than Permitted Liens.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
130
<PAGE> 137
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
UNITED STATES CAN COMPANY,
a Delaware corporation
By: /s/ Paul W. Jones
--------------------------------------
Name: Paul W. Jones
Title: President and Chief Executive
Officer
DOMESTIC
GUARANTORS:
U.S. CAN CORPORATION,
a Delaware corporation
By: /s/ Paul W. Jones
--------------------------------------
Name: Paul W. Jones
Title: President and Chief Executive
Officer
USC MAY VERPACKUNGEN HOLDING INC.,
a Delaware corporation
By: /s/ Paul W. Jones
--------------------------------------
Name: Paul W. Jones
Title: President
<PAGE> 138
Signature Page to United States Can Company
Credit Agreement
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as
Administrative Agent
By: /s/ W. THOMAS BARNETT
--------------------------------------
Name: W. Thomas Barnett
------------------------------------
Title: Managing Director
-----------------------------------
BANK OF AMERICA, N.A., in its capacity as
a Lender
By: /s/ W. THOMAS BARNETT
--------------------------------------
Name: W. Thomas Barnett
------------------------------------
Title: Managing Director
-----------------------------------
<PAGE> 139
Signature Page to United States Can Company
Credit Agreement
CITICORP NORTH AMERICA, INC.,
individually in its capacity as a Lender
and in its capacity as Syndication Agent
By: /s/ DAVID J. WIRDNAM
--------------------------------------
Name: David J. Wirdnam
------------------------------------
Title: Director
-----------------------------------
<PAGE> 140
Signature Page to United States Can Company
Credit Agreement
BANK ONE, NA (MAIN OFFICE CHICAGO),
individually in its capacity as Lender
and in its capacity as Documentation
Agent
By: /s/ DIANE M. FAUNDA
--------------------------------------
Name: Diane M. Faunda
------------------------------------
Title: Vice President
-----------------------------------
<PAGE> 141
Signature Page to United States Can Company
Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ W. MICHAEL GEORGE
--------------------------
Name: W. Michael George
------------------------
Title: Managing Director
-----------------------
<PAGE> 142
Signature Page to United States Can Company
Credit Agreement
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. ASHBY
----------------------------------
Name: F.C.H. Ashby
--------------------------------
Title: Senior Manager Loan Operations
-------------------------------
<PAGE> 143
Signature Page to United States Can Company
Credit Agreement
THE NORTHERN TRUST COMPANY
By: /s/ DANIEL A. TOLL
--------------------------
Name: Daniel A. Toll
------------------------
Title: Vice President
<PAGE> 144
Signature Page to United States Can Company
Credit Agreement
OAK BROOK BANK
By: /s/ HENRY WESSEL
--------------------------
Name: Henry Wessel
------------------------
Title: Vice President
-----------------------
<PAGE> 145
Signature Page to United States Can Company
Credit Agreement
WEBSTER BANK
By: /s/ JULIANA B. DALTON
--------------------------
Name: Juliana B. Dalton
------------------------
Title: Vice President
-----------------------
<PAGE> 146
Signature Page to United States Can Company
Credit Agreement
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ CHRIS DROUSSIOTIS
--------------------------
Name: Chris Droussiotis
------------------------
Title: Vice President
-----------------------
<PAGE> 147
Signature Page to United States Can Company
Credit Agreement
CREDIT AGRICOLE INDOSUEZ
By: /s/ CHARLES HIATT
--------------------------------------
Name: Charles Hiatt
------------------------------------
Title: Vice President
-----------------------------------
Manager
By: /s/ SUSAN C. KNIGHT
--------------------------------------
Name: Susan Knight
------------------------------------
Title: Vice President
-----------------------------------
Sr. Relationship Manager
<PAGE> 148
Signature Page to United States Can Company
Credit Agreement
PPM AMERICA, INC., As attorney in fact, on behalf of
Jackson National Life Insurance Company
By: /s/ DAVID C. WAGNER
-------------------------------------
Name: David C. Wagner
-----------------------------------
Title: Vice President
----------------------------------
<PAGE> 149
Signature Page to United States Can Company
Credit Agreement
PPM SPYGLASS FUNDING TRUST
By: /s/ ANN E. MORRIS
------------------------
Name: Ann E. Morris
----------------------
Title: Authorized Agent
---------------------
<PAGE> 150
Signature Page to United States Can Company
Credit Agreement
FRANKLIN FLOATING RATE MASTER SERIES
By: /s/ CHAUNCEY LUFKIN
------------------------
Name: Chauncey Lufkin
----------------------
Title: Vice President
---------------------
<PAGE> 151
Signature Page to United States Can Company
Credit Agreement
CREDIT SUISSE FIRST BOSTON
By: /s/ BARRY A. ZAMORE
------------------------
Name: Barry A. Zamore
----------------------
Title: Vice President
---------------------
By: /s/ CLAIRE M. MCCARTHY
------------------------
Name: Claire M. McCarthy
----------------------
Title: Managing Director
---------------------
<PAGE> 152
Signature Page to United States Can Company
Credit Agreement
KZH CNC LLC
By: /s/ SUSAN LEE
-----------------------
Name: Susan Lee
---------------------
Title: Authorized Agent
--------------------
<PAGE> 153
Signature Page to United States Can Company
Credit Agreement
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ JAMES R. DINGLER
--------------------------
Name: James R. Dingler
------------------------
Title: Director
-----------------------
<PAGE> 154
Signature Page to United States Can Company
Credit Agreement
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By: /s/ PETER GEWIRTZ
--------------------------
Name: Peter Gewirtz
------------------------
Title: Vice President
-----------------------
<PAGE> 155
Signature Page to United States Can Company
Credit Agreement
NUVEEN SENIOR INCOME FUND
By: Nuveen Senior Loan Asset Management, Inc.
By: /s/ LISA M. MINCHESKI
---------------------
Name: Lisa M. Mincheski
---------------------
Title: Managing Director
---------------------
<PAGE> 156
Signature Page to United States Can Company
Credit Agreement
KEMPER FLOATING RATE FUND
By: /s/ KELLY D. BABSON
---------------------------
Name: Kelly D. Babson
------------------------
Title: Managing Director
-----------------------
<PAGE> 157
Signature Page to United States Can Company
Credit Agreement
FLEET NATIONAL BANK AS TRUST
ADMINISTRATOR FOR LONG LANE MASTER
TRUST IV
By: /s/ RENEE ROSS NADLER
-------------------------------
Name: Renee Ross Nadler
-----------------------------
Title: Managing Director
----------------------------
<PAGE> 158
Signature Page to United States Can Company
Credit Agreement
MUIRFIELD TRADING LLC
By: /s/ ANN E. MORRIS
-------------------------
Name: Ann E. Morris
-----------------------
Title: Asst. Vice President
----------------------
<PAGE> 159
Signature Page to United States Can Company
Credit Agreement
SEQUILS-CUMBERLAND I, LTD.
By: Springfield Asset Management, L.L.C.
as its Collateral Manager
By: /s/ DALE BURROW
-----------------------------
Name: Dale Burrow
---------------------------
Title: Senior Portfolio Manager
--------------------------
<PAGE> 160
Signature Page to United States Can Company
Credit Agreement
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ ANN E. MORRIS
--------------------------
Name: Ann E. Morris
------------------------
Title: Authorized Agent
-----------------------
<PAGE> 161
Signature Page to United States Can Company
Credit Agreement
STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY
By: /s/ JAMES R. FELLOWS
-----------------------------------------
Name: James R. Fellows
---------------------------------------
Title: Senior Vice President
Stein Roe & Farnham Incorporated,
as Advisor to the Stein Roe Floating
Rate Limited Liability Company
--------------------------------------
<PAGE> 162
Signature Page to United States Can Company
Credit Agreement
<TABLE>
<S> <C>
LIBERTY-STEIN ROE ADVISOR FLOATING RATE
ADVANTAGE FUND
By: Stein Roe & Farnham Incorporated, as Advisor
By: /s/ JAMES R. FELLOWS
--------------------------
Name: James R. Fellows
------------------------
Title: Sr. Vice President & Portfolio Manager
</TABLE>
<PAGE> 163
Signature Page to United States Can Company
Credit Agreement
<TABLE>
<S> <C>
THE SUMITOMO TRUST AND BANKING CO., LTD.
By: /s/ STEPHEN A. STRATICO
----------------------------
Name: Stephen A. Stratico
--------------------------
Title: Vice President
-------------------------
</TABLE>
<PAGE> 164
Signature Page to United States Can Company
Credit Agreement
KZH SOLEIL-2 LLC
By: /s/ SUSAN LEE
--------------------------
Name: Susan Lee
------------------------
Title: Authorized Agent
-----------------------
<PAGE> 165
Signature Page to United States Can Company
Credit Agreement
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/BRIAN BUSCHER
----------------------------------
Name: Brian T. Buscher
----------------------------------
Title: Manager Operations & Compliance
----------------------------------
<PAGE> 166
Signature Page to United States Can Company
Credit Agreement
WINGED FOOT FUNDING TRUST
By: /s/ ANN E. MORRIS
----------------------
Name: Ann E. Morris
---------------------
Title: Authorized Agent
---------------------
<PAGE> 167
Exhibit 2.1(b)
to
Credit Agreement
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
RE: Credit Agreement dated as of October 4, 2000 among United States Can
Company (the "Borrower"), the Foreign Subsidiary Borrowers party
thereto, U.S. Can Corporation and each of the Domestic Subsidiaries of
U.S. Can Corporation, as Domestic Guarantors, Bank of America, N.A., as
Administrative Agent, CitiCorp North America, Inc., as Syndication
Agent, Bank One, NA (Main Office Chicago), as Documentation Agent, and
the Lenders party thereto (as the same may be amended, modified,
extended, supplemented or restated from time to time, the "Credit
Agreement")
DATE: _____________,____
-----------------------------------------------------------------
1. This Notice of Borrowing is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting Revolving Loans in the
amount of $__________ to be funded on ____________, at the interest rate
option set forth in paragraph 3 below. Subsequent to the funding of the
requested Revolving Loans, the aggregate principal amount of Revolving
Loans outstanding plus LOC Obligations outstanding plus Swing Line Loans
outstanding plus the U.S. Dollar Equivalent of Foreign Currency Loans
outstanding will be $______________, which is less than or equal to the
Revolving Committed Amount.
3. The interest rate option applicable to the requested Revolving Loans shall
be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
<PAGE> 168
4. The representations and warranties made by the Credit Parties in the
Credit Documents are true and correct in all material respects at and as
if made on the date hereof except to the extent they expressly relate to
an earlier date.
5. As of the date hereof, no Default or Event of Default has occurred and is
continuing either prior to or after giving effect to the Revolving Loans
requested by this Notice of Borrowing.
6. Since December 31, 1999, there has been no development or event relating
to or affecting a Credit Party or any of its Subsidiaries that has had or
could be reasonably expected to have a Material Adverse Effect.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
<PAGE> 169
Exhibit 2.1(e)
to
Credit Agreement
FORM OF
REVOLVING NOTE
Lender: ___________________ ______________, 2000
FOR VALUE RECEIVED, United States Can Company, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of the Lender set forth above
(the "Lender"), at the office of Bank of America, N.A. (the "Administrative
Agent") as set forth in that certain Credit Agreement dated as of October 4,
2000 among the Borrower, the Foreign Subsidiary Borrowers party thereto, U.S.
Can Corporation, a Delaware corporation, and each of the Domestic Subsidiaries
of U.S. Can Corporation, as Domestic Guarantors, the Lenders party thereto
(including the Lender), the Administrative Agent, CitiCorp North America, Inc.,
as Syndication Agent and Bank One, NA (Main Office Chicago), as Documentation
Agent (as amended, modified, extended, supplemented or restated from time to
time, the "Credit Agreement"), the aggregate unpaid principal amount of the
Revolving Loans made by the Lender to the Borrower under the Credit Agreement,
in lawful money of the United States of America and in immediately available
funds, on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount of each such
Revolving Loan, at such office, in like money and funds, for the period
commencing on the date of such Revolving Loan until such Revolving Loan shall be
paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement and evidences Revolving Loans made by the Lender thereunder.
Capitalized terms used in this Revolving Note and not otherwise defined shall
have the respective meanings assigned to them in the Credit Agreement and the
terms and conditions of the Credit Agreement are expressly incorporated herein
and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Revolving Loans evidenced by this Revolving Note upon the occurrence of certain
events (and for payment of collection costs in connection therewith) and for
prepayments of Revolving Loans upon the terms and conditions specified therein.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorney fees.
The date, amount, type, interest rate and duration of the Interest Period
(if applicable) of each Revolving Loan made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the
Lender on its books; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Credit Agreement or under
this Revolving Note in respect of the Revolving Loans to be evidenced by this
Revolving Note, and each such recordation or endorsement shall be prima facie
evidence of such information.
<PAGE> 170
This Revolving Note and the Revolving Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose as provided in Section 11.3(c) of the
Credit Agreement.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has duly executed this Revolving Note as
of the date first above written.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
----------------------------------
Name:
--------------------------------
Title:
---------------------------------
<PAGE> 171
Exhibit 2.3(d)
to
Credit Agreement
FORM OF
TRANCHE A TERM NOTE
Lender: ___________________ _____________, 2000
FOR VALUE RECEIVED, United States Can Company, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of the Lender set forth above
(the "Lender") and its registered assigns, at the office of Bank of America,
N.A. (the "Administrative Agent") as set forth in that certain Credit Agreement
dated as of October 4, 2000 among the Borrower, the Foreign Subsidiary Borrowers
party thereto, U.S. Can Corporation, a Delaware corporation, and each of the
Domestic Subsidiaries of U.S. Can Corporation, as Domestic Guarantors, the
Lenders party thereto (including the Lender), the Administrative Agent, CitiCorp
North America, Inc., as Syndication Agent and Bank One, NA (Main Office
Chicago), as Documentation Agent (as amended, modified, extended, supplemented
or restated from time to time, the "Credit Agreement"), the aggregate unpaid
principal amount of the Tranche A Term Loan made by the Lender to the Borrower
under the Credit Agreement, in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of such Tranche A Term Loan, at such office, in like money and funds, for
the period commencing on the date of such Tranche A Term Loan until such Tranche
A Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
This Note is one of the Tranche A Term Notes referred to in the Credit
Agreement and evidences the Tranche A Term Loan made by the Lender thereunder.
Capitalized terms used in this Tranche A Term Note and not otherwise defined
shall have the respective meanings assigned to them in the Credit Agreement and
the terms and conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Tranche A Term Loan evidenced by this Tranche A Term Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of such Tranche A Term Loan upon the terms and conditions
specified therein. In the event this Tranche A Term Note is not paid when due at
any stated or accelerated maturity, the Borrower agrees to pay, in addition to
the principal and interest, all costs of collection, including reasonable
attorney fees.
The date, amount, type, interest rate and duration of the Interest Period
(if applicable) of the Tranche A Term Loan made by the Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by
the Lender on its books; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrower
to make a payment when due of any amount owing under the Credit Agreement or
under this Tranche A Term Note in respect of the Tranche A Term Loan to be
evidenced by this Tranche A Term Note, and each such recordation or endorsement
shall be prima facie evidence of such information.
<PAGE> 172
This Tranche A Term Note and the Tranche A Term Loan evidenced hereby may
be transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose as provided in Section 11.3(c) of the
Credit Agreement.
THIS TRANCHE A TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has duly executed this Tranche A Term
Note as of the date first above written.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
<PAGE> 173
Exhibit 2.4(d)
to
Credit Agreement
FORM OF
TRANCHE B TERM NOTE
Lender: ___________________ _____________, 2000
FOR VALUE RECEIVED, United States Can Company, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of the Lender set forth above
(the "Lender") and its registered assigns, at the office of Bank of America,
N.A. (the "Administrative Agent") as set forth in that certain Credit Agreement
dated as of October 4, 2000 among the Borrower, the Foreign Subsidiary Borrowers
party thereto, U.S. Can Corporation, a Delaware corporation, and each of the
Domestic Subsidiaries of U.S. Can Corporation, as Domestic Guarantors, the
Lenders party thereto (including the Lender), the Administrative Agent, CitiCorp
North America, Inc., as Syndication Agent and Bank One, NA (Main Office
Chicago), as Documentation Agent (as amended, modified, extended, supplemented
or restated from time to time, the "Credit Agreement"), the aggregate unpaid
principal amount of the Tranche B Term Loan made by the Lender to the Borrower
under the Credit Agreement, in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of such Tranche B Term Loan, at such office, in like money and funds, for
the period commencing on the date of such Tranche B Term Loan until such Tranche
B Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
This Note is one of the Tranche B Term Notes referred to in the Credit
Agreement and evidences the Tranche B Term Loan made by the Lender thereunder.
Capitalized terms used in this Tranche B Term Note and not otherwise defined
shall have the respective meanings assigned to them in the Credit Agreement and
the terms and conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Tranche B Term Loan evidenced by this Tranche B Term Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of such Tranche B Term Loan upon the terms and conditions
specified therein. In the event this Tranche B Term Note is not paid when due at
any stated or accelerated maturity, the Borrower agrees to pay, in addition to
the principal and interest, all costs of collection, including reasonable
attorney fees.
The date, amount, type, interest rate and duration of the Interest Period
(if applicable) of the Tranche B Term Loan made by the Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by
the Lender on its books; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrower
to make a payment when due of any amount owing under the Credit Agreement or
under this Tranche B Term Note in respect of the Tranche B Term Loan to be
evidenced by this Tranche B Term Note, and each such recordation or endorsement
shall be prima facie evidence of such information.
<PAGE> 174
This Tranche B Term Note and the Tranche B Term Loan evidenced hereby may
be transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose as provided in Section 11.3(c) of the
Credit Agreement.
THIS TRANCHE B TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has duly executed this Tranche B Term
Note as of the date first above written.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
----------------------------------
Name:
---------------------------------
Title:
----------------------------------
<PAGE> 175
Exhibit 2.5(b)
to
Credit Agreement
FORM OF SWING LINE LOAN REQUEST
TO: BANK OF AMERICA, N.A., as Administrative Agent
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
RE: Credit Agreement dated as of October 4, 2000 among United States Can
Company (the "Borrower"), the Foreign Subsidiary Borrowers party
thereto, U.S. Can Corporation and each of the Domestic Subsidiaries of
U.S. Can Corporation, as Domestic Guarantors, Bank of America, N.A.,
as Administrative Agent, CitiCorp North America, Inc., as Syndication
Agent, Bank One, NA (Main Office Chicago), as Documentation Agent, and
the Lenders party thereto (as the same may be amended, modified,
extended, supplemented or restated from time to time, the "Credit
Agreement")
DATE: _____________, ____
1. This Swing Line Loan Request is made pursuant to the terms of the Credit
Agreement. All capitalized terms used herein unless otherwise defined
shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Swing Line Loan on the
terms set forth below:
(A) Date of requested Swing Line
Loan ____________________
(B) Principal amount of requested
Swing Line Loan ____________________
3. Subsequent to the funding of the requested Swing Line Loan, (a) the
aggregate principal amount of Swing Line Loans outstanding plus Revolving
Loans outstanding plus LOC Obligations outstanding plus the U.S. Dollar
Equivalent of Foreign Currency Loans outstanding will be $______________,
which is less than or equal to the Revolving Committed Amount and (b) the
aggregate principal amount of Swing Line Loans outstanding will be
$______________, which is less than or equal to the Swing Line Committed
Amount.
<PAGE> 176
4. The representations and warranties made by the Credit Parties in the
Credit Documents are true and correct in all material respects at and as
if made on the date hereof except to the extent they expressly relate to
an earlier date.
5. As of the date hereof, no Default or Event of Default has occurred and is
continuing either prior to or after giving effect to the Swing Line Loans
requested by this Swing Line Loan Request.
6. Since December 31, 1999, there has been no development or event relating
to or affecting a Credit Party or any of its Subsidiaries that has had or
could be reasonably expected to have a Material Adverse Effect.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
----------------------------------
Name:
---------------------------------
Title:
----------------------------------
<PAGE> 177
Exhibit 2.5(d)
to
Credit Agreement
FORM OF
SWING LINE LOAN NOTE
__________, 2000
FOR VALUE RECEIVED, United States Can Company, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of Bank of America, N.A. (the
"Swing Line Lender") and its registered assigns, at the office of Bank of
America, N.A. (the "Administrative Agent") as set forth in that certain Credit
Agreement dated as of October 4, 2000 among the Borrower, the Foreign Subsidiary
Borrowers party thereto, U.S. Can Corporation, a Delaware corporation, and each
of the Domestic Subsidiaries of U.S. Can Corporation, as Domestic Guarantors,
the Lenders party thereto (including the Swing Line Lender), the Administrative
Agent, CitiCorp North America, Inc., as Syndication Agent and Bank One, NA (Main
Office Chicago), as Documentation Agent (as, amended, modified, extended,
supplemented or restated from time to time, the "Credit Agreement"), the
aggregate unpaid principal amount of the Swing Line Loans made by the Swing Line
Lender to the Borrower under the Credit Agreement, in lawful money of the United
States of America and in immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Swing Line Loan, at such office, in like
money and funds, for the period commencing on the date of such Swing Line Loan
until such Swing Line Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
This Note is the Swing Line Loan Note referred to in the Credit Agreement
and evidences the Swing Line Loans made by the Swing Line Lender thereunder.
Capitalized terms used in this Swing Line Loan Note and not otherwise defined
shall have the respective meanings assigned to them in the Credit Agreement and
the terms and conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the maturity of the
Swing Line Loans evidenced by this Swing Line Loan Note upon the occurrence of
certain events (and for payment of collection costs in connection therewith) and
for prepayments of such Swing Line Loans upon the terms and conditions specified
therein. In the event this Swing Line Loan Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorney
fees.
The date, amount, type and interest rate of the Swing Line Loans made by
the Swing Line Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Swing Line Lender on its books;
provided that the failure of the Swing Line Lender to make any such recordation
or endorsement shall not affect the obligations of the Borrower to make a
payment when due of any amount owing under the Credit Agreement or under this
Swing Line Loan Note in respect of the Swing Line Loans to be evidenced by this
<PAGE> 178
Swing Line Loan Note, and each such recordation or endorsement shall be prima
facie evidence of such information.
This Swing Line Loan Note and the Swing Line Loans evidenced hereby may be
transferred in whole or in part only by registration of such transfer on the
Register maintained for such purpose as provided in Section 11.3(c) of the
Credit Agreement.
THIS SWING LINE LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has duly executed this Swing Line Loan
Note as of the date first above written.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
<PAGE> 179
Exhibit 2.6(b)
to
Credit Agreement
FORM OF FOREIGN CURRENCY NOTICE OF BORROWING
--------------------------------------------
TO: BANK OF AMERICA, N.A., as Administrative Agent 101 North Tryon Street
NC1-001-15-04 Charlotte, North Carolina 28255
RE: Credit Agreement dated as of October 4, 2000 among United States Can
Company (the "Borrower"), the Foreign Subsidiary Borrowers party
thereto, U.S. Can Corporation and each of the Domestic Subsidiaries of
U.S. Can Corporation, as Domestic Guarantors, Bank of America, N.A.,
as Administrative Agent, CitiCorp North America, Inc., as Syndication
Agent, Bank One, NA (Main Office Chicago), as Documentation Agent, and
the Lenders party thereto (as the same may be amended, modified,
extended, supplemented or restated from time to time, the "Credit
Agreement")
DATE: _____________,____
-----------------------------------------------------------------
1. This Foreign Currency Notice of Borrowing is made pursuant to the terms of
the Credit Agreement. All capitalized terms used herein unless otherwise
defined shall have the meanings set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting a Foreign Currency Loan
on the terms set forth below:
(A) Date of requested Foreign
Currency Loan ____________________
(B) Borrower or Foreign Subsidiary
Borrower receiving Foreign
Currency Loan ____________________
(C) Principal amount of requested
Foreign Currency Loan ____________________
(D) Foreign Currency requested ____________________
<PAGE> 180
(E) Account of the Borrower or
Foreign Subsidiary Borrower
in which Foreign Currency Loan
shall be funded
Bank Number ____________________
Account Number ____________________
Account Name ____________________
3. Subsequent to the funding of the requested Foreign Currency Loans, (a) the
sum of the U.S. Dollar Equivalent of Foreign Currency Loans outstanding
plus Revolving Loans outstanding plus LOC Obligations outstanding plus
Swing Line Loans outstanding will be $______________, which is less than
or equal to the Revolving Committed Amount, (b) the sum of the U.S. Dollar
Equivalent of Foreign Currency Loans outstanding will be $______________,
which is less than or equal to the Foreign Currency Committed Amount and
(c) the U.S. Dollar Equivalent of the aggregate amount of Foreign Currency
Loans outstanding to the requesting Foreign Subsidiary Borrower (or to the
Borrower) shall not exceed the sublimits set forth in Section 2.6(a).
4. The interest rate option applicable to the requested Foreign Currency
Loans shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
5. The representations and warranties made by the Credit Parties in the
Credit Documents are true and correct in all material respects at and as
if made on the date hereof except to the extent they expressly relate to
an earlier date.
6. As of the date hereof, no Default or Event of Default has occurred and is
continuing either prior to or after giving effect to the Foreign Currency
Loans requested by this Foreign Currency Notice of Borrowing.
7. Since December 31, 1999, there has been no development or event relating
to or affecting a Credit Party or any of its Subsidiaries that has had or
could be reasonably expected to have a Material Adverse Effect.
UNITED STATES CAN COMPANY,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE> 181
Exhibit 2.6(f)
to
Credit Agreement
FORM OF FOREIGN JOINDER AGREEMENT
THIS FOREIGN JOINDER AGREEMENT (this "Agreement"), dated as of
_____________, __________, is entered into between _____________________, a
___________________ (the "New Foreign Subsidiary Borrower") and BANK OF AMERICA,
N.A., in its capacity as Administrative Agent (the "Administrative Agent") under
that certain Credit Agreement, dated as of October 4, 2000 among United States
Can Company (the "Borrower"), U.S. Can Corporation and each of the Domestic
Subsidiaries of U.S. Can Corporation, as Domestic Guarantors, the Lenders party
thereto, the Administrative Agent, CitiCorp North America, Inc., as Syndication
Agent and Bank One, NA (Main Office Chicago), as Documentation Agent (as the
same may be amended, modified, extended, supplemented or restated from time to
time, the "Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement.
The New Foreign Subsidiary Borrower and the Administrative Agent, for the
benefit of the Lenders, hereby agree as follows:
1. The New Foreign Subsidiary Borrower hereby acknowledges, agrees and
confirms that, by its execution of this Agreement, the New Foreign Subsidiary
Borrower will be deemed to be a "Foreign Credit Party", a "Credit Party" and a
"Foreign Subsidiary Borrower" for all purposes of the Credit Agreement and shall
have all of the obligations of a Foreign Credit Party, Credit Party and Foreign
Subsidiary Borrower thereunder as if it had executed the Credit Agreement. The
New Foreign Subsidiary Borrower hereby ratifies, as of the date hereof (except
for representations and warranties that expressly relate to an earlier date),
and agrees to be bound by, all of the terms, provisions and conditions contained
in the Credit Agreement, including without limitation (a) all of the
representations and warranties of the Credit Parties set forth in Section 6 of
the Credit Agreement, (b) all of the affirmative and negative covenants set
forth in Sections 7 and 8 of the Credit Agreement and (c) the designation of
United States Can Company is its Service of Process Agent pursuant to Section
11.11(c) of the Credit Agreement.
2. If required, the New Foreign Subsidiary Borrower is, simultaneously with
the execution of this Agreement, executing, or causing to be executed, and
delivering such Notes, Foreign Guaranty Agreements, Collateral Documents,
updated Schedules to the Credit Agreement and the other Credit Documents and
such other documents and instruments as requested by the Administrative Agent in
accordance with Section 2.6(f) and 7.13 of the Credit Agreement.
<PAGE> 182
3. The address of the New Foreign Subsidiary Borrower for purposes of
Section 11.1 of the Credit Agreement is as follows:
___________________________
___________________________
___________________________
___________________________
4. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
5. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Foreign Subsidiary Borrower has caused this
Agreement to be duly executed by its authorized officer, and the Administrative
Agent, for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[NEW FOREIGN SUBSIDIARY BORROWER]
By: _______________________________
Name: _____________________________
Title: ____________________________
[add required notarizations and attestations]
Acknowledged and accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _______________________________
Name: _____________________________
Title: ____________________________
<PAGE> 183
Exhibit 2.7
to
Credit Agreement
FORM OF NOTICE OF CONTINUATION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255
RE: Credit Agreement dated as of October 4, 2000 among United States Can
Company (the "Borrower"), the Foreign Subsidiary Borrowers party
thereto, U.S. Can Corporation and each of the Domestic Subsidiaries of
U.S. Can Corporation, as Domestic Guarantors, Bank of America, N.A.,
as Administrative Agent, CitiCorp North America, Inc., as Syndication
Agent, Bank One, NA (Main Office Chicago), as Documentation Agent, and
the Lenders party thereto (as the same may be amended, modified,
extended, supplemented or restated from time to time, the "Credit
Agreement")
DATE: _____________, _____
-----------------------------------------------------------------
1. This Notice of Continuation/Conversion is made pursuant to the terms of the
Credit Agreement. All capitalized terms used herein unless otherwise
defined shall have the meanings set forth in the Credit Agreement.
2. Please be advised that:
______ (a) the Borrower is requesting that a portion of the current
outstanding Revolving Loans in the amount of $__________
currently accruing interest at _________ be extended or
converted as of _____________ at the interest rate option
set forth in paragraph 3 below.
______ (b) the Borrower is requesting that a portion of the outstanding
Tranche A Term Loans in the amount of $__________ currently
accruing interest at ________ be extended or converted as of
____________ at the interest rate option set forth in
paragraph 3 below.
<PAGE> 184
______ (c) the Borrower is requesting that a portion of the outstanding
Tranche B Term Loans in the amount of $__________ currently
accruing interest at ________ be extended or converted as of
____________ at the interest rate option set forth in
paragraph 3 below.
______ (d) the Borrower is requesting that a portion of the outstanding
Foreign Currency Loans made to ________________ in the U.S.
Dollar Equivalent of $__________ currently accruing interest
at ________ in the following Foreign Currency: ____________
be extended or converted as of ____________ at the interest
rate option set forth in paragraph 3 below.
3. The interest rate option applicable to the extension or conversion of all
or part of the existing Revolving Loans, Tranche A Term Loans, Tranche B
Term Loans or Foreign Currency Loans (as set forth above) shall be:
a. ________ the Adjusted Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest Period of:
________ one month
________ two months
________ three months
________ six months
4. As of the date hereof, no Default or Event of Default has occurred and is
continuing.
UNITED STATES CAN COMPANY,
a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
<PAGE> 185
Exhibit 7.1(d)
to
Credit Agreement
FORM OF OFFICER'S CERTIFICATE
For the fiscal quarter/year ended _________________, ______.
I, ______________________, chief financial officer of United States Can
Company (the "Borrower") hereby certify that, with respect to that certain
Credit Agreement dated as of October 4, 2000 (as it may be amended, modified,
extended, supplemented or restated from time to time, the "Credit Agreement";
all of the defined terms in the Credit Agreement are incorporated herein by
reference) among the Borrower, the Foreign Subsidiary Borrowers party thereto,
U.S. Can Corporation, a Delaware corporation, and each of the Domestic
Subsidiaries of U.S. Can Corporation, as Domestic Guarantors, the Lenders party
thereto, Bank of America, N.A., as Administrative Agent, CitiCorp North America,
Inc., as Syndication Agent and Bank One, NA (Main Office Chicago), as
Documentation Agent:
a. Attached hereto as Schedule 1 are calculations demonstrating (i)
compliance by the Credit Parties with the financial covenants contained in
Section 7.11 of the Credit Agreement and (ii) the Senior Leverage Ratio, in
each case as of the end of the fiscal period referred to above.
b. The Pricing Level for purposes of the definition of Applicable
Percentage is __________.
c. The Debt Rating of the Borrower by S&P is ______ and by Moody's is
________.
d. No Default or Event of Default has occurred and is existing under
the Credit Agreement(1).
e. The [annual][quarterly] financial statements which accompany this
certificate fairly present in all material respects the financial condition
of the Credit Parties and their Subsidiaries and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments.
----------------------
(1) If a Default or Event of Default shall have occurred an explanation of such
Default or Event of Default shall be provided on a separate page together with
an explanation of the action taken or proposed to be taken by the Credit Parties
with respect thereto.
<PAGE> 186
This certificate is executed as of ___________, 200__.
UNITED STATES CAN COMPANY,
a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
<PAGE> 187
SCHEDULE 1 TO OFFICER'S CERTIFICATE
1. Leverage Ratio
(a) Funded Debt $
------------
(b) EBITDA (see Rider A attached hereto) $
------------
(c) Leverage Ratio [(a)/(b)] :1.0
------------
2. Interest Coverage Ratio
(a) EBITDA (See Rider A attached hereto) $
------------
(b) Interest Expense $
------------
(c) Interest Coverage Ratio [(a)/(b)] $ :1.0
------------
3. Fixed Charge Coverage Ratio
(a) EBITDA (See Rider A attached hereto) $
------------
(b) Capital Expenditures $
------------
(c) Cash Taxes $
------------
(d) [(a)-(b)-(c)] $
------------
(e) Interest Expense $
------------
(f) Scheduled Funded Debt Payments $
------------
(g) [(e)+(f)] $
------------
(h) Fixed Charge Coverage Ratio [(d)/(g)] :1.0
------------
4. Minimum EBITDA
(a) EBITDA (See Rider A attached hereto) $
------------
<PAGE> 188
5. Senior Leverage Ratio
(a) Funded Debt $
------------
(b) Subordinated Debt $
------------
(c) EBITDA (See Rider A attached hereto) $
------------
(d) Senior Leverage Ratio [(a)-(b)/(c)] $
------------
<PAGE> 189
RIDER A TO OFFICER'S CERTIFICATE
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
Twelve
Months Quarter Quarter Quarter Quarter
EBITDA Ended Ended Ended Ended Ended
------
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net Income
------------------------------------------------------------------------------------------------------
- Extraordinary Gains
------------------------------------------------------------------------------------------------------
+ Interest Expense
------------------------------------------------------------------------------------------------------
+ Taxes
------------------------------------------------------------------------------------------------------
+ Restructuring Charges
------------------------------------------------------------------------------------------------------
+ Depreciation
------------------------------------------------------------------------------------------------------
+ Amortization
------------------------------------------------------------------------------------------------------
+ Extraordinary Non-Cash
Losses From Sale of
Property
------------------------------------------------------------------------------------------------------
+ Cash Restructuring
Proceeds (as limited by
the Credit Agreement)
------------------------------------------------------------------------------------------------------
- Cash Restructuring
Expenditures
------------------------------------------------------------------------------------------------------
+Pro Forma EBITDA
Adjustments, if
applicable
------------------------------------------------------------------------------------------------------
= EBITDA
------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 190
Exhibit 7.13(a)
to
Credit Agreement
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement"), dated as of _____________,
______, is entered into between _____________________, a ___________________
(the "New Subsidiary") and BANK OF AMERICA, N.A., in its capacity as
Administrative Agent (the "Administrative Agent") under that certain Credit
Agreement, dated as of October 4, 2000 among United States Can Company (the
"Borrower"), U.S. Can Corporation and each of the Domestic Subsidiaries of U.S.
Can Corporation, as Domestic Guarantors, the Lenders party thereto, the
Administrative Agent, CitiCorp North America, Inc., as Syndication Agent and
Bank One, NA (Main Office Chicago), as Documentation Agent (as the same may be
amended, modified, extended, supplemented or restated from time to time, the
"Credit Agreement"). All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement.
The New Subsidiary and the Administrative Agent, for the benefit of the
Lenders, hereby agree as follows:
1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the New Subsidiary will be deemed to be a "Domestic
Credit Party", "Credit Party" and a "Guarantor" for all purposes of the Credit
Agreement and shall have all of the obligations of a Guarantor thereunder as if
it had executed the Credit Agreement. The New Subsidiary hereby ratifies, as of
the date hereof (except for representations and warranties that expressly relate
to an earlier date), and agrees to be bound by, all of the terms, provisions and
conditions contained in the Credit Agreement, including without limitation (a)
all of the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement, (b) all of the affirmative and negative
covenants set forth in Sections 7 and 8 of the Credit Agreement and (c) all of
the guaranty obligations set forth in Section 4 of the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the New
Subsidiary, subject to the limitations set forth in Section 4.7 of the Credit
Agreement, hereby guarantees, jointly and severally with the other Guarantors,
to the Agents and the Lenders, as provided in Section 4 of the Credit Agreement,
the prompt payment and performance of the Credit Party Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise) strictly in accordance with the terms thereof. Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby
(i) acknowledges, agrees and confirms that, by its execution of this Agreement,
the New Subsidiary will be deemed a party to the Security Agreement as an
"Obligor" and a party to the Pledge Agreement as a "Pledgor", (ii) acknowledges
and agrees that its obligations under the Credit Agreement and the other Credit
Documents are secured in accordance with the terms of the Security Agreement,
the Pledge Agreement and the other Collateral Documents and that the Agents and
the Lenders may exercise their remedies thereunder in accordance with the terms
thereof, (iii) grants to the Collateral Agent, for the benefit of the Lenders, a
continuing security interest in, and a right to set off against, any and all
right, title and interest of the New Subsidiary in and to the Collateral (as
defined in the Security Agreement) and (iv) pledges and grants to the Collateral
Agent, for the benefit of the Lenders, a security interest in the Pledged
Capital Stock (as defined in the Pledge
<PAGE> 191
Agreement) identified on Schedule A attached hereto and all of its Pledged
Collateral (as defined in the Pledge Agreement). The New Subsidiary hereby
represents and warrants to the Administrative Agent and the Lenders that (A) set
forth on Schedule B attached hereto is a complete and accurate list of all
Subsidiaries of the New Subsidiary, (B) set forth on Schedule C attached hereto
is a list of all registered Intellectual Property and all other material
Intellectual Property owned by the New Subsidiary or that the New Subsidiary has
a right to use, (C) set forth on Schedule D attached hereto is (I) a list of all
Real Properties of the New Subsidiary, (II) all locations where any personal
property of the New Subsidiary is located and (III) the chief executive office
and principal place of business of the New Subsidiary and (D) set forth on
Schedule E attached hereto are any tradenames of the New Subsidiary. Each of
Schedules 6.15, 6.19, 6.27(a), 6.27(b) and 6.27(c) of the Credit Agreement and
Schedule 4(c) of the Security Agreement are hereby deemed amended to include the
information on Schedule B through Schedule E attached hereto, as applicable.
2. If required, the New Subsidiary is, simultaneously with the execution of
this Agreement, executing and delivering such Collateral Documents (and such
other documents and instruments) as requested by the Administrative Agent in
accordance with Section 7.13 of the Credit Agreement.
3. The address of the New Subsidiary for purposes of Section 11.1 of the
Credit Agreement is the same address as the Borrower.
4. The New Subsidiary hereby waives acceptance by the Agents and the
Lenders of the guaranty by the New Subsidiary under the Credit Agreement upon
the execution of this Agreement by the New Subsidiary.
5. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument.
6. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By: ___________________________
Name: _________________________
Title: ________________________
Acknowledged and accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
<PAGE> 192
By: ___________________________
Name: _________________________
Title: ________________________
<PAGE> 193
Exhibit 11.3(b)
to
Credit Agreement
FORM OF
ASSIGNMENT AGREEMENT
Reference is made to that certain Credit Agreement dated as of October 4,
2000 (as the same may be amended, modified, extended, supplemented or restated
from time to time, the "Credit Agreement") among United States Can Company (the
"Borrower"), U.S. Can Corporation and each of the Domestic Subsidiaries of U.S.
Can Corporation, as Domestic Guarantors, the Lenders identified therein, Bank of
America, N.A., as Administrative Agent, CitiCorp North America, Inc., as
Syndication Agent and Bank One, NA (Main Office Chicago), as Documentation
Agent. All capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Credit Agreement.
1. The Assignor (as defined below) hereby sells and assigns, without
recourse and without representation or warranty except as expressly set forth
herein, to the Assignee (as defined below), and the Assignee hereby purchases
and assumes, without recourse, from the Assignor, effective as of effective date
of the assignment as designated below (the "Effective Date"), the interests set
forth below (the "Assigned Interest") in the Assignor's rights and obligations
under the Credit Agreement, including, without limitation, (a) the interests set
forth below in the Revolving Loan Commitment Percentage, the Tranche A Term Loan
Commitment Percentage of the Assignor and the Tranche B Term Loan Commitment
Percentage of the Assignor on the Effective Date, (b) the Loans owing to the
Assignor in connection with the Assigned Interest which are outstanding on the
Effective Date, (c) the Assignor's Participation Interests in all Letters of
Credit as of the Effective Date and the rights and obligations appurtenant
thereto under the LOC Documents, and (d) the Assignor's Participation Interests
in any Swing Line Loan or Foreign Currency Loan as of the Effective Date and the
rights and obligations appurtenant thereto. Periodic payments made with respect
to the Assigned Interest which (i) accrued prior to the Effective Date shall be
remitted to the Assignor and (ii) accrue from and after the Effective Date shall
be remitted to the Assignee. From and after the Effective Date, the Assignee, if
it is not already a Lender under the Credit Agreement, shall become a "Lender"
for all purposes of the Credit Agreement and the other Credit Documents and, to
the extent of such assignment, the assigning Lender shall be relieved of its
obligations under the Credit Agreement.
2. The Assignor (a) represents and warrants to the Assignee that it is the
holder of the Assigned Interest, and the Loans and Participation Interests
related thereto, and it has not previously transferred or encumbered such
Assigned Interest, Loans or Participation Interests; (b) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; and (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Credit Documents or any other instrument or document furnished
pursuant thereto.
<PAGE> 194
3. The Assignee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Sections 5.1(d) and 7.1 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (b) agrees that it will, independently and
without reliance upon the Agents, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (c) confirms that it is an Eligible Assignee; (d) appoints
and authorizes each of the Agents to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Documents as are
delegated to such Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (e) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (f)
attaches any U.S. Internal Revenue Service or other forms required under Section
3.13 of the Credit Agreement.
4. This Assignment and Acceptance shall be effective only upon (a) the
consent of the Borrower, the Administrative Agent and the Issuing Lender to the
extent required under the definition of Eligible Assignee or under Section
11.3(b) of the Credit Agreement and (b) delivery to the Administrative Agent of
this Assignment and Acceptance together with the transfer fees, if applicable,
set forth in Section 11.3(b) of the Credit Agreement.
5. This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
6. Terms of Assignment
(a) Date of Assignment __________________
(b) Legal Name of Assignor __________________
(c) Legal Name of Assignee __________________
(d) Effective Date of Assignment __________________
(e) Revolving Loan Commitment
Percentage assigned _____________%
(f) Total Revolving Loans
outstanding as of Effective Date $______________
(g) Principal amount of Revolving
Loans assigned on Effective
Date (the amount set forth
in (f) multiplied by the
percentage set forth in (e)) $______________
(h) Revolving Committed Amount $______________
<PAGE> 195
(i) Principal amount of Revolving
Committed Amount assigned on
the Effective Date (the amount
set forth in (h) multiplied by
the percentage set forth in (e)) $______________
(j) Tranche A Term Loan Commitment
Percentage assigned _____________%
(k) Total Tranche A Term Loans
outstanding as of Effective Date $______________
(l) Principal amount of Tranche A
Term Loans assigned on Effective
Date (the amount set forth
in (k) multiplied by the
percentage set forth in (j)) $______________
(m) Tranche A Term Loan Committed
Amount $______________
(n) Principal amount of Tranche A Term
Loan Committed Amount assigned on
the Effective Date (the amount set forth in
(m) multiplied by the percentage set
forth in (j)) $______________
(o) Tranche B Term Loan Commitment
Percentage assigned _____________%
(p) Total Tranche B Term Loans
outstanding as of Effective Date $______________
(q) Principal amount of Tranche B
Term Loans assigned on Effective
Date (the amount set forth
in (p) multiplied by the
percentage set forth in (o)) $______________
(r) Tranche B Term Loan Committed
Amount $______________
<PAGE> 196
(s) Principal Amount of Tranche B Term
Loan Committed Amount Assigned on the
Effective Date (the amount set forth in (r)
multiplied by the percentage set forth in (o)) $______________
(t) Total Swing Line Loans outstanding as of
Effective Date $______________
(u) Participation Interest in outstanding Swing
Line Loans assigned on Effective Date
(the amount set forth in (t) multiplied by the
percentage set forth in (e)) $______________
(v) Total U.S. Dollar Equivalent of Foreign
Currency Loans outstanding as of Effective Date $______________
(w) Participation Interests in outstanding Foreign
Currency Loans (the amount set forth in (v)
multiplied by the percentage set forth in (e)) $______________
7. After giving effect to the foregoing assignment, the Assignor and the
Assignee shall have the following Commitments, Commitment Percentages,
outstanding Loans and Participation Interests:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
Commitment
with respect to Revolving Tranche A
Revolving Loan Term Loan
Committed Commitment Revolving Commitment Tranche A
Amount Percentage Loans Percentage Term Loans
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Assignor
--------------------------------------------------------------------------------------------------------------
Assignee
--------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------------
U.S. Dollar
Equivalent of
Tranche B Participation Participation
Term Loan Tranche B Interest in Interest in
Commitment Term Swing Line Foreign
Percentage Loans Loans Currency Loans
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Assignor
--------------------------------------------------------------------------------------------------------------
Assignee
--------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 197
The terms set forth above
are hereby agreed to:
_______________________, as Assignor
By: _____________________________
Name: ___________________________
Title: __________________________
____________________, as Assignee
By: _____________________________
Name: ___________________________
Title: __________________________
CONSENTED TO (if applicable):
UNITED STATES CAN COMPANY,
a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By: ___________________________
Name: _________________________
Title: ________________________
BANK OF AMERICA, N.A., as
Issuing Lender
By: ___________________________
Name: _________________________
Title: ________________________
