<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _____ TO _____
COMMISSION FILE NUMBER: 333-4520
RACI HOLDING, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0350929
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
870 REMINGTON DRIVE
P.O. BOX 700
MADISON, NORTH CAROLINA 27025-0700
(Address of principal executive offices)
(Zip Code)
(336) 548-8700
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
<TABLE>
<S> <C>
Class A Common Stock, par value $.01 per share, outstanding at May 12, 2000 763,050 shares
Class B Common Stock, par value $.01 per share, outstanding at May 12, 2000 0 shares
</TABLE>
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RACI HOLDING, INC. AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(Dollars in Millions, Except Per Share Data)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets
Cash and Cash Equivalents $ 0.6 $ 26.3
Accounts Receivable Trade - net 116.6 56.6
Inventories 80.3 70.8
Supplies 10.5 10.6
Prepaid Expenses and Other Current Assets 6.9 7.8
Deferred Income Taxes 10.0 9.1
-------- --------
Total Current Assets 224.9 181.2
Property, Plant and Equipment - net 85.8 87.8
Intangibles and Debt Issuance Costs - net 83.5 84.5
Deferred Income Taxes 4.3 4.3
Other Noncurrent Assets 1.0 1.0
-------- --------
TOTAL ASSETS $ 399.5 $ 358.8
======== ========
LIABILITIES, REDEEMABLE SHARES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts Payable $ 26.7 $ 23.7
Book Overdraft 6.8 6.4
Short-Term Debt 1.0 1.0
Current Portion of Long-Term Debt 20.2 29.2
Product and Environmental Liabilities 2.8 2.6
Income Taxes 4.7 0.4
Other Accrued Liabilities 34.4 26.8
-------- --------
Total Current Liabilities 96.6 90.1
Long-Term Debt 121.3 89.3
Retiree Benefits 33.6 36.9
Product and Environmental Liabilities 9.7 9.9
-------- --------
Total Liabilities 261.2 226.2
Redeemable Deferred Shares of Class A Common Stock, par
value $.01; 25,718 and 25,869 issued at March 31, 2000
and December 31, 2000, respectively 5.3 5.4
Redeemable Shares of Class A Common Stock, par
value $.01; 5,082 issued at March 31, 2000 respectively
and December 31, 2000, respectively 1.0 1.0
Commitments and Contingencies
Shareholders' Equity
Class A Common Stock, par value $.01; 1,250,000 shares
authorized, 763,050 issued and outstanding
at March 31, 2000 and December 31, 1999, respectively -- --
Class B Common Stock, par value $.01; 1,250,000 shares
authorized, none issued and outstanding -- --
Paid in Capital 76.6 76.6
Due from Shareholders (0.5) (0.5)
Accumulated Other Comprehensive Loss (0.4) (0.4)
Retained Earnings 56.3 50.5
-------- --------
Total Shareholders' Equity 132.0 126.2
-------- --------
Total Liabilities, Redeemable Shares and Shareholders' Equity $ 399.5 $ 358.8
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
2
<PAGE> 3
RACI HOLDING, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(Dollars in Millions, Except Per Share Data)
<TABLE>
<CAPTION>
------------------------
Unaudited
------------------------
Year-to-Date March 31,
------------------------
2000 1999
-------- --------
<S> <C> <C>
Sales (1) $ 96.6 $ 91.4
Cost of Goods Sold 64.3 60.7
-------- --------
Gross Profit 32.3 30.7
Selling, General and Administrative
Expenses 17.2 16.7
Research and Development Expenses 1.7 1.9
Other Expense 0.7 0.8
Restructuring and Nonrecurring Items -- (0.2)
-------- --------
Operating Profit 12.7 11.5
Interest Expense 2.9 4.0
-------- --------
Profit Before Income Taxes 9.8 7.5
Provision for Income Taxes 4.0 3.0
-------- --------
Net Income $ 5.8 $ 4.5
======== ========
Per Share Data:
Basic Income Per Share $ 7.34 $ 5.92
======== ========
Diluted Income Per Share $ 7.12 $ 5.78
======== ========
</TABLE>
(1) Sales are presented net of Federal Excise Taxes of $8.0 and $7.5 for the
year-to-date periods ended March 31, 2000 and 1999, respectively.
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE> 4
RACI HOLDING, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Dollars in Millions)
<TABLE>
<CAPTION>
-----------------------
Unaudited
-----------------------
Year-To-Date March 31,
-----------------------
2000 1999
-------- --------
<S> <C> <C>
Operating Activities
Net Cash used in Operating Activities $ (47.3) $ (40.6)
-------- --------
Investing Activities
Capital Expenditures (1.4) (1.0)
-------- --------
Net Cash used in Investing Activities (1.4) (1.0)
-------- --------
Financing Activities
Net Borrowings under Revolving Credit Facility 32.5 47.5
Repurchase of Senior Subordinated Notes -- (3.8)
Principal Payments on Long-Term Debt (9.5) (6.2)
Net Borrowings on Short-Term Debt -- 0.2
-------- --------
Net Cash provided by Financing Activities 23.0 37.7
-------- --------
Decrease in Cash and Cash Equivalents (25.7) (3.9)
Cash and Cash Equivalents at Beginning of Period 26.3 4.9
======== ========
Cash and Cash Equivalents at End of Period $ 0.6 $ 1.0
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE> 5
RACI HOLDING, INC. AND SUBSIDIARIES
Condensed Consolidated Statement of Shareholders' Equity
and Comprehensive Income
(Dollars in Millions)
<TABLE>
<CAPTION>
Accumulated
Other Total
Paid-in Due from Comprehensive Retained Shareholders'
Capital Shareholders Loss Earnings Equity
------- ------------ ------------- -------- -------------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1999 $ 77.6 $ (0.5) $ (0.4) $ 50.5 $127.2
------ ------ ------ ------ ------
Net Income -- -- -- 5.8 5.8
------ ------ ------ ------ ------
BALANCE, MARCH 31, 2000 (UNAUDITED) $ 77.6 $ (0.5) $ (0.4) $ 56.3 $133.0
====== ====== ====== ====== ======
</TABLE>
The accompanying notes are an integral part of these condensed
consolidated financial statements.
5
<PAGE> 6
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in millions, except per share data)
NOTE 1 - BASIS OF PRESENTATION
The condensed consolidated financial statements of RACI Holding, Inc.
("Holding") include the accounts of its subsidiary, Remington Arms Company, Inc.
("Remington") and Remington's wholly owned subsidiary, Remington International,
Ltd. (together with Remington and Holding, the "Company"). Holding has no
material assets other than its investment in Remington. All intercompany
accounts and transactions have been eliminated in consolidation.
The accompanying unaudited interim condensed consolidated financial
statements of Holding have been prepared by the Company in accordance with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X, and accordingly,
they do not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of items of a normal recurring
nature) considered necessary for a fair presentation have been included.
Operating results for the three month period ended March 31, 2000 are not
necessarily indicative of the results that may be expected for the year ended
December 31, 2000.
Pursuant to an asset purchase agreement (the "Asset Purchase
Agreement"), on December 1, 1993, the Company acquired certain assets and
assumed certain liabilities (the "Acquisition") of the Sporting Goods Business
formerly operated by E. I. du Pont de Nemours and Company ("DuPont") and one of
DuPont's subsidiaries (together with DuPont, the "Sellers").
These condensed consolidated financial statements should be read in
conjunction with the audited consolidated financial statements of RACI Holding,
Inc. and Subsidiaries as of and for the year ended December 31, 1999.
Certain reclassifications were made to the prior period's financial
information to conform with the current presentation format.
NOTE 2 - INVENTORIES
Inventories consisted of the following at:
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------ ------
(Unaudited)
<S> <C> <C>
Raw Materials $ 15.0 $ 14.9
Semi-Finished Products 18.7 18.9
Finished Product 46.6 37.0
------ ------
Total $ 80.3 $ 70.8
====== ======
</TABLE>
NOTE 3 - LONG-TERM DEBT
Long-term debt consisted of the following at:
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------- ------------
(Unaudited)
<S> <C> <C>
Credit Agreement:
Term Loans $ 18.3 $ 27.3
Revolving Credit Facility 32.5 --
9.5% Senior Subordinated Notes due 2003 86.8 86.7
Capital Lease Obligations 3.7 4.2
Other 0.2 0.3
------ ------
Subtotal $141.5 $118.5
Less: Current Portion 20.2 29.2
------ ------
Total $121.3 $ 89.3
====== ======
</TABLE>
6
<PAGE> 7
On April 28, 2000 the Company entered into an amended and restated
credit agreement with certain lending institutions (the "New Credit Agreement")
that provides for aggregate borrowings of $170.0 million under a revolving
credit facility (the "New Revolving Credit Facility"). All borrowings under the
New Credit Agreement are guaranteed by Holding, and are collateralized by
substantially all of the assets of the Company. The Company may borrow up to
$170.0 (including certain letters of credit) under the Revolving Credit Facility
through September 30, 2003. Financing costs paid in connection with the New
Credit Agreement of $3.3 million were capitalized and will be amortized over the
remaining term of the New Credit Agreement.
Borrowings under the New Credit Agreement generally bear interest, at
the Company's option, at a variable rate equal to either (i) the rate that is
the highest of the administrative agent's prime rate, or certain alternative
rates, in each case plus up to 1.25% per annum, or (ii) the rate at which
certain Eurodollar deposits are offered in the interbank Eurodollar market plus
up to 2.25% per annum. Upon the Company's delivery to the New Credit Agreement's
administrative agent of the Company's quarterly financial statements, the
interest rate on the Company's New Credit Agreement borrowings can be reduced by
up to 0.5% per annum from levels in effect at April 28, 2000 if the Company has
met certain financial ratios, based on earnings before interest, taxes,
depreciation and amortization ("EBITDA") and total indebtedness, for the four
quarters then ended. Once reduced, such interest rate can also be increased up
to 0.5% per annum if the Company no longer meets the financial ratios making it
eligible for interest rate reduction. Commitment fees of 0.5% are payable on the
average daily unused portion of the Revolving Credit Facility. Mandatory
prepayments of borrowings may be required under the New Credit Agreement upon
the occurrence of certain changes in control.
Prior to the amendment and restatement on April 28, 2000, the original
credit agreement (the "Old Credit Agreement") required the Company to make
mandatory prepayments on the Term Loans thereunder annually, in an amount equal
to 50% of the Company's Excess Cash Flow (as defined therein) for the preceding
fiscal year. The Company had Excess Cash Flow of $4.3 for the year ended
December 31, 1999 and accordingly, a prepayment of $2.2 was made on March 31,
2000. In connection with the amendment and restatement, the remaining balance on
the Term Loans of $18.3 million was paid.
NOTE 4 - INCOME PER SHARE
The basic and diluted income per share was determined as follows for the
three months ended March 31:
<TABLE>
<CAPTION>
2000 1999
------- -------
(Unaudited)
<S> <C> <C>
Basic Income Per Share:
Net Income Available to Common Shareholders $ 5.8 $ 4.5
Weighted Average Common Shares 790,166 760,000
Basic Income Per Share $ 7.34 $ 5.92
Diluted Income Per Share:
Net Income Available to Common Shareholders $ 5.8 $ 4.5
Weighted Average Common Shares 790,166 760,000
Effect of Outstanding Options 25,071 18,983
Weighted Average Common Shares and Dilutive Potential
Common Stock 815,237 778,983
Diluted Income Per Share $ 7.12 $ 5.78
Options Outstanding at March 31, 69,653 37,965
</TABLE>
NOTE 5 - REDEEMABLE CLASS A COMMON STOCK
Certain employees and key management of Holding who hold or have the
right to receive (ie: deferred shares) Class A common stock may require Holding
to repurchase, under certain conditions, death, disability or retirement at
normal retirement age all of the shares. This repurchase right terminates upon
the consummation of
7
<PAGE> 8
an initial equity public offering of Holding's Class A common stock. In
connection with the redemption feature described above, Holding has classified
outside of permanent equity an amount representing the initial fair value of the
redeemable shares. These shares have not been marked to market since the events
of redemption are considered remote.
NOTE 6 - DIVIDENDS AND OTHER COMPENSATION
On April 25, 2000, the Company declared a special dividend of $63.933
per share, in an aggregate amount of $49.1 million to all shareholders of record
on that date. The Company also declared a special payment to holders of all
stock options and deferred shares of $63.933 per share, in an aggregate amount
$6.1 million on that date which will be included in the Company's results of
operations for the quarter ended June 30, 2000. The special dividend and special
payment were paid on April 28, 2000 with proceeds from the borrowings under the
New Credit Agreement. All loans due from shareholders were repaid with proceeds
from the special dividend and special payment. An unaudited consolidated
condensed pro-forma table of capitalization is presented below giving effect to
the transaction as of March 31, 2000.
RACI Holding, Inc. and Subsidiaries
Proforma Condensed Consolidated Table of Capitalization
(Dollars in Millions)
<TABLE>
<CAPTION>
Proforma
March 31, 2000 March 31, 2000
-------------- --------------
(Unaudited) (Unaudited)
<S> <C> <C>
Long-Term Debt, including Current Portion $ 141.5 $ 181.2
Redeemable Deferred Shares 5.3 5.3
Redeemable Shares 1.0 1.0
Shareholder's Equity 132.0 79.6
------- -------
Total Capitalization $ 279.8 $ 267.1
======= =======
</TABLE>
NOTE 7 - SEGMENT INFORMATION
Information on Segments:
<TABLE>
<CAPTION>
Three Months Ended
March 31,
-----------------------
2000 1999
------- --------
(Unaudited)
<S> <C> <C>
Net Sales:
Hunting/Shooting Sports $ 82.8 $ 78.7
All Other 13.8 12.7
------- -------
Consolidated Net Sales $ 96.6 $ 91.4
======= =======
EBITDA:
Hunting/Shooting Sports $ 13.6 $ 12.8
All Other 3.2 2.8
------- -------
Consolidated EBITDA $ 16.8 $ 15.6
======= =======
</TABLE>
8
<PAGE> 9
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------- ------------
(Unaudited)
<S> <C> <C>
Assets:
Hunting/Shooting Sports $ 251.8 $ 189.5
All Other 147.7 169.3
-------- --------
Consolidated Assets $ 399.5 $ 358.8
======== ========
Reconciliation of Reportable Segments:
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999
-------- --------
(Unaudited)
<S> <C> <C>
Consolidated EBITDA $ 16.8 $ 15.6
Less: Interest Expense 2.9 4.0
Depreciation and Amortization(1) 4.0 3.8
Other Noncash Charges 0.1 0.5
Nonrecurring and Restructuring Items -- (0.2)
-------- --------
7.0 8.1
-------- --------
Consolidated Profit Before Income Taxes $ 9.8 $ 7.5
======== ========
</TABLE>
(1) Excludes amortization of deferred financing costs of $0.4 and $0.5, in
2000 and 1999, respectively, which was included in interest expense.
9
<PAGE> 10
NOTE 8 - FINANCIAL POSITION AND RESULTS OF OPERATIONS OF HOLDING AND REMINGTON
The following condensed consolidating financial data provides
information regarding the financial position and results of operations of
Holding and its wholly owned subsidiary, Remington, including Remington's wholly
owned subsidiary Remington International, Ltd. Separate financial statements of
Holding are not presented because management has determined that they would not
be material to holders of the Company's public securities, Remington's 9.5%
Senior Subordinated Notes due 2003, Series B (the "Notes"). Further, the Notes
are fully and unconditionally guaranteed by Holding.
RACI HOLDING, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATING BALANCE SHEETS
March 31, 2000
(Unaudited)
<TABLE>
<CAPTION>
RACI
Holding,
Inc. and
Holding Remington Eliminations Subsidiaries
-------- --------- ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
Current Assets $ -- $ 224.9 $ -- $ 224.9
Receivable from Remington 7.4 -- 7.4 --
Receivable from RACI Holding, Inc. -- 0.1 0.1 --
Noncurrent Assets 131.0 174.6 131.0 174.6
-------- -------- -------- --------
Total Assets $ 138.4 $ 399.6 $ 138.5 $ 399.5
======== ======== ======== ========
LIABILITIES AND
SHAREHOLDERS' EQUITY
Current Liabilities $ -- $ 96.6 $ -- $ 96.6
Payable to RACI Holding, Inc. -- 7.4 7.4 --
Payable to Remington 0.1 -- 0.1 --
Noncurrent Liabilities -- 164.6 -- 164.6
Redeemable Shares 6.3 -- -- 6.3
Shareholders' Equity 132.0 131.0 131.0 132.0
-------- -------- -------- --------
Total Liabilities and
Shareholders' Equity $ 138.4 $ 399.6 $ 138.5 $ 399.5
======== ======== ======== ========
</TABLE>
10
<PAGE> 11
RACI HOLDING, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATING BALANCE SHEETS
December 31, 1999
<TABLE>
<CAPTION>
RACI
Holding,
Inc. and
Holding Remington Eliminations Subsidiaries
-------- --------- ------------ ------------
<S> <C> <C> <C> <C>
ASSETS
Current Assets $ -- $ 181.2 $ -- $ 181.2
Receivable from Remington 7.5 -- 7.5 --
Receivable from RACI Holding, Inc. -- 0.1 0.1 --
Noncurrent Assets 125.2 177.6 125.2 177.6
-------- -------- -------- --------
Total Assets $ 132.7 $ 358.9 $ 132.8 $ 358.8
======== ======== ======== ========
LIABILITIES AND
SHAREHOLDERS' EQUITY
Current Liabilities $ -- $ 90.1 $ -- $ 90.1
Payable to Remington 0.1 -- 0.1 --
Payable to RACI Holding, Inc. -- 7.5 7.5 --
Noncurrent Liabilities -- 136.1 -- 136.1
Redeemable Shares 6.4 -- -- 6.4
Shareholders' Equity 126.2 125.2 125.2 126.2
-------- -------- -------- --------
Total Liabilities and
Shareholders' Equity $ 132.7 $ 358.9 $ 132.8 $ 358.8
======== ======== ======== ========
</TABLE>
RACI HOLDING, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATING STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
RACI
Holding,
Inc. and
Holding Remington Eliminations Subsidiaries
-------- --------- ------------ ------------
<S> <C> <C> <C> <C>
QUARTER ENDED
MARCH 31, 2000
Sales $ -- $ 96.6 $ -- $ 96.6
Gross Profit -- 32.3 -- 32.3
Equity in Earnings of Subsidiary 5.8 -- 5.8 --
Net Income 5.8 5.8 5.8 5.8
QUARTER ENDED
MARCH 31, 1999
Sales $ -- $ 91.4 $ -- $ 91.4
Gross Profit -- 30.7 -- 30.7
Equity in Earnings of Subsidiary 4.5 -- 4.5 --
Net Income 4.5 4.5 4.5 4.5
</TABLE>
NOTE 9 - COMMITMENTS AND CONTINGENCIES
The Company is subject to various lawsuits and claims with respect to
product liabilities, governmental regulations and other matters arising in the
normal course of business. Under the Asset Purchase Agreement, the Company
generally bears financial responsibility for all product liability cases and
claims relating to occurrences after the closing of the Acquisition, except for
certain cases and claims relating to certain shotguns, all cases and claims
relating to discontinued products and for limited other costs. Because the
11
<PAGE> 12
Company's assumption of financial responsibility for certain product liability
cases and claims involving pre-Acquisition occurrences was limited to a fixed
amount, with the Sellers retaining liability in excess of such fixed amount and
indemnifying the Company in respect thereof, and because of the Company's
accruals with respect to such cases and claims, the Company believes that
product liability cases and claims involving occurrences arising prior to the
Acquisition are not likely to have a material adverse effect upon the financial
conditions or results of operations of the Company. Moreover, although it is
difficult to forecast the outcome of litigation, the Company does not believe,
in light of relevant circumstances (including the current availability of
insurance for personal injury and property damage with respect to cases and
claims involving occurrences arising after the Acquisition, its accruals for the
uninsured costs of such cases and claims and the Sellers' agreement to be
responsible for a portion of certain post-Acquisition shotgun-related product
liability costs, as well as the type of firearms products made by the Company),
that the outcome of all pending product liability cases and claims will be
likely to have a material adverse effect upon the financial condition or results
of operations of the Company. Nonetheless, in part because of the uncertainty as
to the nature and extent of manufacturer liability for personal injury due to
alleged product defects, there can be no assurance that the Company's resources
will be adequate to cover future product liability occurrences, cases or claims,
in the aggregate, or that such a material adverse effect will not result
therefrom. Because of the nature of its products, the Company anticipates that
it will continue to be involved in product liability litigation in the future.
NOTE 10 - ACCOUNTING STANDARDS NOT YET ADOPTED
During 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 133 requires entities to recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at their fair value. In June 1999, the
FASB issued SFAS No. 137, "Accounting for Derivative Instruments and Hedging
Activities-Deferral of the Effective Date of FASB Statement No. 133-an amendment
of FASB Statement No. 133", that revises SFAS No. 133 to become effective in the
first quarter of fiscal 2001. The Company is evaluating the provisions of SFAS
No. 133, but does not anticipate its adoption to have a material impact on
financial position or results of operation.
12
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction
with the accompanying Unaudited Condensed Consolidated Financial Statements and
related notes of RACI Holding, Inc. ("Holding") and its subsidiary, Remington
Arms Company, Inc. ("Remington") and Remington's wholly owned subsidiary,
Remington International, Ltd. (together with Remington and Holding, the
"Company") as of and for the quarter ended March 31, 2000, and with the
Company's audited consolidated financial statements as of and for the year ended
December 31, 1999, on file with the Securities and Exchange Commission. The
results of operations for the three month period ended March 31, 2000 are not
necessarily indicative of results that may be expected for the year ended
December 31, 2000, in part due to the seasonality of the Company's business.
BUSINESS TRENDS AND INITIATIVES
The markets in which the Company competes are highly competitive.
Product image, quality and innovation are the dominant competitive factors in
firearms products and price is the dominant factor in ammunition products. While
the Company intends to respond to competitive pressures, such responses may
affect quarterly results. The Company believes that the market for firearms and
ammunition is a mature market, which the Company expects will remain flat, at
least in the near term.
Although the Company believes that consumer concerns about regulation
have not had a significant influence on the market for its firearms and
ammunition products for the periods presented herein, there can be no assurance
that the regulation of firearms and ammunition will not become more restrictive
in the future and that any such development would not adversely affect these
markets or the Company. See "-Regulatory Developments" and "Legal Proceedings."
In light of market constraints on sales growth opportunities and the
Company's increased liquidity and working capital needs, the Company continues
to focus on increasing profitability by increasing brand name awareness,
introducing new products and containing costs. Since 1996, the Company has
undertaken a number of cost containment initiatives, strengthened the management
team and invested capital to continue improvement in operating efficiencies at
the manufacturing facilities. The Company's management team continues to focus
on controlling costs and will continue to review all aspects of the Company's
operations with a view towards managing costs in response to competitive
pressures.
RESULTS OF OPERATIONS FOR THE THREE MONTH PERIOD ENDED MARCH 31, 2000 AS
COMPARED TO THE THREE MONTH PERIOD ENDED MARCH 31, 1999
Sales. Consolidated Sales for the quarter ended March 31, 2000
increased $5.2 million or 5.7% from the quarter ended March 31, 1999. Although
there is an increase in sales from year to year, the Company cannot be assured
that this trend will continue due to the relatively mature and highly
competitive market in which the Company operates. The following table compares
sales by segment for each of the periods ended March 31:
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------------------
Percent Percent
2000 of Total 1999 of Total
---------------------------------------
<S> <C> <C> <C> <C>
Net Sales
Hunting/Shooting Sports $82.8 86% $78.7 86%
All Other 13.8 14% 12.7 14%
----- -----
Consolidated Net Sales $96.6 100% $91.4 100%
===== =====
</TABLE>
Hunting/Shooting Sports sales increased $4.1 million or 5.2% in the
first quarter of 2000 as compared to the same period in 1999. Firearm sales of
$48.8 million for the quarter ended March 31, 2000 decreased $1.4 million or
2.8% from the quarter ended March 31, 1999, primarily as a result of lower sales
volumes in all
13
<PAGE> 14
firearms categories partially offset by higher overall pricing of firearms
products. Ammunition sales of $34.0 million for the quarter ended March 31, 2000
increased $5.5 million or 19.3% from the same quarter in 1999, primarily
resulting from higher sales volumes of shotshell and centerfire rifle ammunition
combined with higher overall pricing in ammunition products offset by lower
sales volumes of rimfire ammunition.
Sales of all other products, including fishline, accessories, targets
and powder metal products increased period over period by $1.1 million or 8.7%,
primarily attributable to an increase in sales in fishing and accessory
products. During the first quarter of 2000, sales in fishing and accessory
products increased $1.0 million, or 9.9%, from the first quarter of 1999 as a
result of higher sales volumes attributable to new product introductions of
fishline and gun safes, slightly offset by lower overall pricing in fishline
products.
Cost of Goods Sold. Cost of goods sold for the quarter ended March 31,
2000 increased to $64.3 million, an increase of $3.6 million or 5.9% from the
March 31, 1999 level of $60.7 million. The increase resulted primarily from
higher sales volumes in the ammunition and fishing product lines partially
offset by lower sales volumes in firearms products. Cost of goods sold as a
percentage of sales for the first quarter of 2000 was 66.6% slightly unfavorable
to the same period in 1999 by 0.2%.
Operating Expenses. Operating expenses consist of selling, general and
administrative expenses, research and development expense and other expense.
Operating expenses for the quarter ended March 31, 2000 were $19.6 million, an
increase of $0.4 million, or 2.1%, from $19.2 million for the same period in
1999.
Selling, general and administrative expenses for the first quarter of
2000 were $17.2 million, an increase of $0.5 million, or 3.0% from $16.7 million
for the first quarter of 1999. The increase between the two periods was
primarily attributable to the Company's contributions in 2000 to The Hunting and
Shooting Sports Heritage Fund and higher compensation expense partially offset
by planned decreases in marketing communication expenses.
Restructuring and Nonrecurring Items. During 1999 the Company reduced
the restructuring reserve by $0.2 million to eliminate estimated restructuring
accruals not realized. There were no restructuring or nonrecurring expenses in
2000.
Interest Expense. Interest expense for the quarter ended March 31, 2000
was $2.9 million, a decrease of $1.1 million, or 27.5%, from the same period
ended March 31, 1999. The decrease in interest expense between periods was
principally due to a reduction in average outstanding debt on the Company's
Revolving Credit Facility (the "Revolving Credit Facility") and lower term debt
levels resulting from scheduled debt repayments slightly offset by an increase
in the interest rates on both the term debt and Revolving Credit Facility.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows. Net cash used in operating activities was $47.3 million and
$40.6 million for the three month periods ended March 31, 2000 and 1999,
respectively. The increase in cash used in operating activities compared to the
same period in 1999 resulted primarily from an increase in the change in working
capital components partially offset by improved earnings. Accounts receivable
increased $60.0 million from December 31, 1999 to $116.6 million primarily as a
result of approximately $40.8 million of firearms sales on extended terms. These
terms provide cash discount incentives and require payment by September 2000.
Inventories increased $9.5 million from December 31, 1999 to $80.3 million as a
result of the seasonality of the business. See "--Seasonality." Accounts payable
increased $3.4 million from December 31, 1999 to $33.5 million as a result of
the Company's on going focus on the management of working capital. Net cash used
in investing activities in the first three months of 2000 and 1999 were $1.4
million and $1.0 million, respectively, consisting of capital expenditures for
maintenance of operations and improvement projects concentrated on enhancing the
efficiency of existing facilities. Net cash provided by financing activities
during the first three months of 2000 and 1999 were $23.0 million and $37.7
million, respectively. The decrease in cash used in financing activities
primarily resulted from lower borrowings under the revolving credit facility,
partly offset by principal payments on outstanding indebtedness.
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<PAGE> 15
Working Capital. Working capital increased to $128.3 million at March
31, 2000 from $91.1 million at December 31, 1999, primarily as a result of the
increases in accounts receivable and inventories, partly offset by the increase
in accounts payable and other accrued liabilities. See "--Cash Flows." The
seasonality of the Company's business causes accounts receivable and inventories
generally to be higher in the first three quarters of the year. See
"--Seasonality." The Company continues to focus on working capital management,
including the collection of accounts receivable, maintaining inventory levels in
line with sales projections and management of accounts payable.
Capital Expenditures. Capital expenditures for the three months ended
March 31, 2000 were $1.4 million, principally for replacement equipment and
improvement projects concentrated on enhancing the efficiency at existing
facilities.
Liquidity. The Company incurred substantial indebtedness in connection
with the Acquisition. As of March 31, 2000, the Company had outstanding $141.5
million of indebtedness, consisting of approximately $86.8 million ($86.9
million face amount) of the Notes, $18.3 million in term loan borrowings and
$32.5 million in revolving credit borrowings under the Company's Senior Credit
Facility, $3.7 million in capital lease obligations and $0.2 million of other
long-term debt. As of March 31, 2000, the Company also had aggregate letters of
credit outstanding of $3.6 million. The Company's revolving credit facility had
$113.9 million available for borrowing as of March 31, 2000.
At present, the principal sources of liquidity for the Company's
business and operating needs are internally generated funds from its operations
and revolving credit borrowings under the Company's Senior Credit Facility. On
April 28, 2000, the Company entered into an amended and restated credit
agreement (the "New Credit Agreement") which provides for a revolving credit
facility of $170.0 million (the "New Revolving Credit Facility"). See "--Credit
Agreement." In connection with the transaction, the outstanding balance of $18.3
million on the Term Loans was repaid. The Company also paid a special dividend
of $49.1 million and a special payment of $6.1 million on April 28, 2000. The
Company believes that it will be able to meet its debt service obligations and
fund its operating requirements with cash flow from operations and revolving
credit borrowings prior to the maturity of the New Revolving Credit Facility,
although no assurance can be given in this regard. In addition, the Company has
implemented certain programs and initiatives in order to improve cash flow from
operations. See "--Cash Flows."
Prior to the amendment and restatement on April 28, 2000, the original
credit agreement (the"Old Credit Agreement") required the Company to make
mandatory prepayments on the Term Loans thereunder annually, in an amount equal
to 50% of the Company's Excess Cash Flow (as defined therein) for the preceding
fiscal year. The Company had excess cash flow under the Old Credit Agreement of
$4.3 million for the year ended December 31, 1999 and accordingly made a
prepayment of $2.2 million on March 31, 2000. In connection with the amendment
and restatement, the remaining balance of the Term Loans under the Old Credit
Agreement of $18.3 million was paid.
Credit Agreement. Effective April 28, 2000, the Company entered into
the New Credit Agreement with The Chase Manhattan Bank ("Chase"), Bank of
America, N.A. ("BofA"), Goldman Sachs Credit Partners L.P. ("GSCP"), and certain
other lenders. The New Credit Agreement provides for a Revolving Credit Facility
of $170.0 million with a final maturity of September 30, 2003. Up to $15.0
million of the New Revolving Credit Facility availability may be used for
letters of credit.
The obligations under the New Credit Agreement are guaranteed by
Holding and are secured by a pledge of the Company's capital stock and by
pledges of and security interests in substantially all the Company's property
and assets. The New Credit Agreement contains various default provisions and
affirmative and negative covenants, including a negative pledge with respect to
the Company's unencumbered assets, and certain financial covenants that require
the Company to meet certain financial ratios and tests. As of April 28, 2000,
the Company was in compliance in all material respects with the financial
covenants under the New Credit Agreement.
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<PAGE> 16
Loans under the New Credit Agreement generally bear interest, at the
Company's option, at a variable rate equal to either (i) the rate that is the
highest of the administrative agent's prime rate, or certain alternative rates,
in each case plus up to 1.25% per annum, ("ABR Loans") or (ii) the rate at which
certain Eurodollar deposits are offered in the interbank Eurodollar market plus
up to 2.25% per annum ("Eurodollar Loans"). The Company's interest rate margin
for the first six months under the New Credit Agreement is set at 1.0% and 2.0%
for ABR Loans and Eurodollar Loans, respectively. The interest rate on the New
Company's Credit Agreement borrowings can be reduced by up to 0.5% and be
increased by up to 0.25% from the levels originally in effect at the end of the
six month period if the Company meets a certain consolidated leverage ratio,
based on EBITDA and total indebtedness, for the four quarters most recently
ended. Once reduced, such interest rate can also be increased up to 1.25% per
annum on ABR Loans and 2.25% per annum on Eurodollar Loans if the Company no
longer meets the financial ratio making it eligible for the interest rate
reduction.
SEASONALITY
The Company produces and markets a broad range of firearms and
ammunition products used in various shooting sports. Several models of the
Company's shotguns and several types of ammunition are intended for target
shooting that generally occurs in the "off season." The majority of the
Company's firearms and ammunition products, however, are manufactured for
hunting use. As a result, sales of the Company's products are seasonal and
concentrated toward the fall hunting season. The Company follows the industry
practice of selling firearms pursuant to a "dating" plan allowing the customer
to buy the products commencing at the beginning of the Company's dating plan
year and pay for them on extended terms. The Company believes that this dating
plan has partially offset the seasonality of the Company's business by shifting
some firearms sales to the first quarter.
STATEMENTS OF FINANCIAL ACCOUNTING STANDARDS NOT YET ADOPTED
During 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." SFAS No. 133 requires entities to recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at their fair value. In June 1999, the
FASB issued SFAS No. 137, "Accounting for Derivative Instruments and Hedging
Activities-Deferral of the Effective Date of FASB Statement No. 133-an amendment
of FASB Statement No. 133", that revises SFAS No. 133 to become effective in the
first quarter of fiscal 2001. The Company is evaluating the provisions of SFAS
No. 133, but does not anticipate its adoption to have a material impact on
financial position or results of operation.
YEAR 2000 COMPLIANCE
The Company has completed all phases of its year 2000 compliance
project. As of the filing date the Company has experienced no significant
disruptions to its business resulting from failures of the Company's internal
computer system or its critical suppliers' and business partners' processes or
systems as a result of the year 2000 issue. Although the Company believes that
it has successfully avoided any significant disruption, it will continue to
monitor all critical systems for the appearance of delayed complications or
disruptions, most particularly any month-end, quarter-end and year-end
processing that has yet to be executed in a production environment. The costs
associated with the year 2000 computer problem as of March 31, 2000 have not
been material to the Company.
REGULATORY DEVELOPMENTS
The Brady Handgun Violence Prevention Act of 1993 (the "Brady Bill"),
which was extended in 1998 to include shotguns and rifles, mandates a national
system of instant background checks for all firearm purchases from
federally-licensed firearms retail dealers. Legislation has been proposed to
further extend this system to sales made by non-retail sellers at gun shows.
State and local laws and regulations vary significantly in the level of
restrictions they place on gun manufacture, ownership and transfer. Some states
have recently enacted, and others are considering, legislation
16
<PAGE> 17
restricting or prohibiting the ownership, use or sale of certain categories of
firearms and/or ammunition. Although many states have mandatory waiting period
laws for handguns in effect, there are currently few restrictive state
regulations applicable to handgun ammunition. The Company's current firearm and
ammunition products generally are not subject to such existing state
restrictions, and generally would not be subject to any known proposed state
legislation relating to regulation of "assault weapons."
The Company believes that recent federal, state and local legislation
relating to the regulation of firearms and ammunition has not had a material
adverse effect on its sale of these products to date. However, there can be no
assurance that federal, state, local or foreign regulation of firearms or
ammunition will not become more restrictive in the future and that any such
development would not have a material adverse effect on the business of the
Company.
INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS
Certain of the statements contained in this report (other than the
financial statements and other statements of historical fact) are
forward-looking statements, including, without limitation, (i) the statements in
"-Business Trends and Initiatives" concerning (a) the Company's belief that the
market for firearms and ammunition will remain flat, at least in the near term
and (b) the Company's intention to respond to competitive pressure, which may
affect quarterly results; (ii) the statements in "-Liquidity and Capital
Resources - Cash Flows" concerning the Company's belief that it will be able to
meet its debt service obligations and fund its operating requirements with cash
flow from operations and revolving credit borrowings prior to the maturity of
the revolving credit facility; (iii) the statement in "Statements of Financial
Accounting Statements Not Yet Adopted" concerning the Company's belief that
adoption of SFAS No. 133 would not have a material adverse effect on financial
position of results of operations; (iv) the statement in "Year 2000 Compliance"
concerning the Company's belief that it has avoided any significant disruption;
(v) the statements in "Legal Proceedings" concerning (a) the Company's belief
that the outcome of all pending product liability cases and claims will not be
likely to have a material adverse effect upon the financial condition or results
of operations of the Company and (b) the Company's anticipation that because of
the nature of its products, it will continue to be involved in product liability
cases and claims in the future; and (vi) other statements as to management's or
the Company's expectations and beliefs presented in "Legal Proceedings."
Forward-looking statements are made based upon management's current
expectations and beliefs concerning future developments and their potential
effects upon the Company. There can be no assurance that future developments
will be in accordance with management's expectations or that the effect of
future developments on the Company will be those anticipated by management. The
important factors described in this report (including, without limitation, those
discussed in "-Business Trends and Initiatives", "-Results of Operations for the
Three Month Period Ended March 31, 2000 as Compared to the Three Month Period
Ended March 31, 1999", "-Liquidity and Capital Resources" and "Legal
Proceedings"), in the Company's Annual Report on Form 10-K for the period ended
December 31, 1999, or in other Securities and Exchange Commission filings (which
factors are incorporated herein by reference), could affect (and in some cases
have affected) the Company's actual results and could cause such results to
differ materially from estimates or expectations reflected in such
forward-looking statements.
While the Company periodically reassesses material trends and
uncertainties affecting the operations and financial condition in connection
with its preparation of management's discussion and analysis of results of
operations and financial condition contained in its quarterly and annual
reports, the Company does not intend to review or revise any particular
forward-looking statement referenced in this report in light of future events.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Certain of the Company's financial instruments are subject to market
risks, including interest rate risk. The Company uses commodity futures
contracts to hedge against the risk of increased prices for lead and copper to
be used in the manufacture of the Company's products. At March 31, 2000, the
market value of the Company's outstanding contracts relating to firm commitments
and anticipated purchases up to one year from
17
<PAGE> 18
the respective balance sheet date was $0.1 million. The Company believes that a
near-term change in commodity prices will not materially impact the consolidated
financial position, results of operations, future earnings, fair value or cash
flows of the Company. The Company was not a party to any interest rate cap or
other protection arrangements with respect to its variable rate indebtedness as
of March 31, 2000. Additionally, the Company believes it does not have a
material exposure to fluctuations in foreign currencies. The Company does not
hold or issue financial instruments for trading purposes.
18
<PAGE> 19
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Pursuant to the Asset Purchase Agreement, the Sellers retained
liability for, and are required to indemnify the Company against, (1) all
product liability cases and claims (whenever they may arise) involving
discontinued products and (2) all product liability cases and claims involving
products that had not been discontinued as of the Acquisition (the "Closing")
and which relate to occurrences that took place prior to the Closing. Except for
all cases and claims relating to discontinued products and for limited costs in
cases relating to certain shotguns, the Company generally bears financial
responsibility for product liability cases and claims relating to occurrences
after the Closing.
As a result of contractual arrangements, the Company manages the joint
defense of product liability litigation involving Remington brand firearms and
Company ammunition products for both Remington and the Sellers. As of March 31,
2000, 24 individual bodily injury cases were pending, primarily alleging
defective product design or manufacture, or failure to provide adequate
warnings, some of these cases seek punitive as well as compensatory damages. Of
these pending individual cases, approximately three involve either discontinued
products or pre-Closing occurrences, for which the Sellers retained liability
and are required to indemnify the Company. The remaining approximately 21 of the
pending cases involve post-Closing occurrences for which the Company bears
responsibility under the Asset Purchase Agreement; the Sellers have some
responsibility for the costs of four of these cases involving certain shotguns,
as described below. The Company has previously disposed of a number of other
cases involving post-Acquisition occurrences by settlement.
As a manufacturer of shotguns and rifles, Remington has been named in
only one of the approximately 30 recent actions brought by certain
municipalities, primarily against manufacturers and sellers of handguns. In City
of Boston et al. v. Smith & Wesson et al., filed in Superior Court, Suffolk
County, Massachusetts, on June 2, 1999 the City of Boston and the Boston Public
Health Commission claim, among other allegations, that industry distribution
practices of the defendants' (including handgun and long gun manufacturers)
permit firearms to enter a secondary market, from which guns may be obtained by
unauthorized users, and that defendants have failed to include adequate safety
devices in their firearms to prevent unauthorized use. Plaintiffs seek
injunctive relief and monetary damages (consisting of the cost of providing
certain city services and lost tax and other revenues.) Briefing is complete for
defendants' consolidated motion to dismiss, which is presently scheduled for
oral argument on May 24, 2000.
Remington is not named in Chicago v. Beretta U.S.A. Corp., another such
municipal cost recovery case. However, a motion to intervene was filed in
November 1998 seeking to name as additional defendants unidentified "ammunition
manufacturers." A second motion for the same purpose was filed by a different
entity in February 2000. Such intervention has not been permitted by the Cook
County Court, in which the Chicago case is pending.
Remington has been named in NAACP et al. v. A.A. Arms, Inc. et al, a
lawsuit filed in federal court in the Eastern District of New York by the
National Association for the Advancement of Colored People on July 16, 1999,
against more than a hundred defendants involved in the manufacture of firearms.
The complaint, as amended in October 1999 to add the National Spinal Cord Injury
Association as a plaintiff, purports to seek injunctive relief rather than
monetary damages and contains allegations about defendants' manufacturing and
distribution practices similar to those in the Boston complaint described above.
Plaintiffs purport to limit their claims to the manufacture and sale of
handguns. Remington has not made or sold handguns, as that term is
conventionally understood, for 60 years.
In recognition of and support of certain legal and legislative
initiatives, the firearms industry has established the Hunting and Shooting
Sports Heritage Fund of which the Company is a member. The Company contributes a
percentage of its domestic net revenue from sales of its hunting and shooting
sports-related products to this organization.
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<PAGE> 20
Because the Company's assumption of financial responsibility for
certain product liability cases and claims involving pre-Acquisition occurrences
was limited to a fixed amount, with the Sellers retaining liability in excess of
such fixed amount and indemnifying the Company in respect thereof, and because
of the Company's accruals with respect to such cases and claims, the Company
believes that product liability cases and claims involving occurrences arising
prior to the Acquisition are not likely to have a material adverse effect upon
the financial condition or results of operations of the Company. Moreover,
although it is difficult to forecast the outcome of litigation, the Company does
not believe, in light of relevant circumstances (including the current
availability of insurance for personal injury and property damage with respect
to cases and claims involving occurrences arising after the Acquisition, its
accruals for the uninsured costs of such cases and claims and the Sellers'
agreement to be responsible for a portion of certain post-Acquisition
shotgun-related product liability costs, as well as the type of firearms
products made by the Company), that the outcome of all pending product liability
cases and claims will be likely to have a material adverse effect upon the
financial condition or results of operations of the Company. Nonetheless, in
part because of the uncertainty as to the nature and extent of manufacturer
liability for personal injury due to alleged product defects, there can be no
assurance that the Company's resources will be adequate to cover future product
liability occurrences, cases or claims, in the aggregate, or that such a
material adverse effect will not result therefrom. Because of the nature of its
products, the Company anticipates that it will continue to be involved in
product liability litigation in the future.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
4.1 Amended and Restated Credit Agreement, dated as of April 28, 2000,
among Remington, The Chase Manhattan Bank, as Administrative Agent and
the other lenders named therein.
4.2 Borrower Stock Pledge Agreement, dated as of April 28, between
Remington and The Chase Manhattan Bank, as Administrative Agent.
4.3 Borrower Security Agreement, dated as of April 28, between Remington
and The Chase Manhattan Bank, as Administrative Agent.
4.4 Borrower Patent and Trademark Security Agreement, dated as of April 28,
between Remington and The Chase Manhattan Bank, as Administrative
Agent.
4.5 Holding Stock Pledge Agreement, dated as of April 28, between Remington
and The Chase Manhattan Bank, as Administrative Agent.
4.6 Holding Guarantee, dated as of April 28, between Remington and The
Chase Manhattan Bank, as Administrative Agent.
27.1 Financial Data Schedule.
99.1 Reconciliation of Income from Operations to EBITDA.
(b) Reports on Form 8-K
During the quarter ended March 31, 2000, the Company filed no reports on
Form 8-K.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RACI HOLDING, INC.
/s/ Mark A. Little
-----------------------------------------
Mark A. Little
Executive Vice President, Chief Financial
Officer and Chief Administrative Officer
(Principal Financial Officer)
May 12, 2000
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Amended and Restated Credit Agreement, dated as of
April 28, 2000, among Remington, The Chase Manhattan
Bank, as Administrative Agent and the other lenders
named therein.
4.2 Borrower Stock Pledge Agreement, dated as of April
28, between Remington and The Chase Manhattan Bank,
as Administrative Agent.
4.3 Borrower Security Agreement, dated as of April 28,
between Remington and The Chase Manhattan Bank, as
Administrative Agent.
4.4 Borrower Patent and Trademark Security Agreement,
dated as of April 28, between Remington and The Chase
Manhattan Bank, as Administrative Agent.
4.5 Holding Stock Pledge Agreement, dated as of April 28,
between Holding and The Chase Manhattan Bank, as
Administrative Agent.
4.6 Holding Guarantee, dated as of April 28, between Remington
and The Chase Manhattan Bank, as Administrative Agent.
27.1 Financial Data Schedule.
99.1 Reconciliation of Income from Operations to EBITDA.
</TABLE>
23
<PAGE> 1
================================================================================
Exhibit 4.1
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
REMINGTON ARMS COMPANY, INC.
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CHASE MANHATTAN BANK, N.A.,
AS ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
GOLDMAN SACHS CREDIT PARTNERS L.P.
AS DOCUMENTATION AGENT
AND
CHASE SECURITIES INC.
AND
BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGERS
DATED AS OF April 28, 2000
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. DEFINITIONS...........................................................................................1
1.1 Defined Terms.....................................................................................1
1.2 Other Definitional Provisions....................................................................15
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS......................................................................15
2.1 Revolving Credit Commitments.....................................................................15
2.2 Revolving Credit Notes...........................................................................16
2.3 Procedure for Revolving Credit Borrowing.........................................................16
2.4 Termination or Reduction of Revolving Credit Commitments.........................................16
2.5 Swing Line Commitments...........................................................................17
SECTION 3. LETTERS OF CREDIT....................................................................................18
3.1 L/C Commitment...................................................................................18
3.2 Procedure for Issuance of Letters of Credit......................................................18
3.3 Commissions and Other Charges....................................................................18
3.4 L/C Participations...............................................................................19
3.5 Reimbursement Obligation of the Borrower.........................................................20
3.6 Obligations Absolute.............................................................................20
3.7 Letter of Credit Payments........................................................................20
3.8 Application......................................................................................21
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.........................................21
4.1 Interest Rates and Payment Dates.................................................................21
4.2 Conversion and Continuation Options..............................................................21
4.3 Minimum Amounts of Tranches......................................................................21
4.4 Optional and Mandatory Prepayments...............................................................22
4.5 Commitment Fees; Fees of Other Representatives and Administrative Agent; Other Fees..............23
4.6 Computation of Interest and Fees.................................................................23
4.7 Inability to Determine Interest Rate.............................................................23
4.8 Pro Rata Treatment and Payments..................................................................23
4.9 Illegality.......................................................................................24
4.10 Requirements of Law.............................................................................24
4.11 Taxes...........................................................................................25
4.12 Indemnity.......................................................................................27
4.13 Certain Rules Relating to the Payment of Additional Amounts.....................................27
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................................................28
5.1 Financial Condition..............................................................................28
5.2 No Change; Solvent...............................................................................28
5.3 Corporate Existence; Compliance with Law.........................................................29
5.4 Corporate Power; Authorization; Enforceable Obligations..........................................29
5.5 No Legal Bar.....................................................................................29
5.6 No Material Litigation...........................................................................29
5.7 No Default.......................................................................................29
5.8 Ownership of Property; Liens.....................................................................29
5.9 Intellectual Property............................................................................30
5.10 No Burdensome Restrictions......................................................................30
5.11 Taxes...........................................................................................30
5.12 Federal Regulations.............................................................................30
5.13 ERISA...........................................................................................30
</TABLE>
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<TABLE>
<S> <C> <C>
5.14 Collateral......................................................................................31
5.15 Investment Company Act; Other Regulations.......................................................31
5.16 Subsidiaries....................................................................................31
5.17 Purpose of Loans................................................................................31
5.18 Environmental Matters...........................................................................31
5.19 Accuracy of Information.........................................................................32
SECTION 6. CONDITIONS PRECEDENT.................................................................................33
6.1 Conditions to Initial Extension of Credit........................................................33
6.2 Conditions to Each Other Extension of Credit.....................................................35
SECTION 7. AFFIRMATIVE COVENANTS................................................................................35
7.1 Financial Statements.............................................................................35
7.2 Certificates; Other Information..................................................................36
7.3 Payment of Obligations...........................................................................37
7.4 Conduct of Business and Maintenance of Existence.................................................37
7.5 Maintenance of Property; Insurance...............................................................37
7.6 Inspection of Property; Books and Records; Discussions...........................................37
7.7 Notices..........................................................................................37
7.8 Environmental Laws...............................................................................38
7.9 After-Acquired Property and Fixtures.............................................................39
7.10 Surveys..........................................................................................39
7.11 Title Insurance Policy...........................................................................39
7.12 Title Insurance Policy...........................................................................40
SECTION 8. NEGATIVE COVENANTS...................................................................................40
8.1 Financial Condition Covenants....................................................................40
8.2 Limitation on Indebtedness.......................................................................40
8.3 Limitation on Liens..............................................................................41
8.4 Limitation on Guarantee Obligations..............................................................42
8.5 Limitation on Fundamental Changes................................................................44
8.6 Limitation on Sale of Assets.....................................................................44
8.7 Limitation on Dividends..........................................................................45
8.8 Limitation on Optional Payments and Modifications of Debt Instruments, etc.......................45
8.9 Limitation on Capital Expenditures...............................................................46
8.10 Limitation on Investments, Loans and Advances...................................................46
8.11 Limitations on Certain Acquisitions.............................................................47
8.12 Limitation on Transactions with Affiliates......................................................47
8.13 Limitation on Sales and Leasebacks..............................................................48
8.14 Limitations on Dispositions of Collateral.......................................................48
8.15 Limitation on Changes in Fiscal Year............................................................48
8.16 Limitation on Negative Pledge Clauses...........................................................48
8.17 Limitation on Lines of Business; Creation of Subsidiaries.......................................49
8.18 Limitation on Commodities Activities............................................................49
8.19 Interest Rate Agreements........................................................................49
SECTION 9. EVENTS OF DEFAULT....................................................................................49
SECTION 10. THE ADMINISTRATIVE AGENT; THE OTHER REPRESENTATIVES.................................................52
10.1 Appointment.....................................................................................52
10.2 Delegation of Duties............................................................................52
10.3 Exculpatory Provisions..........................................................................52
10.4 Reliance by Administrative Agent and the Other Representatives..................................53
10.5 Notice of Default...............................................................................53
10.6 Non-Reliance on Administrative Agent, Other Representatives and Other Lenders...................53
</TABLE>
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<TABLE>
<S> <C> <C>
10.7 Indemnification.................................................................................54
10.8 Administrative Agent and Other Representatives in their Individual Capacities...................54
10.9 Successor Administrative Agent or Other Representatives.........................................54
10.10 Swing Line Lender; Issuing Lender..............................................................55
10.11 The Other Representatives......................................................................55
SECTION 11. MISCELLANEOUS.......................................................................................55
11.1 Amendments and Waivers..........................................................................55
11.2 Notices.........................................................................................55
11.3 No Waiver; Cumulative Remedies..................................................................56
11.4 Survival of Representations and Warranties......................................................56
11.5 Payment of Expenses and Taxes...................................................................57
11.6 Successors and Assigns; Participations and Assignments..........................................57
11.7 Adjustments; Set-off............................................................................59
11.8 Counterparts....................................................................................60
11.9 Severability....................................................................................60
11.10 Integration....................................................................................60
11.11 GOVERNING LAW..................................................................................60
11.12 Submission To Jurisdiction; Waivers............................................................60
11.13 Acknowledgements...............................................................................61
11.14 WAIVERS OF JURY TRIAL..........................................................................61
11.15 Confidentiality................................................................................61
</TABLE>
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<PAGE> 5
SCHEDULES
1.1A Commitments; Addresses
5.1(a) Financial Statement Preparation Disclosure
5.2(a) Material Adverse Effect Disclosure
5.4 Consents Required and Status
5.6 Litigation
5.8 Ownership of Property; Liens
5.16 Subsidiaries
5.18 Assumed Environmental Liabilities
6.1(e) Filing Jurisdictions and Lien Searches
6.1(f) Local Counsel
8.2(f) Permitted Indebtedness
8.3(j) Permitted Liens
8.4(a) Guarantee Obligations
8.10(c) Permitted Investments
8.12(v) Permitted Transactions with Affiliates
8.18 Commodity Interests
8.19 Interest Rate Agreements
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Swing Line Note
B Form of Holding Guarantee
C-1 Form of Borrower Security Agreement
C-2 Form of Borrower Patent and Trademark Security
Agreement
D Form of U.S. Tax Compliance Certificate
E-1 Form of Holding Stock Pledge Agreement
E-2 Form of Borrower Stock Pledge Agreement
F-1 Form of Mortgage- Alabama
F-2 Form of Mortgage - Arkansas
F-3 Form of Mortgages- Kentucky
F-4 Form of Mortgage - New York
F-5 Form of Mortgage- North Carolina
F-6 Form of Mortgage - Ohio
F-7 Form of Mortgage - Oklahoma
G-1 Form of Opinion of Counsel to Borrower
G-2 Form of Opinion of Local Counsel to Borrower
H Form of Assignment and Acceptance
I Form of Swing Line Loan Participation Certificate
J Form of Closing Certificate
-iv-
<PAGE> 6
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28,
2000, (this Agreement") among REMINGTON ARMS COMPANY, INC., a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders"), THE CHASE MANHATTAN
BANK ("Chase"), BANK OF AMERICA, N.A. ("BofA") and GOLDMAN SACHS CREDIT PARTNERS
L.P. ("GSCP"), CHASE SECURITIES INC. ("CSI") and BANC OF AMERICA SECURITIES LLC
("BAS"), CSI and BAS as joint lead arrangers for the Lenders hereunder (in such
capacity the "Arrangers"), Chase as administrative agent for the Lenders
hereunder (in such capacity the "Administrative Agent"), BofA as syndication
agent for the Lenders hereunder (in such capacity the "Syndication Agent") and
GSCP as documentation agent for the Lenders hereunder (in such capacity the
"Documentation Agent").
The parties hereto hereby agree as follows:
WHEREAS, the Borrower proposes to make various amendments and
modifications to the terms of its existing senior secured credit facility (the
"Existing Credit Facility");
WHEREAS, all the obligations of the Borrower hereunder will be
secured by, among other things, (i) a perfected lien on and security interest in
certain collateral described in the Security Documents (as hereinafter defined),
(ii) a pledge of all the issued and outstanding Capital Stock (as hereinafter
defined) of the Borrower by the Borrower's parent company, RACI Holding, Inc.,
("Holding"), and (iii) an unconditional guarantee by Holding,; and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree that the Existing
Credit Facility is hereby amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate
shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next preceding
Business Day) by Chase from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by Chase from three federal funds brokers of
recognized standing selected by it. Any change in the ABR due to a
change in the Prime
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<PAGE> 7
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD Rate
or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Accounts": as defined in the Uniform Commercial Code as in
effect in the State of New York.
"Adjustment Date": the second Business Day following receipt
by the Administrative Agent of both (i) the financial statements
required to be delivered pursuant to Section 7.1(a) or (b), as the case
may be, for the most recently completed fiscal period and (ii) the
compliance certificate required to be delivered pursuant to Section
7.2(b) with respect to such fiscal period.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either
to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Outstanding Revolving Extensions of Credit": as to
any Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (b) such Lender's Revolving Credit Commitment Percentage
of the L/C Obligations then outstanding and (c) such Lender's Revolving
Credit Commitment Percentage of the Swing Line Loans then outstanding.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented, waived or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan for the first six
months after the Closing Date, the rate per annum set forth under the
relevant column heading below:
Eurodollar
ABR Loans Loans
--------- ----------
1% 2%
; provided that, from and after October 28, 2000, the Applicable Margin
will be adjusted, on each Adjustment Date, to the applicable rate per
annum set forth in the Pricing Grid attached hereto as Annex A; and
provided, further, that in the event that the financial statements
required to be delivered pursuant to Section 7.1(a) or (b), as
applicable, and the related compliance certificate required pursuant to
Section 7.2(b), are not delivered when due, then (x) if such financial
statements are delivered after the date such financial statements were
required to be delivered and the Applicable Margin increases from that
previously in effect as a result of the delivery of such financial
statements, then the Applicable Margin during the period from the date
upon which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as otherwise
provided in clause (y) below, be the Applicable Margin as so increased
and (y) if such financial statements are not delivered prior to the
expiration of the applicable cure period, then, effective upon such
expiration, during the period from the date upon which such financial
statements were required to be delivered (after the expiration of the
applicable cure period) until two Business Days following the date upon
which they actually are delivered, the Applicable Margin shall be
2.25%, in the case of Eurodollar Loans, and 1.25%, in the case of ABR
Loans.
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<PAGE> 8
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"Asset Sale": any sale, issuance, conveyance, transfer, lease,
sale/leaseback or other disposition (a "Disposition") by Holding, the
Borrower or any of its Subsidiaries, in one or a series of related
transactions, of any real or personal, tangible or intangible, property
(including, without limitation, any issuance of Capital Stock of the
Borrower or any of its Subsidiaries) of Holding, the Borrower or such
Subsidiary to any Person (other than to Holding, the Borrower or any
Wholly Owned Subsidiary of the Borrower which is a Subsidiary
Guarantor).
"Assignee": as defined in Section 11.6(c).
"Available Revolving Credit Commitment": as to any Lender at
any time, an amount equal to the excess, if any, of (a) the amount of
such Lender's Revolving Credit Commitment at such time over (b) the sum
of (i) the aggregate unpaid principal amount at such time of all
Revolving Credit Loans made by such Lender, (ii) an amount equal to
such Lender's Revolving Credit Commitment Percentage of the aggregate
unpaid principal amount at such time of all Swing Line Loans, provided
that for purposes of calculating Available Revolving Credit Commitments
pursuant to Section 4.5(a) such amount shall be deemed to be zero, and
(iii) an amount equal to such Lender's Revolving Credit Commitment
Percentage of the outstanding L/C Obligations at such time;
collectively, as to all the Lenders, the "Available Revolving Credit
Commitments".
"Board": as defined in the definition of the term "ABR".
"Borrower Patent and Trademark Security Agreement": the Patent
and Trademark Security Agreement to be executed and delivered by the
Borrower, substantially in the form of Exhibit C-2, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Borrower Security Agreement": the Security Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit C-1, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"Borrower Stock Pledge Agreement": the Borrower Stock Pledge
Agreement to be executed and delivered by the Borrower, substantially
in the form of Exhibit E-2, as the same may be amended, supplemented,
waived or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.3 or 2.5 as a date on which the Borrower requests
the Lenders or the Swing Line Lender, as the case may be, to make Loans
hereunder.
"Business": as defined in Section 5.18(a).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan with respect to which the Eurodollar Rate is determined
based upon the Telerate British Bankers Assoc. Interest Settlement
Rates Page in accordance with the definition of Eurodollar Base Rate,
"Business Day" shall mean any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England and New York, New York.
"Capital Expenditures": with respect to any Person for any
period, the sum of the aggregate of all expenditures (whether paid in
cash, capitalized as an asset or accrued as a liability) by such Person
and its consolidated Subsidiaries during such period which, in
accordance with GAAP, are or should be included
3
<PAGE> 9
in "capital expenditures" or similar items reflected in the
consolidated statement of cash flows of such Person.
"Capital Stock": (a) any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and (b) any and all warrants or
options to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or fully guaranteed
or insured by the United States Government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit or
bankers' acceptances of (i) any Lender or (ii) any commercial bank
having capital and surplus in excess of $500,000,000 and the commercial
paper of the holding company of which is rated at least A-1 or the
equivalent thereof by Standard & Poor's Corporation ("S&P") or at least
P-1 or the equivalent thereof by Moody's Investors Service, Inc.
("Moody's") (or if at such time neither is issuing ratings, then a
comparable rating of such other nationally recognized rating agency as
shall be approved by the Administrative Agent), and (c) commercial
paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Moody's (or if at such time neither is
issuing ratings, then a comparable rating of such other nationally
recognized rating agency as shall be approved by the Administrative
Agent), in each case provided in clauses (a), (b) and (c) above,
maturing within twelve months after the date of acquisition.
"C&D Fund IV": The Clayton & Dubilier Private Equity Fund IV
Limited Partnership, a Connecticut limited partnership.
"CD&R": Clayton, Dubilier & Rice, Inc.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. ' 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's) insuring
time deposits at offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars of $100,000 or more having a maturity of 30 days or more.
"Change of Control": the occurrence of any of the following
events: (i) C&D Fund IV, CD&R and any of their respective Affiliates
(other than Affiliates which are Portfolio Companies) shall cease to
beneficially own directly, in the aggregate, shares of Voting Stock
having 51% or more of the total voting power of all outstanding shares
of Voting Stock of Holding; (ii) a "change of control" under and as
defined in the Subordinated Note Indenture shall occur; or (iii)
Holding shall cease to own and control directly, of record and
beneficially, 100% of each class of outstanding Capital Stock of the
Borrower free and clear of all Liens (except Liens created or permitted
by the Holding Pledge Agreement).
"Closing Date": the date on which all the conditions precedent
set forth in subsection 6.1 shall be satisfied or waived.
"Closing Dividend": as defined in Section 8.7(a).
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
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<PAGE> 10
"Collateral": all assets of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitments": the collective reference to the Revolving
Credit Commitments; individually, a "Commitment".
"Commitment Fee Rate": 2 of 1% per annum; provided that, from
and after October 28, 2000, the Commitment Fee Rate will be adjusted,
on each Adjustment Date, to the applicable rate per annum set forth on
Annex A under the heading "Commitment Fee" (determined on each
Adjustment Date in the same manner as described in the definition of
"Applicable Margin").
"Commodity Interests": any exchange-traded or over-the-counter
commodity interest, futures contract, option on a futures contract,
forward contract, option, swap, cap, collar or floor.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Adjusted Total Indebtedness": with respect to
the Borrower and its consolidated Subsidiaries, as of the last day of
any period of four consecutive fiscal quarters, the sum, without
duplication, of, (a) the difference of (i) Consolidated Funded
Indebtedness of the Borrower at such day less (ii) the outstanding
principal amount of Revolving Credit Loans and Swing Line Loans at such
day, plus (b) the average daily aggregate outstanding principal amount
of Revolving Credit Loans and Swing Line Loans during such period of
four consecutive fiscal quarters.
"Consolidated Funded Indebtedness": of any Person, at the date
of determination thereof, all Indebtedness of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with
GAAP, which by its terms matures more than one year after such date
including in any event (a) any such Indebtedness maturing within one
year from such date which is renewable or extendible at the option of
the obligor to a date more than one year from such date and (b) the
outstanding principal amount of Subordinated Notes and Revolving Credit
Loans and Swing Line Loans.
"Consolidated Interest Expense": of any Person, for any
period, (a) consolidated cash interest expense of such Person for such
period determined in accordance with GAAP minus (b) consolidated cash
interest income of such Person for such period determined in accordance
with GAAP.
"Consolidated Interest Expense Ratio": with respect to the
Borrower and its consolidated Subsidiaries, for any period of four
consecutive fiscal quarters, the ratio of (a) EBITDA for such period to
(b) Consolidated Interest Expense for such period.
"Consolidated Leverage Ratio": the Consolidated Leverage Ratio
as of the last day of any fiscal quarter shall be the ratio of (a)
Consolidated Adjusted Total Indebtedness of the Borrower at such date
to (b) EBITDA of the Borrower for the four fiscal quarters ending on
such day.
"Consolidated Net Income": of any Person, for any period, net
income of such Person for such period, determined on a consolidated
basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any material security issued by such Person or of any material
agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
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<PAGE> 11
"Disposition": as defined in the definition of the term "Asset
Sale".
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiaries": as to any Person, all Subsidiaries of
such Person organized under the laws of the United States of America,
any State thereof or the District of Columbia.
"EBITDA": of any Person, for any period, the Consolidated Net
Income of such Person for such period adjusted to exclude the following
items of income or expense to the extent that such items are included
in the calculation of such Consolidated Net Income: (a) Consolidated
Interest Expense, (b) any non-cash expenses and charges, (c) total
income tax expense, (d) depreciation expense, (e) the expense
associated with amortization of intangible and other assets, (f)
non-cash provisions for reserves for discontinued operations, (g) any
extraordinary, unusual or non-recurring gains or losses or charges or
credits, (h) any gain or loss associated with the sale or write-down of
assets, (i) any gain or loss accounted for by the equity method of
accounting (except in the case of income to the extent of the amount of
cash dividends or cash distributions paid to the Borrower or any
Subsidiary by the entity accounted for by the equity method of
accounting) and (j) amounts paid as permitted dividends that are
treated as compensation expense.
"Effective Date": the date on which all the conditions
precedent set forth in Section 6.1 shall be satisfied or waived.
"Environmental Costs": any and all costs or expenses
(including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses), of whatever kind or nature, known or unknown,
contingent or otherwise, arising out of, or in any way relating to any
violation of, noncompliance with or liability under any Environmental
Laws or any orders, requirements, demands, or investigations of any
person related to any Environmental Laws. Environmental Costs include
any and all of the foregoing, without regard to whether they arise out
of or are related to any past, pending or threatened proceeding of any
kind.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined by Chase to be the arithmetic mean (rounded to the nearest
1/100th of 1%) of the offered rates for U.S. dollar deposits with a
term comparable to the applicable Interest Period that appears on the
British Bankers Assoc. Interest Settlement Rates Page (as defined
below) at approximately 11:00 a.m., London time, on the second full
Business Day preceding the first day of such Interest Period; provided,
however, that if there shall at any time no longer exist a British
Bankers Assoc. Interest Settlement Rates Page, "Eurodollar Base Rate"
shall mean, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the rate
at
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<PAGE> 12
which Chase is offered Dollar deposits at or about 10:00 A.M., New York
City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an
amount comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period. "British Bankers Assoc.
Interest Settlement Rates Page" shall mean the display designated as
Page 3750 on the Telerate System (or such other page as may replace
such page on such service for the purpose of displaying the rates at
which U.S. dollar deposits are offered by leading banks in the London
interbank deposit market).
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Extension of Credit": as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of
Credit by such Lender.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Foreign Subsidiaries": as to any Person, all Subsidiaries of
such Person other than Domestic Subsidiaries.
"Former Plan": any employee benefit plan in respect of which
the Borrower or a Commonly Controlled Entity could incur liability
because of Section 4069 or Section 4212(c) of ERISA.
"GAAP": with respect to the covenants contained in Section 8.1
and all defined terms relating thereto, generally accepted accounting
principles in the United States of America in effect on the Effective
Date and, for all other purposes under this Agreement, generally
accepted accounting principles in the United States of America in
effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any such
obligation of the guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
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<PAGE> 13
(1) for the purchase or payment of any such primary obligation or (2)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantees": the collective reference to the Holding
Guarantee and the Subsidiaries Guarantee.
"Guarantor": any Person delivering a Guarantee pursuant to
this Agreement.
"Holding": as defined in the Recitals hereto.
"Holding Guarantee": the Guarantee to be executed and
delivered by Holding, substantially in the form of Exhibit B, as the
same may be amended, supplemented, waived or otherwise modified from
time to time.
"Holding Stock Pledge Agreement": the Stock Pledge Agreement
to be executed and delivered by Holding, substantially in the form of
Exhibit E-1, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"Holding Subordinated Note Guarantee": the unsecured
subordinated guarantee made by Holding pursuant to the Subordinated
Note Indenture of the obligations of the Borrower in respect of the
Subordinated Notes.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance
with customary practices), (b) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument,
(c) all obligations of such Person under Financing Leases, (d) all
obligations of such Person in respect of acceptances issued or created
for the account of such Person and (e) all indebtedness or obligations
of the types referred to in the preceding clauses (a) through (d)
secured by any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment
thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurodollar Loan
having an Interest Period longer than three months, (x) each day which
is three months, or a whole multiple thereof, after the first day of
such Interest Period and (y) the last day of such Interest Period.
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"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month; and
(3) the Borrower shall select Interest Periods so as
not to require a scheduled payment of any Eurodollar Loan
during an Interest Period for such Loan.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate futures contract, interest rate option,
interest rate cap or other interest rate hedge arrangement, to or under
which the Borrower or any of its Subsidiaries is a party or a
beneficiary on the date hereof or becomes a party or a beneficiary
after the date hereof.
"Investment Fund": CD&R, C&D Fund IV or any of their
respective Affiliates which are organized primarily for the purpose of
making equity investments in one or more companies.
"Investments": as defined in Section 8.10.
"Issuing Lender": Chase, in its capacity as issuer of any
Letter of Credit.
"L/C Commitment": $15,000,000.
"L/C Fee Payment Date": with respect to any Letter of Credit,
the last day of each March, June, September and December occurring
after the date of issuance thereof and prior to the expiration thereof.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
Section 3.5(a).
"L/C Participants": the collective reference to all the
Lenders other than the Issuing Lender.
"Letter of Credit": as defined in Section 3.1(a).
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"Lien": any mortgage, pledge, hypothecation, assignment,
security deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan": a Revolving Credit Loan or a Swing Line Loan, as the
context shall require; collectively, the "Loans".
"Loan Documents": this Agreement, the Notes, the Applications,
the Guarantees and the Security Documents.
"Loan Parties": the Borrower, Holding and each Subsidiary of
the Borrower which is a party to a Loan Document; individually, a "Loan
Party".
"Management Subscription Agreements": one or more stock
subscription or stock option agreements which have been or may be
entered into between Holding and certain directors, officers, employees
or managers of, or consultants to, Holding, the Borrower or any of
their respective Subsidiaries (or trusts for the benefit of relatives
of such persons), with respect to the issuance to such parties of
common stock of Holding or options, warrants or other rights in respect
of common stock of Holding, any agreements entered into from time to
time by transferees of any such stock, options, warrants or other
rights in connection with the sale, transfer or reissuance thereof, and
any assumptions of any of the foregoing by third parties.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of Holding, the Borrower and its Subsidiaries taken as a
whole or (b) the validity or enforceability of this Agreement, any of
the Notes or any of the other Loan Documents or the rights and remedies
of the Administrative Agent and the Lenders hereunder and thereunder.
"Material Environmental Amount": any amounts payable by the
Borrower or any of its Subsidiaries (not subject to payment or
reimbursement by the Seller pursuant to the Purchase Agreement) in
respect of or under any Environmental Law for remedial costs,
compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof, that has a Material Adverse
Effect.
"Material Facility": each of the Borrower's manufacturing
facilities located at Ilion, New York and Lonoke, Arkansas.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under or which may give rise to
liability under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Mexican Company": Industrias Tecnos, S.A. de C.V.
"Mortgage": the collective reference to the mortgages and
deeds of trust to be executed and delivered by the Borrower
substantially in the form of Exhibit F-1 through F-7, as the same may
be amended, supplemented, waived or otherwise modified from time to
time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": with respect to any Asset Sale or any
Recovery Event, an amount equal to the gross cash proceeds of such
Asset Sale or Recovery Event, net of (i) reasonable attorneys' fees,
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accountants' fees, brokerage, consultant and other customary fees,
underwriting commissions and other reasonable fees and expenses
actually incurred in connection therewith, (ii) taxes paid or
reasonably estimated to be payable as a result thereof, (iii) in the
case of any Asset Sale appropriate amounts to be provided by Holding or
any of its Subsidiaries as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by Holding
or such Subsidiary, as the case may be, after such Asset Sale, and (iv)
in the case of an Asset Sale or Recovery Event involving an asset
subject to a Lien securing any Indebtedness, payments made and
installment payments required to be made to repay such Indebtedness,
including payments in respect of principal, interest and prepayment
premiums and penalties.
"Non-Excluded Taxes": as defined in Section 4.11.
"Notes": the collective reference to the Revolving Credit
Notes and the Swing Line Notes.
"Obligor": any purchaser of goods or services or other Person
obligated to make payment to the Borrower or a Domestic Subsidiary in
respect of a purchase of such goods or services.
"Other Representatives": the Arrangers, the Syndication Agent,
the Documentation Agent and the Issuing Lender, in their respective
capacities as such.
"Participant": as defined in Section 11.6(b).
"Patent and Trademark Security Agreements": the collective
reference to the Borrower Patent and Trademark Security Agreement and
the Subsidiaries Patent and Trademark Security Agreement.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Equity Sale": any sale or issuance:
(a) of equity securities of Holding pursuant to a Management
Subscription Agreement or to CD&R, C&D Fund IV, any Affiliate
(other than a Portfolio Company) of CD&R or C&D Fund IV, or
any director, officer or consultant of or to any Affiliate of
CD&R; or
(b) of equity securities of Holding or a Subsidiary of the
Borrower as part of the consideration for an acquisition
permitted by Section 8.11.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": any employee benefit plan which is covered by ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is
an "employer" as defined in Section 3(5) of ERISA.
"Portfolio Company": (a) any Person (other than any Investment
Fund) in which any Investment Fund shall have made any direct or
indirect common equity investment and (b) any Person (other than any
Investment Fund) organized to be the holding company parent of Holding.
"Properties": as defined in Section 5.18.
"Purchase Agreement": the purchase agreement dated as of
November 24, 1993 between the Seller and the Borrower.
"Recovery Event": any settlement of or payment in respect of
an insurance claim or litigation or similar proceeding, in each case
relating to loss of or damage to any of the assets of Holding or any of
its
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Subsidiaries, if the aggregate gross proceeds received by Holding or
any of its Subsidiaries in respect of the relevant event (or series of
related events) is not less than $5,000,000.
"Redeemable Preferred Stock": any preferred stock subject to
mandatory redemption requirements or whose redemption is outside the
control of the issuer within the meaning of Rule 5-02.28 of Regulation
S-X under the Securities Exchange Act of 1934, as amended.
"Refunded Swing Line Loans": as defined in Section 2.5(c).
"Register": as defined in Section 11.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5(a) for amounts
drawn under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under Department of Labor Regulations '4043.
"Required Lenders": at any date, the holders of a majority of
the aggregate Revolving Credit Commitments, or, if the Revolving Credit
Commitments have been terminated, the aggregate unpaid principal amount
of the Revolving Credit Loans.
"Required Release Lenders": at any date, the holders of
66-2/3% of the aggregate Revolving Credit Commitments, or, if the
Revolving Credit Commitments have been terminated, the aggregate unpaid
principal amount of the Revolving Credit Loans.
"Required Supermajority Release Lenders": at any date, the
holders of 80% of the aggregate Revolving Credit Commitments, or, if
the Revolving Credit Commitments have been terminated, the aggregate
unpaid principal amount of the Revolving Credit Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its material property or to which such Person or any of its
material property is subject.
"Responsible Officer": as to any Person, any of the following
officers of such Person: (a) the chief executive officer or the
president of such Person and, with respect to financial matters, the
chief financial officer, the treasurer or the controller of such
Person, (b) any vice president of such Person or, with respect to
financial matters, any assistant treasurer or assistant controller of
such Person, who has been designated in writing to the Administrative
Agent as a Responsible Officer by such chief executive officer or
president of such Person or, with respect to financial matters, such
chief financial officer of such Person and (c) with respect to Section
7.7 and without limiting the foregoing, the general counsel of such
Person and, with respect to ERISA related matters, the vice president
of human resources or such other officer responsible for such matters.
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"Revolving Credit Commitment": as to any Lender, its
obligation to make Revolving Credit Loans to, and/or make or
participate in Swing Line Loans made to, and/or issue or participate in
Letters of Credit issued on behalf of, the Borrower, in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Lender's name in Schedule 1.1A under the heading
"Revolving Credit Commitment", as such amount may be reduced from time
to time as provided herein; collectively, as to all the Lenders, the
"Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Lender,
the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment (or, if the Revolving
Credit Commitments have terminated or expired, the percentage which (i)
the principal amount of all such Lender's then outstanding Revolving
Credit Loans then constitutes of (ii) the aggregate principal amount of
all Revolving Credit Loans then outstanding).
"Revolving Credit Commitment Period": the period from and
including the Effective Date to but not including the Termination Date,
or such earlier date as the Revolving Credit Commitments shall
terminate as provided herein.
"Revolving Credit Loans": as defined in Section 2.1.
"Revolving Credit Note": as defined in Section 2.2.
"Securities Act": the Securities Act of 1933, as amended.
"Security Agreements": the collective reference to the
Borrower Security Agreement and the Subsidiaries Security Agreement.
"Security Documents": the collective reference to each
Mortgage, the Security Agreements, the Stock Pledge Agreements, the
Patent and Trademark Security Agreements and all other similar security
documents hereafter delivered to the Administrative Agent pursuant to
Section 7.9(a) or 8.17 granting a Lien on any asset or assets of any
Person to secure the obligations and liabilities of the Borrower
hereunder, under the Notes and/or under any of the other Loan Documents
or to secure any guarantee of any such obligations and liabilities.
"Seller": E.I. du Pont de Nemours and Company, a Delaware
corporation and Remington Arms Company, Inc., now named Sporting Goods
Properties, Inc.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent" and "Solvency": with respect to any Person on a
particular date, the circumstance that on such date, (a) the fair value
of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable 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, (c) 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, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small amount of capital.
"Specified Change of Control": a Change of Control described
in clause (ii) of the definition thereof.
"Stock Pledge Agreements": the collective reference to the
Borrower Stock Pledge Agreement and the Holding Stock Pledge Agreement.
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"Subordinated Note Indenture": the Indenture dated as of
November 30, 1993, among Holding, the Borrower and First Trust National
Association, as Trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with
Section 8.8.
"Subordinated Notes": the 92% Subordinated Notes due 2003 of
the Borrower in an aggregate principal amount of up to $100,000,000.
"Subordinated Note Repurchase": as defined in Section 8.8(a).
"Subsidiaries Guarantee": the Guarantee to be executed and
delivered by each Domestic Subsidiary, if any, if required by Section
8.17, substantially in the form of Exhibit B (with any modifications
reasonably required by the Administrative Agent), as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Subsidiaries Patent and Trademark Security Agreement": the
Patent and Trademark Security Agreement to be executed and delivered by
each Domestic Subsidiary, if any, if required by Section 8.17,
substantially in the form of Exhibit C-2 (with any modifications
reasonably required by the Administrative Agent), as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Subsidiaries Security Agreement": the Security Agreement to
be executed and delivered by each Domestic Subsidiary, if any, if
required by Section 8.17, in favor of the Administrative Agent,
substantially in the form of Exhibit C-1 (with any modifications
reasonably required by the Administrative Agent), as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": any subsidiary of the Borrower party
to the Subsidiaries Guarantee and the relevant Security Documents
required pursuant to Section 8.17(b).
"Swing Line Commitment": the Swing Line Lender's obligation to
make Swing Line Loans pursuant to Section 2.5.
"Swing Line Lender": Chase, in its capacity as provider of the
Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in Section 2.5(a).
"Swing Line Note": as defined in Section 2.5(b).
"Termination Date": September 30, 2003.
"Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
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"Transaction": the collective reference to (i) the amendments
to the Existing Credit Facility effected pursuant to this Agreement,
(ii) payment of the Closing Dividend, and (iii) payment of any fees and
expenses related thereto.
"Transferee": as defined in Section 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Underfunding": an excess of all accrued benefits under a Plan
(based on those assumptions used to fund such Plan), determined as of
the most recent annual valuation date, over the value of the assets of
such Plan allocable to such accrued benefits.
"Uniform Customs: the Uniform Customs and Practice for
Documentary Credits (1983 Revision), International Chamber of Commerce
Publication No. 400, as the same may be amended from time to time.
"U.S. Tax Compliance Certificate": as defined in Section 4.11.
"Voting Stock": shares of Capital Stock ordinarily entitled to
vote in the election of directors.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity 80% or more of the Voting Stock of which is
owned of record and beneficially (directly or indirectly) by such
Person.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes and the other Loan Documents or any certificate
or other document made or delivered pursuant hereto or thereto.
(b As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Revolving Credit Commitment
Percentage of the sum of the then outstanding L/C Obligations and the then
outstanding Swing Line Loans, does not exceed the amount of such Lender's
Revolving Credit Commitment. During the Revolving Credit Commitment Period the
Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in
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accordance with Sections 2.3 and 4.2, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the
Termination Date.
2.2 Revolving Credit Notes. (a) The Revolving Credit Loans
made by each Lender shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit A-1, with appropriate insertions as to
payee, date and principal amount (each, as amended, supplemented, replaced or
otherwise modified from time to time, a "Revolving Credit Note"), payable to the
order of such Lender and in a principal amount equal to the lesser of (i) the
amount set forth opposite such Lender's name in Schedule 1.1A under the heading
"Revolving Credit Commitment" and (ii) the aggregate unpaid principal amount of
all Revolving Credit Loans made by such Lender. Each Lender is hereby authorized
to record the date, Type and amount of each Revolving Credit Loan made by such
Lender, each continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Eurodollar Loans, the length of each Interest Period
and Eurodollar Rate with respect thereto, on its internal books and records
and/or on the schedule annexed to and constituting a part of its Revolving
Credit Note, and any such recordation on such schedule shall constitute prima
facie evidence of the accuracy of the information so recorded, provided that the
failure by any Lender to make any such recordation or any error in such
recordation shall not affect the obligations of the Borrower under this
Agreement or the Revolving Credit Notes. Each Revolving Credit Note shall (x) be
dated the Effective Date, (y) be stated to mature on the Termination Date and
(z) provide for the payment of interest in accordance with Section 4.1.
(b The Borrower shall repay all outstanding Revolving Credit
Loans on the Termination Date or such earlier date as the Revolving Credit
Commitments shall terminate as provided herein.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:30 PM, New York City time, at least (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of ABR Loans, except
any ABR Loan to be used solely to pay a like amount of outstanding Reimbursement
Obligations or Swing Line Loans, $1,000,000 or a whole multiple thereof (or, if
the then Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans, $2,500,000 or a whole
multiple of $500,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each borrowing of
Revolving Credit Loans available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified in Section 11.2
prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in Dollars and in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Lenders and in like funds as received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments.
The Borrower shall have the right, upon not less than one Business Day's notice
to the Administrative Agent, to terminate the Revolving Credit Commitments or,
from time to time, to reduce the amount of the Revolving Credit Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Credit Loans and
Swing Line Loans made on the effective date thereof, the aggregate principal
amount of the Revolving Credit Loans then outstanding, when added to the sum of
the then outstanding L/C Obligations and the then outstanding Swing Line Loans,
would exceed the Revolving Credit Commitments then in effect. Any such reduction
shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and shall reduce permanently the Revolving Credit Commitments
then in effect.
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2.5 Swing Line Commitments. (a) Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") to the
Borrower from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed $5,000,000,
provided that at no time may the sum of the then outstanding Swing Line Loans,
Revolving Credit Loans and L/C Obligations exceed the Revolving Credit
Commitments. Amounts borrowed by the Borrower under this Section 2.5 may be
repaid and, through but excluding the Termination Date, reborrowed. All Swing
Line Loans shall be made as ABR Loans and shall not be entitled to be converted
into Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 12:30
PM, New York City time) on the requested Borrowing Date specifying the amount of
the requested Swing Line Loan which shall be in a minimum amount of $100,000 or
a whole multiple of $50,000 in excess thereof. The proceeds of the Swing Line
Loan will be made available by the Swing Line Lender to the Borrower at the
office of the Swing Line Lender by crediting the account of the Borrower at such
office with such proceeds in Dollars.
(b The Swing Line Loans shall be evidenced by a promissory
note of the Borrower substantially in the form of Exhibit A-2, with appropriate
insertions (as the same may be amended, supplemented, repaid or otherwise
modified from time to time, the "Swing Line Note"), payable to the order of the
Swing Line Lender and representing the obligation of the Borrower to pay the
amount of the Swing Line Commitment or, if less, the unpaid principal amount of
the Swing Line Loans, with interest thereon as prescribed in Section 4.1. The
Swing Line Lender is hereby authorized to record the Borrowing Date, the amount
of each Swing Line Loan and the date and amount of each payment or prepayment of
principal thereof, on its internal books and records and/or on the schedule
annexed to and constituting a part of the Swing Line Note and any such
recordation on such schedule shall constitute prima facie evidence of the
accuracy of the information so recorded, provided that the failure by the Swing
Line Lender to make any such recordation or any error in such recordation shall
not affect the obligations of the Borrower under this Agreement or the Swing
Line Note. The Swing Line Note shall (a) be dated the Effective Date, (b) be
stated to mature on the Termination Date and (c) provide for the payment of
interest in accordance with Section 4.1. The Borrower shall repay all
outstanding Swing Line Loans on the Termination Date or such earlier date as the
Swing Line Commitment shall terminate as provided herein.
(c The Swing Line Lender, at any time in its sole and absolute
discretion may, and, at any time as there shall be a Swing Line Loan outstanding
for more than seven Business Days, the Swing Line Lender shall, on behalf of the
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each Lender, including the Swing Line Lender, to
make a Revolving Credit Loan in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the principal amount of the Swing Line Loans
(the "Refunded Swing Line Loans") outstanding on the date such notice is given;
provided that the provisions of this Section shall not affect the Borrower's
obligations to prepay Swing Line Loans in accordance with the provisions of
Section 4.4(c). Unless the Revolving Credit Commitments shall have expired or
terminated (in which event the procedures of paragraph (d) of this Section 2.5
shall apply), each Lender will make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(d If the Revolving Credit Commitments shall expire or
terminate at any time while Swing Line Loans are outstanding, each Lender shall,
at the option of the Swing Line Lender exercised reasonably, either (i)
notwithstanding the expiration or termination of the Revolving Credit
Commitments, make a Revolving Credit Loan or (ii) purchase an undivided
participating interest in such Swing Line Loans, in either case in an amount
equal to such Lender's Revolving Credit Commitment Percentage determined on the
date of, and immediately prior to, expiration or termination of the Revolving
Credit Commitments of the aggregate principal amount of such Swing Line Loans.
Each Lender will make the proceeds of any Revolving Credit Loan made pursuant to
the immediately preceding sentence available to the Administrative Agent for the
account of the Swing Line Lender at the office of the Administrative Agent prior
to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date on which the Revolving Credit Commitments
expire or terminate. The proceeds of
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such Revolving Credit Loans shall be immediately applied to repay the Swing Line
Loans outstanding on the date of termination or expiration of the Revolving
Credit Commitments. In the event that the Lenders purchase undivided
participating interests pursuant to the first sentence of this paragraph (d),
each Lender shall immediately transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation and upon receipt thereof the
Swing Line Lender will deliver to such Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
(e Whenever, at any time after the Swing Line Lender has
received from any Lender such Lender's participating interest in a Swing Line
Loan, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded); provided, however, that in the event that such payment received by
the Swing Line Lender is required to be returned, such Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender to it.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue letters of credit for the account
of the Borrower on any Business Day during the Revolving Credit Commitment
Period in such form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any Letter of
Credit if, after giving effect to such issuance, (i) the L/C Obligations would
exceed the L/C Commitment or (ii) the Aggregate Outstanding Revolving Extensions
of Credit of all the Lenders would exceed the aggregate Revolving Credit
Commitments of all the Lenders. Each Letter of Credit shall (i) be denominated
in Dollars and shall be a letter of credit issued to support (I) obligations of
the Borrower or any of its Subsidiaries, contingent or otherwise, which finance
the working capital and business needs of the Borrower and its Subsidiaries or
(II) performance obligations of the Borrower and its Subsidiaries, in each case,
incurred in the ordinary course of business (a "Letter of Credit"), (ii) expire
no later than the Termination Date, and (iii) expire no later than 365 days
after its date of issuance.
(b Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender, at its address for notices specified
herein, an Application therefor, completed to the reasonable satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request. Upon receipt of any
Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower, and notify
the Lenders of the issuance of such Letter of Credit, promptly following the
issuance thereof.
3.3 Commissions and Other Charges. (a) The Borrower shall pay
to the Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit commission with respect to each Letter of
Credit, computed for the period from and including the date of issuance of such
Letter of Credit to the expiration date of such Letter of Credit, computed at a
rate per annum equal to the Applicable Margin in effect for
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Revolving Credit Loans that are Eurodollar Loans, calculated on the basis of a
365- (or 366-, as the case may be) day year, of the aggregate amount available
to be drawn under such Letter of Credit, payable (without duplication) quarterly
in arrears on each L/C Fee Payment Date to occur while such Letter of Credit
remains outstanding and on the expiration date of such Letter of Credit and the
Termination Date. Such commission shall be payable to the Administrative Agent
for the account of the Revolving Credit Lenders to be shared ratably among them
in accordance with their respective Revolving Credit Commitment Percentages. The
Borrower shall also pay to the Administrative Agent, for the account of the
Issuing Lender, a fee equal to 3 of 1% per annum of the aggregate amount
available to be drawn under each Letter of Credit issued for the account of the
Borrower payable quarterly in arrears on each L/C Fee Payment Date to occur
while such Letter of Credit remains outstanding and on the expiration date of
such Letter of Credit. Such commission shall be nonrefundable.
(b In addition to the foregoing commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent for their respective accounts
pursuant to this Section 3.3.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage (determined on the date of
issuance of the relevant Letter of Credit) in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with Section 3.5(a), such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing Lender's
address for notices specified herein an amount equal to such L/C Participant's
Revolving Credit Commitment Percentage of the amount of such draft, or any part
thereof, which is not so reimbursed.
(b If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate, as quoted by the Issuing Lender, during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any
L/C Participant pursuant to Section 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to ABR Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section 3.4 shall be conclusive in the absence
of manifest error.
(c Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of Collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will, if such payment is received prior to 12:00 Noon, New York
City time, on a Business Day, distribute to such L/C Participant its pro rata
share thereof prior to the end of such Business Day and otherwise the Issuing
Lender will distribute such payment on the next succeeding Business Day;
provided, however, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the
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Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender, upon receipt of notice from the Issuing
Lender of the date and amount of a draft presented under any Letter of Credit
and paid by the Issuing Lender, for the amount of (i) such draft so paid and
(ii) any taxes, fees, charges or other costs or expenses incurred by the Issuing
Lender in connection with such payment. Each such payment shall be made to the
Issuing Lender, at its address for notices specified herein in Dollars and in
immediately available funds, on the date on which the Borrower receives such
notice, if received prior to 11:00 A.M., New York City time, on a Business Day
and otherwise on the next succeeding Business Day. The Issuing Lender shall
notify the Lenders promptly after the presentation of any draft under any Letter
of Credit.
(b Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this Section 3 (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which the
Borrower is required to pay such amounts pursuant to paragraph (a) above at the
rate which would then be payable on any outstanding ABR Loans and (ii)
thereafter until payment in full at the rate which would be payable on any
outstanding ABR Loans which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender or
any beneficiary of a Letter of Credit, provided, that this paragraph shall not
relieve the Issuing Lender of any liability resulting from the gross negligence
or willful misconduct of the Issuing Lender, or otherwise affect any defense or
other right that the Borrower may have as a result of any such gross negligence
or willful misconduct.
(b The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or (ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee, provided, that this
paragraph shall not relieve the Issuing Lender of any liability resulting from
the gross negligence or willful misconduct of the Issuing Lender, or otherwise
affect any defense or other right that the Borrower may have as a result of any
such gross negligence or willful misconduct.
(c The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing Lender's gross negligence
or willful misconduct.
(d The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit,
provided, that this paragraph shall not relieve the Issuing Lender of any
liability resulting from the gross negligence or willful misconduct of the
Issuing Lender, or otherwise affect any defense or other right that the Borrower
may have as a result of any such gross negligence or willful misconduct.
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3.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
(b Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
Applicable Margin in effect for such day.
(c If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this Section 4.1 plus 2% or (y) in the case of overdue interest, commitment fee
or other amount, the rate described in paragraph (b) of this Section 4.1 plus
2%, in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(d Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section 4.1 shall be payable from time to time on demand.
4.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert outstanding Revolving Credit Loans from
Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time to convert
outstanding Revolving Credit Loans from ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each affected Lender thereof. All or any part of outstanding Eurodollar Loans
and ABR Loans may be converted as provided herein, provided that (i) no Loan may
be converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the Administrative Agent has given notice to the
Borrower that no such conversions may be made and (ii) no Loan may be converted
into a Eurodollar Loan after the date that is one month prior to the Termination
Date.
(b Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, of the length of the next
Interest Period to be applicable to such Loans, determined in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
1.1, provided that no Eurodollar Loan may be continued as such (i) when any
Default or Event of Default has occurred and is continuing and the
Administrative Agent has given notice to the Borrower that no such continuations
may be made or (ii) after the date that is one month prior to the Termination
Date, and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
4.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Tranche shall be equal to $2,500,000 or a whole
multiple of $500,000 in excess thereof and so that there shall not be more than
10 Tranches at any one time outstanding.
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4.4 Optional and Mandatory Prepayments. (a) The Borrower may
at any time and from time to time prepay the Loans, in whole or in part, without
premium or penalty, upon at least three Business Days' irrevocable notice to the
Administrative Agent (in the case of Eurodollar Loans) and at least one Business
Day's irrevocable notice to the Administrative Agent (in the case of ABR Loans),
specifying the date and amount of prepayment and whether the prepayment is (i)
of Revolving Credit Loans or Swing Line Loans, or a combination thereof, and
(ii) of Eurodollar Loans, ABR Loans or a combination thereof, and, in each case
if a combination thereof, the amount allocable to each; provided that, if a
Eurodollar Loan is prepaid other than at the end of the Interest Period
applicable thereto, the Borrower shall also pay any amounts required to be paid
pursuant to Section 4.12. Upon the receipt of any such notice the Administrative
Agent shall promptly notify each affected Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to Section 4.12.
Partial prepayments of all Loans and the Letters of Credit shall be applied
first, to payment of the Swing Line Loans then outstanding, second, to payment
of the Revolving Credit Loans then outstanding, third, to payment of any
Reimbursement Obligations then outstanding and last, to cash collateralize any
outstanding L/C Obligation on terms reasonably satisfactory to the
Administrative Agent. Partial prepayments shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof. Amounts prepaid may be
reborrowed up to the amount of the Available Revolving Credit Commitments.
(b If, at any time during the Revolving Credit Commitment
Period, the sum of the Aggregate Outstanding Revolving Extensions of Credit of
all of the Lenders (including the Swing Line Lender) exceeds the aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately repay the Revolving Credit Loans and the Swing Line Loans
in an aggregate principal amount equal to such excess, together with interest
accrued to the date of such payment or prepayment and any amounts payable under
Section 4.12. To the extent that after giving effect to any prepayment of the
Loans required by the preceding sentence, the sum of the Aggregate Outstanding
Revolving Extensions of Credit of all of the Lenders exceeds the aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately cash collateralize the then outstanding L/C Obligations
in an amount equal to such excess upon terms reasonably satisfactory to the
Administrative Agent.
(c The Borrower shall prepay all Swing Line Loans then
outstanding simultaneously with each borrowing of Revolving Credit Loans and may
prepay (without premium or penalty) any outstanding Swing Line Loans upon
same-day notice to the Administrative Agent.
(d Unless the Required Lenders shall otherwise agree in
writing, on the date which is the earlier of (x) 15 days after the date on which
a Specified Change of Control occurs and (y) the date on which the Borrower
shall have offered to repurchase any Subordinated Notes as a result of such
Specified Change of Control, the Borrower shall (i) terminate the Revolving
Credit Commitments and prepay in full any Revolving Credit Loans and Swing Line
Loans then outstanding, (ii) repay any Reimbursement Obligations then
outstanding and (iii) cash collateralize any outstanding L/C Obligations on
terms reasonably satisfactory to the Administrative Agent.
4.5 Commitment Fees; Fees of Other Representatives and
Administrative Agent; Other Fees (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, a commitment fee for the
period from and including the first day of the Revolving Credit Commitment
Period to the Termination Date, computed at the Commitment Fee Rate on the
average daily amount of the Available Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination Date
or such earlier date as the Revolving Credit Commitments shall terminate as
provided herein, commencing on the Effective Date.
(b) The Borrower shall pay to each of the Administrative Agent
and the Other Representatives for its account and, as specified therein, for the
account of the Lenders, the other fees required to be paid pursuant to (i) the
Commitment Letter, dated March 8, 2000, among the Administrative Agent, the
Other Representatives and the
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Borrower and (ii) the Fee Letter, dated March 8, 2000, among the Administrative
Agent, the Other Representatives and the Borrower, in each case in the amounts
and on the dates set forth therein.
4.6 Computation of Interest and Fees. (a) Interest (other than
interest based on the Prime Rate) shall be calculated on the basis of a 360-day
year for the actual days elapsed; and commitment fees and interest based on the
Prime Rate shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the affected Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR, the Eurocurrency Reserve Requirements, the
C/D Assessment Rate or the C/D Reserve Percentage shall become effective as of
the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
affected Lenders of the effective date and the amount of each such change in
interest rate.
(b Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate
pursuant to Section 4.1, excluding any Eurodollar Base Rate which is based upon
the Telerate British Bankers Assoc. Interest Settlement Rates Page and any ABR
which is based upon the Prime Rate.
4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period, the Administrative Agent shall have determined
(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 Eurodollar 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. If
such notice is given (x) any Eurodollar Loans requested to be made on the first
day of such Interest Period shall be made as ABR Loans, (y) any Loans that were
to have been converted on the first day of such Interest Period to or continued
as Eurodollar Loans shall be converted to or continued as ABR Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
Loans (other than Swing Line Loans) by the Borrower from the Lenders hereunder
shall be made, each payment by the Borrower on account of any commitment fee
hereunder shall be allocated by the Administrative Agent, and any reduction of
the Commitments of the Lenders shall be allocated by the Administrative Agent,
according to the Revolving Credit Commitment Percentages of the Lenders. Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on any Revolving Credit Loans shall be allocated by the
Administrative Agent according to the respective outstanding principal amounts
of such Revolving Credit Loans then held by the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder and under any Notes, whether
on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim and shall be made prior to 1:00 P.M., New York City
time, on the due date thereof to the Administrative Agent, for the account of
the Lenders holding such Notes, at the Administrative Agent's office specified
in Section 11.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to such Lenders, if any such
payment is received prior to 12:00 Noon, New York City time, on a Business Day,
in like funds as received prior to the end of such Business Day and otherwise
the Administrative Agent shall distribute such payment to such Lenders on the
next succeeding Business Day. If any payment hereunder (other than payments on
the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, the maturity of such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment on
a Eurodollar Loan becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day (and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
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(b Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this Section 4.8(b) shall be conclusive in
the absence of manifest error. If such Lender's share of such borrowing is not
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, (x) the Administrative Agent shall notify the
Borrower of the failure of such Lender to make such amount available to the
Administrative Agent and the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower and (y) then the Borrower may,
without waiving any rights it may have against such Lender, borrow a like amount
on an unsecured basis from any commercial bank for a period ending on the date
upon which such Lender does in fact make such borrowing available, provided that
at the time such borrowing is made and at all times while such amount is
outstanding the Borrower would be permitted to borrow such amount pursuant to
Section 2.1 of this Agreement.
4.9 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 date hereof shall make it unlawful
for any Lender to make or maintain Eurodollar Loans as contemplated by this
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 Eurodollar Loans, continue Eurodollar Loans as
such and convert an ABR Loan to Eurodollar Loans shall forthwith be cancelled
and, until such time as it shall no longer be unlawful for such Lender to make
or maintain Eurodollar Loans, such Lender shall then have a commitment only to
make ABR Loans when a Eurodollar Loan is requested and (c) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to ABR Loans on the respective last days of 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 Eurodollar 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
4.12(c).
4.10 Requirements of Law. (a) 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 date hereof
(or, if later, the date on which such Lender becomes a Lender):
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Application or any
Eurodollar Loans made by it or its obligation to make Eurodollar Loans,
or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 4.11
(including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations under Section 4.11(b))
and changes in taxes measured by or imposed upon the overall net
income, or franchise taxes, or taxes on overall capital or net worth,
or branch taxes (in the case of such capital, net worth or branch
taxes, imposed in lieu of overall net income taxes), of such Lender or
its applicable lending office, branch, or any affiliate thereof);
(ii) 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
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
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(iii) 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 Eurodollar 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
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable,
provided that, in any such case, the Borrower may elect to convert the
Eurodollar Loans made by such Lender hereunder to ABR 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
4.12(c). If any Lender becomes entitled to claim any additional amounts pursuant
to this Section 4.10(a), it shall provide prompt notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events
described in this Section 4.10(a) 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
4.10(a) submitted by such Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority, in each case, made subsequent to the date hereof (or, if later, the
date on which such Lender becomes a Lender), does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, within ten Business Days
after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor certifying (x) that one of
the events described in this Section 4.10(b) has occurred and describing in
reasonable detail the nature of such event, (y) as to the reduction of the rate
of return on capital resulting from such event and (z) as to the additional
amount or amounts demanded by such Lender and a reasonably detailed explanation
of the calculation thereof, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
4.11 Taxes. (a) Except as provided below in this Section 4.11,
all payments made by the Borrower under this Agreement and the Notes shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding 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 affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Agreement or the Notes. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to any Other Representatives, the Administrative Agent or any Lender
hereunder or under the Notes, the amounts so payable to such Other
Representatives, the Administrative Agent or such Lender shall be increased to
the extent necessary to yield to such Other Representatives, the
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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 Agreement and the Notes, provided, however, that the
Borrower 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 4.11. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to such Other
Representatives or 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 the Borrower showing payment thereof. If the
Borrower 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, the Borrower shall indemnify, each Other
Representative, the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by such Other
Representatives, the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section 4.11(a) shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(X) (i) on or before the date of any payment by the Borrower
under this Agreement or the Notes to such Lender, deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes and (B) 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;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) 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
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) 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, (ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent,
(A) a certificate substantially in the form of Exhibit D hereto (any
such certificate a "U.S. Tax Compliance Certificate" and (B) 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
Agreement (and to deliver to 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 Agent for
filing and completing such forms), and (iii) 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 Agreement;
unless in any such case 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
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Administrative Agent. Each Person that shall become a Lender or a Participant
pursuant to Section 11.6 shall, upon the effectiveness of the related transfer,
be required to provide all of the forms, certifications and statements required
pursuant to this Section 4.11(b), provided that in the case of a Participant the
obligations of such Participant pursuant to this Section 4.11(b) shall be
determined as if the Participant were a Lender except that such Participant
shall furnish all such required forms, certifications and statements to the
Lender from which the related participation shall have been purchased.
4.12 Indemnity. The Borrower agrees 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 Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of a Eurodollar Loan after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment 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 Eurodollar Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (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 eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
4.13 Certain Rules Relating to the Payment of Additional
Amounts. (a) Upon the request, and at the expense, of the Borrower, each Lender
to which the Borrower is required to pay any additional amount pursuant to
Section 4.10 or 4.11, and any Participant in respect of whose participation such
payment is required, shall reasonably afford the Borrower the opportunity to
contest, and reasonably cooperate with the Borrower in contesting, the
imposition of any Non-Excluded Tax giving rise to such payment; provided that
(i) such Lender shall not be required to afford the Borrower the opportunity to
so contest unless the Borrower shall have confirmed in writing to such Lender
its obligation to pay such amounts pursuant to this Agreement and (ii) the
Borrower shall reimburse such Lender for its reasonable attorneys' and
accountants' fees and disbursements incurred in so cooperating with the Borrower
in contesting the imposition of such Non-Excluded Tax.
(b) If a Lender changes its applicable lending office (other
than pursuant to paragraph (c) below) and the effect of the change, as of the
date of the change, would be to cause the Borrower to become obligated to pay
any additional amount under Section 4.10 or 4.11, the Borrower shall not be
obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would
upon the passage of time or giving of notice, result in the payment of any
additional amount to any Lender by the Borrower pursuant to Section 4.10 or
4.11, such Lender shall promptly notify the Borrower and the Administrative
Agent and shall take such steps as may reasonably be available to it and
acceptable to the Borrower to mitigate the effects of such condition or event
(which shall include efforts to rebook the Loans held by such Lender at another
lending office, or through another branch or an affiliate, of such Lender);
provided that such Lender shall not be required to take any step that, in its
reasonable judgment, would be materially disadvantageous to its business or
operations or would require it to incur additional costs (unless the Borrower
agrees to reimburse such Lender for the reasonable incremental out-of-pocket
costs thereof).
(d) If the Borrower shall become obligated to pay additional
amounts pursuant to Section 4.10 or 4.11 and any affected Lender shall not have
promptly taken steps necessary to avoid the need for payments under Section 4.10
or 4.11, the Borrower shall have the right, for so long as such obligation
remains, (x) with the assistance of the Administrative Agent, to seek one or
more substitute Lenders reasonably satisfactory to the
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Administrative Agent and the Borrower to purchase the affected Loan, in whole or
in part, at an aggregate price no less than such Loan's principal amount plus
accrued interest, and assume the affected obligations under this Agreement, or
(y) upon at least four Business Days irrevocable notice to the Administrative
Agent, to prepay the affected Loan, in whole or in part, subject to Section
4.12, without premium or penalty. In the case of the substitution of a Lender,
the Borrower, the Administrative Agent, the affected Lender, and any substitute
Lender shall execute and deliver an appropriately completed Assignment and
Acceptance pursuant to Section 11.6(c) to effect the assignment of rights to,
and the assumption of obligations by, the substitute Lender. In the case of a
prepayment of an affected Loan, the amount specified in the prepayment notice
shall be due and payable on the date specified therein, together with any
accrued interest to such date on the amount prepaid. No such substitution or
prepayment shall affect the obligation of the Borrower to pay the relevant
additional amounts pursuant to Section 4.10 or 4.11 with respect to the period
prior to such substitution or prepayment, as the case may be.
(e) The obligations of a Lender or Participant under this
Section 4.13 shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
(f) For purposes of Sections 4.10 and 4.11, a change in
treaty, law, rule or regulation shall not include the approval or the entry into
force of the proposed income tax treaty between the United States and The
Netherlands signed in December 1992 as amended by the protocol signed in October
1993 and as interpreted by the notes exchanged in connection with such protocol
in October 1993.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Other Representatives
and the Lenders to enter into this Agreement and to induce the Lenders to make
the Loans and issue or participate in the Letters of Credit, the Borrower hereby
represents and warrants to the Administrative Agent, each Other Representative
and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance
sheets of Holding as of December 31, 1998 and December 31, 1999, respectively,
and the audited consolidated statements of operations, cash flows and
shareholders' equity for the years ended December 31, 1998 and December 31,
1999, respectively, provided by Holding have heretofore been furnished to each
Lender. Such financial statements (including the notes thereto) (i) have been
audited by PricewaterhouseCoopers LLP, (ii) have been prepared in accordance
with GAAP consistently applied throughout the periods covered thereby and (iii)
present fairly, in all material respects, the financial condition, results of
operations, cash flows and shareholders' equity of Holding as of such dates and
for such periods. During the period from December 31, 1999 to and including the
date hereof, except as disclosed on Schedule 5.1(a), there has been no sale,
transfer, lease to others or other disposition of any material part of the
assets of Holding and its Subsidiaries other than inventory sold in the ordinary
course of business and other non-material assets sold or disposed of in the
ordinary course of business which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders.
(b) As of the Effective Date, neither Holding nor any of its
consolidated Subsidiaries has any material Guarantee Obligation, material
contingent liability or material liability for taxes, or any long-term material
lease or material unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other financial derivative.
5.2 No Change; Solvent. Since December 31, 1999 (a) except as
disclosed on Schedule 5.2(a), there has been no development or event which has
had or would be reasonably expected to have a Material Adverse Effect and (b)
except as permitted under this Agreement, no dividends or other distributions
have been declared, paid or made upon the Capital Stock of Holding or the
Borrower nor has any of the Capital Stock of Holding or the Borrower been
redeemed, retired, purchased or otherwise acquired for value by Holding (except
as to the Borrower), the Borrower or any of its Subsidiaries. As of the
Effective Date, after giving effect to (i) the consummation of the Transaction,
(ii) the making of Loans to be made on the Effective Date, and (iii) the payment
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of estimated fees, expenses and financing costs related to the Transaction and
the transactions contemplated hereby, the Borrower is Solvent.
5.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged except to the extent that the failure
to have such legal right would not be reasonably expected to have a Material
Adverse Effect, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing would not be reasonably expected to have a
Material Adverse Effect, and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit hereunder on the terms and conditions
of this Agreement, the Notes and the Applications and to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required to be
obtained or made by or on behalf of the Borrower in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party, except
(i) for consents, authorizations, notices and filings described in Schedule 5.4,
all of which have been obtained or made or have the status described on such
Schedule 5.4, (ii) for filings to perfect or enforce the Liens created by the
Security Documents, (iii) for filings pursuant to the Assignment of Claims Act
of 1940, as amended (31 U.S.C. ' 3727 et seq.) in respect of Accounts of the
Borrower the Obligor of which is the United States of America or any department,
agency or instrumentality thereof and (iv) consents, authorizations, notices and
filings which the failure to obtain or make would not reasonably be expected to
have a Material Adverse Effect. This Agreement has been, and each other Loan
Document to which it is a party will be, duly executed and delivered on behalf
of the Borrower. This Agreement constitutes, and each other Loan Document to
which it is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents to which the Borrower is a party, the borrowings hereunder
and the use of the proceeds thereof (a) will not violate any Requirement of Law
or Contractual Obligation of the Borrower or of any of its Subsidiaries in any
respect that would reasonably be expected to have a Material Adverse Effect and
(b) will not result in, or require, the creation or imposition of any Lien
(other than the Liens created by the Security Documents) on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
5.6 No Material Litigation. Except as set forth on Schedule
5.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against Holding, the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues which is not
subject to indemnification by the Seller pursuant to the Purchase Agreement (a)
with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which would be reasonably expected to
have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Except as described on
Schedule 5.8, each of the Borrower and its Subsidiaries has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
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material real property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is subject to any Lien,
except for Liens permitted by Section 8.3.
5.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or has the legal right to use, all United States patents,
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for the conduct of its business as currently
conducted except for those the failure to own or have such legal right to use
would not be reasonably expected to have a Material Adverse Effect. 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 the Borrower know of any such claim, and to the
knowledge of the Borrower, the use of such Intellectual Property by the Borrower
and its Subsidiaries does not infringe on the rights of any Person, except for
such claims and infringements that in the aggregate, would not be reasonably
expected to have a Material Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law (other
than Environmental Laws) or Contractual Obligation of the Borrower or any of its
Subsidiaries would be reasonably expected to have a Material Adverse Effect.
5.11 Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all United States federal income tax returns and all
other material tax returns which, to the knowledge of the Borrower, are required
to be filed and has paid (a) all taxes shown to be due and payable on said
returns or (b) all taxes shown to be due and payable on any assessments of which
it has received notice made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any (i) taxes, fees or other charges with
respect to which the failure to pay, in the aggregate, would not have a Material
Adverse Effect or (ii) taxes, fees or other charges the amount or validity of
which are currently being contested in good faith by appropriate proceedings
diligently conducted and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or its Subsidiaries, as the case
may be); and no tax Lien has been filed, and, to the knowledge of the Borrower,
no claim is being asserted, with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
5.13 ERISA. During the five year period prior to each date as
of which this representation is made, or deemed made, with respect to any Plan,
(or, with respect to clause (vi) or (viii) below, as of the date such
representation is made or deemed made), none of the following events or
conditions, either individually or in the aggregate, has resulted or is
reasonably likely to result in a liability to the Borrower which would be
reasonably expected to have a Material Adverse Effect: (i) a Reportable Event;
(ii) an "accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA); (iii) any material noncompliance with the
applicable provisions of ERISA or the Code; (iv) a termination of a Single
Employer Plan (other than a standard termination pursuant to Section 4041(b) of
ERISA); (v) a Lien in favor of the PBGC or a Plan; (vi) Underfunding with
respect to any Single Employer Plan; (vii) a complete or partial withdrawal from
any Multiemployer Plan by the Borrower or any Commonly Controlled Entity; (viii)
any liability of the Borrower or any Commonly Controlled Entity under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the annual valuation date most closely
preceding the date on which this representation is made or deemed made; (ix) the
Reorganization or Insolvency of any Multiemployer Plan; and (x) the excess of
the present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the aggregate liability of the Borrower or any of its subsidiaries for
post-retirement 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) over the assets under all such Plans; and (xi) an event or condition with
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respect to which the Borrower or any Commonly Controlled Entity could incur any
liability in respect of a Former Plan.
5.14 Collateral. Except with respect to (i) Liens on equipment
constituting fixtures, (ii) any reserved rights of the United States government
as required under law, (iii) Liens upon Trademarks, Patents, Trademarks Licenses
and Patent Licenses as defined in the Patent and Trademark Security Agreement to
the extent that (a) such Liens cannot be perfected by the filing of financing
statements under the Uniform Commercial Code or by the filing, acceptance and
recording thereof in the United States Patent and Trademark Office or (b) such
Trademarks, Patents, Trademark Licenses and Patent Licenses are not,
individually or in the aggregate, material to the business of the Borrower and
its Subsidiaries taken as a whole, (iv) Liens on uncertificated securities, (v)
Liens on Collateral the perfection of which requires filings in or other actions
under the laws of jurisdictions outside of the United States of America, any
State, territory or dependency thereof or the District of Columbia (except to
the extent that such filings or other actions have been made or taken), (vi)
Liens on contracts or Receivables on which the United States of America or any
department, agency or instrumentality thereof is the obligor, (vii) Liens on
Proceeds of Receivables and Inventory, until transferred to or deposited in the
collateral proceeds account (if any), except to the extent otherwise provided in
Section 9-306 of the Uniform Commercial Code or other similar law, and (viii)
claims of creditors of Persons receiving goods included as Collateral for "sale
or return" within the meaning of Section 2-326 of the Uniform Commercial Code of
the applicable jurisdiction, upon filing of the financing statements delivered
to the Administrative Agent by the Borrower and its Subsidiaries on the
Effective Date in the jurisdictions listed on Schedule 6.1(e) (which financing
statements are in proper form for filing in such jurisdictions) and the
recording of any mortgages (and the recording of the Patent and Trademark
Security Agreement, and the making of filings after the Effective Date in any
other jurisdiction as may be necessary under any Requirement of Law) and the
delivery to, and continuing possession by, the Administrative Agent of all
Chattel Paper, Contracts, Documents and Instruments a security interest in which
is perfected by possession, the Liens created pursuant to each Security
Document, when executed and delivered, will constitute valid Liens on and , to
the extent provided therein, perfected security interests in the collateral
referred to in such Security Document (but as to the Copyrights and the
Copyrights Licenses and accounts arising therefrom, only to the extent the
Uniform Commercial Code of the relevant jurisdiction, from time to time in
effect, is applicable) in favor of Administrative Agent for the ratable benefit
of the Lenders, which Liens will be prior to all other Liens of all other
Persons, except for Liens permitted pursuant to the Loan Documents (including,
without limitation, those permitted to exist pursuant to subsection 8.3), and
which Liens are enforceable as such as against all other Persons (except, with
respect to goods only, buyers in the ordinary course of business to the extent
provided in section 9-307(1) of the Uniform Commercial Code as from time to time
in effect in the applicable jurisdiction, and except to the extent that the
recording of an assignment or other transfer to title to the Administrative
Agent in the United States Patent and Trademark Office may be necessary for such
enforceability), except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
Notwithstanding any other provision of this Agreement, capitalized terms which
are used in this subsection 5.14 and not defined in this Agreement are so used
as defined in the Borrower Security Agreement.
5.15 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness as contemplated
hereby.
5.16 Subsidiaries. Schedule 5.16 sets forth all the
Subsidiaries of the Borrower as of the date hereof, the jurisdiction of their
incorporation and the direct or indirect ownership interest of the Borrower
therein.
5.17 Purpose of Loans. The proceeds of the Loans shall be used
by the Borrower to (a) refinance the Borrower's Existing Credit Facility, (b)
pay the Closing Dividend and (c) finance the working capital and business
requirements (together with any other business activities not prohibited by this
Agreement) of the Borrower and its Subsidiaries.
5.18 Environmental Matters. Except as disclosed in Schedule
5.18:
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(a) To the best knowledge of Borrower, after diligent inquiry,
the facilities and properties owned, leased or operated by the Borrower or any
of its Subsidiaries (the "Properties") and all operations at the Properties are
in compliance with all applicable Environmental Laws, and there is no violation
of any Environmental Law with respect to the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "Business"), and there are no
conditions relating to the Business or Properties that would be reasonably
likely to give rise to liability under any applicable Environmental Law, except
for any failure so to comply or violation or condition that would not be
reasonably likely to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of Borrower, after diligent inquiry,
the Properties do not contain, and have not previously contained, any Materials
of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could
reasonably give rise to liability under, Environmental Laws except insofar as
the presence of any Materials of Environmental Concern is not reasonably likely
to result in the payment of a Material Environmental Amount.
(c) Neither the Borrower nor any of its Subsidiaries has
received any written or verbal notice of, or inquiry from any Governmental
Authority, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower have knowledge or reason to believe that any such notice will
be received or is being threatened, except insofar as such notice or threatened
notice, or any aggregation thereof, does not involve a matter or matters that is
or are reasonably likely to result in the payment of a Material Environmental
Amount.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties, or generated, treated, stored or
disposed of by or on behalf of the Borrower or any Subsidiary at, on or under
any of the Properties or any other location in violation of, or in a manner that
would be reasonably likely to give rise to liability under, any applicable
Environmental Law, except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in the payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary 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 the
Borrower, any Subsidiary, the Properties or the Business, except insofar as such
proceeding, action, decree, order or other requirement, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(f) There has been no release or, to the best knowledge of
Borrower, after diligent inquiry, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that would be reasonably
likely to give rise to liability under Environmental Laws, except insofar as any
such violation or liability referred to in this paragraph, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
5.19 Accuracy of Information. No statement or information
(other than projections, forecasts and pro forma financial information)
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished prior to the Effective Date to the
Administrative Agent, the Other Representatives or the Lenders or any of them,
by or on behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained, when
taken together with all other statements and information so furnished prior to
the Effective Date, any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon
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good faith estimates and assumptions believed by management of the Borrower to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein. As of the
Effective Date, there is no fact known to the Borrower (other than matters of a
general economic nature or otherwise relating to general market conditions) that
would reasonably be expected to have a material adverse effect on the business,
operations, property, condition (financial or otherwise) or prospects of
Holding, the Borrower and its Subsidiaries taken as a whole that has not been
expressly disclosed herein, in the other Loan Documents, or in such other
documents, certificates and statements furnished to the Administrative Agent,
the Other Representatives and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. The agreement
of each Lender to make the initial Extension of Credit requested to be made by
it is subject to the satisfaction or waiver, immediately prior to or
concurrently with the making of such Extension of Credit on the Effective Date,
of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender,
(ii) for the account of each Lender, a Revolving Credit Note conforming
to the requirements hereof and executed by a duly authorized officer of
the Borrower, (iii) for the account of the Swing Line Lender, a Swing
Line Note conforming to the requirements hereof and executed by a duly
authorized officer of the Borrower, (iv) the Holding Stock Pledge
Agreement, executed and delivered by a duly authorized officer of the
party thereto, with a conformed copy for each Lender (together with
acknowledgements and consents from each of the issuers of stock pledged
thereunder duly executed and delivered by a duly authorized officer of
each such issuer), (v) the Holding Guarantee, executed and delivered by
a duly authorized officer of the party thereto, with a conformed copy
for each Lender, (vi) the Borrower Security Agreement, executed and
delivered by a duly authorized officer of the party thereto, with a
conformed copy for each Lender, (vii) the Borrower Patent and Trademark
Security Agreement, executed and delivered by a duly authorized officer
of the parties thereto, with a conformed copy for each Lender, (viii)
the Borrower Stock Pledge Agreement, executed and delivered by a duly
authorized officer of the parties thereto, with a conformed copy for
each Lender, and (ix) each Mortgage, executed and delivered by a duly
authorized officer of the parties thereto, with a conformed copy for
each Lender.
(b) Termination of Existing Credit Facility: The loans
outstanding, the revolving credit commitments and the reducing
revolving credit commitments under the Existing Credit Facility shall
have been terminated and all Indebtedness outstanding thereunder shall
be paid in full concurrently with the Loans on the Closing Date
(c) Financial Information. The Lenders shall have received,
prior to the Effective Date, copies of (i) audited consolidated
statements of operations, cash flow and shareholders' equity of Holding
for fiscal years ending December 31, 1998 and December 31, 1999, and
audited consolidated balance sheets of Holding as at December 31, 1998
and December 31, 1999, prepared in accordance with GAAP, accompanied by
a report of PricewaterhouseCoopers LLP, (ii) unaudited interim
statements of operations and cash flow and an unaudited consolidated
balance sheet of Holding for the two-month period ended on February 29,
2000.
(d) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of a Responsible Officer of the Borrower stating that all consents,
authorizations, notices and filings referred to in Schedule 5.4 are in
full force and effect or have the status described in such Schedule
5.4, and the Administrative Agent shall have received evidence thereof
reasonably satisfactory to it.
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(e) Lien Searches. The Administrative Agent shall have
received the results of a recent search commenced after March 1, 2000
by a Person reasonably satisfactory to the Administrative Agent, of the
Uniform Commercial Code, judgment and tax lien filings which may have
been filed with respect to personal property of the Borrower and its
Subsidiaries in any of the jurisdictions set forth in Schedule 6.1(e),
and the results of such search shall be reasonably satisfactory to the
Administrative Agent.
(f) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of Debevoise &
Plimpton, special counsel to the Borrower and the other Loan
Parties, substantially in the form of Exhibit G-1; and
(ii) the executed legal opinion of each local
counsel of the Borrower listed on Schedule 6.1(f), with
respect to collateral security matters, substantially in the
form of Exhibit G-2.
In addition, the Administrative Agent shall have received a
certificate, with supporting calculations, from the chief financial
officer of the Borrower stating that the execution and delivery of this
Agreement and the borrowings contemplated hereby and the Closing
Dividend payment comply with the Subordinated Note Indenture.
(g) Actions to Perfect Liens. All filings, recordings,
registrations and other actions, including, without limitation, the
filing of duly executed financing statements on form UCC-1 in each
jurisdiction set forth on Schedule 6.1(e), necessary or, in the
reasonable opinion of the Administrative Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed
or shall in all respects be ready to be completed immediately following
the Effective Date, and all agreements, statements and other documents
relating thereto shall be in form and substance reasonably satisfactory
to the Administrative Agent.
(h) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing all of the Capital
Stock of the Borrower, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of
Holding.
(i) Fees. The Borrower shall have paid to the Administrative
Agent, the Other Representatives and the Lenders the fees to be
received on the Effective Date referred to in Section 4.5.
(j) Closing Certificate. The Administrative Agent shall have
received with a counterpart for each Lender, a certificate of each Loan
Party substantially in the form of Exhibit J hereto, dated the
Effective Date, executed and delivered by duly authorized officers of
such Loan Party and containing the relevant certifications and
attaching the relevant documents referred to in Sections 6.1(d), (m)
and (n).
(k) Corporate Proceedings of the Loan Parties. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance reasonably
satisfactory to the Administrative Agent, of the Board of Directors of
each Loan Party authorizing, as applicable, (i) the execution, delivery
and performance of this Agreement, the Notes and the other Loan
Documents to which it is or will be a party, (ii) the borrowings
contemplated hereunder and (iii) the granting by it of the Liens to be
created pursuant to the Security Documents to which it will be a party,
certified by the Secretary or an Assistant Secretary of such Person as
of the Effective Date.
(l) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, copies of the certificate
of incorporation and by-laws of each Loan Party, certified as of the
Effective Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary of such Loan Party.
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(m) Insurance. The Administrative Agent shall have received
evidence in form and substance reasonably satisfactory to it that all
of the requirements of Section 7.5, Section 5(m) of the Borrower
Security Agreement and the Subsidiaries Security Agreement and Section
5 of each Mortgage shall have been satisfied.
(n) Other Documents. The Administrative Agent and each Other
Representative shall have received such other corporate documents and
other instruments as it shall reasonably request.
6.2 Conditions to Each Other Extension of Credit. The
agreement of each Lender to make any Extension of Credit requested to be made by
it on any date (including, without limitation, the initial Extension of Credit
and each Swing Line Loan) is subject to the satisfaction or waiver of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party pursuant to this
Agreement or any other Loan Document (or in any amendment, modification
or supplement hereto or thereto) to which it is a party, and each of
the representations and warranties contained in any certificate
furnished at any time by or on behalf of any Loan Party pursuant to
this Agreement or any other Loan Document shall, except to the extent
that they relate to a particular date, be true and correct in all
material respects on and as of such date as if made on and as of such
date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Extensions of Credit requested to be made on such date.
Each borrowing by, and issuance of a Letter of Credit on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such borrowing or such issuance that the conditions contained in
this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, from and after the Effective
Date and so long as the Commitments remain in effect, and thereafter until
payment in full of the Notes, all Reimbursement Obligations and any other amount
then due and owing to any Lender, any Other Representative or the Administrative
Agent hereunder and termination or expiration of all Letters of Credit, the
Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event not later than 90
days after the end of each fiscal year of Holding, a copy of the audited
consolidated balance sheet of Holding and its consolidated Subsidiaries as at
the end of such year and the related audited consolidated statements of
operations, changes in stockholders' equity and cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing not unacceptable to the Required Lenders in their
reasonable judgment;
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each fiscal
year of Holding, the unaudited consolidated balance sheet of Holding and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations, changes in stockholders' equity
and cash flows of Holding and its consolidated Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth,
in the case of each such consolidated balance sheet and such consolidated
statements of operations and cash flows in comparative form the figures for the
corresponding period of the previous fiscal year, certified by a Responsible
Officer of Holding as being fairly stated in all material respects (subject to
normal year-end audit and other adjustments); and
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all such financial statements shall be (and, in the case of financial statements
delivered pursuant to Sections 7.1(a) and (b) above, shall be certified by a
Responsible Officer of Holding or the Borrower, as the case may be, as being)
complete and correct in all material respects in conformity with GAAP and shall
be (and, in the case of financial statements delivered pursuant to Sections
7.1(a) and (b) above, shall be certified by a Responsible Officer of Holding or
the Borrower, as the case may be, as being) prepared in reasonable detail in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein, and except, in the case of
the financial statements delivered pursuant to Sections 7.1(a) and (b), for the
absence of certain notes).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a) a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
audit necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) and (b), a certificate of a Responsible Officer
of the Borrower (i) stating that, to the best of such Officer's knowledge, the
Borrower during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition contained in this Agreement and
in the Notes and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Officer has obtained no knowledge of
any Default or Event of Default, except, in each case, as specified in such
certificate and (ii) setting forth the calculations required to determine (A)
compliance with the covenants set forth in Section 8.1 (in the case of a
certificate furnished with the financial statements referred to in Sections
7.1(a) and (b)) and (B) compliance with the covenant set forth in Section 8.9
(in the case of a certificate furnished with the financial statements referred
to in Section 7.1(a));
(c) concurrently with the delivery of the financial statements
referred to in Section 7.1(a) and the delivery of the financial statements for
the second fiscal quarter of Holding referred to in Section 7.1(b), a
certificate of a Responsible Officer of the Borrower (i) stating that, to the
best of such Officer's knowledge, except as specified in such certificate, the
Borrower and its Subsidiaries during such period have observed or performed all
of their respective environmental covenants and other agreements, and satisfied
every condition, contained in Sections 7.7(f) and 7.8 and (ii) describing in
reasonable detail the scope of any investigations, studies, sampling and testing
undertaken since the date of the most recent certificate delivered pursuant to
this Section 7.2(c), and all remedial, removal and other similar actions
conducted or taken by the Borrower or any of its Subsidiaries during such period
with respect to Materials of Environmental Concern;
(d) not later than 90 days after the beginning of each fiscal
year of the Borrower, a copy of the operating budget (on a quarter-by-quarter
basis) of the Borrower and its Subsidiaries for such fiscal year, such operating
budget to be accompanied by a certificate of a Responsible Officer of the
Borrower to the effect that such Responsible Officer believes such operating
budget to have been prepared on the basis of reasonable assumptions;
(e) within five Business Days after the same are sent, copies
of all financial statements and reports which Holding or the Borrower sends to
the holders of any class of its securities, and within five Business Days after
the same are filed, copies of all financial statements and periodic reports
which Holding or the Borrower may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(f) within five Business Days after the same are filed, copies
of all registration statements and any amendments and exhibits thereto, which
Holding or the Borrower may file with the Securities and Exchange Commission or
any successor or analogous Governmental Authority;
(g) concurrently with the delivery of the financial statements
referred to in Section 7.1(a) and (b), a certificate issued by a Responsible
Officer of the Borrower setting forth the necessary calculations required to
reflect the availability of dividends pursuant to Section 8.7(b), and (x) three
Business Days prior to any distribution proposed to be made under Section 8.7(b)
a certificate issued by a Responsible Officer of the Borrower (in this case
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a financial officer of the Borrower) setting forth the necessary calculations
required to reflect the availability of the proposed dividend pursuant to the
requirements of Section 8.7(b); and
(h) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings diligently conducted and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by the Borrower
and its Subsidiaries, taken as a whole, and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of the business of the Borrower and its Subsidiaries, taken as a
whole, except as otherwise permitted pursuant to Section 8.5, provided that the
Borrower and its Subsidiaries shall not be required to maintain any such rights,
privileges or franchises, if the failure to do so would not reasonably be
expected to have a Material Adverse Effect; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in the business of the Borrower and its Subsidiaries, taken
as a whole, in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all property material to the
business of the Borrower and its Subsidiaries, taken as a whole, in at least
such amounts and against at least such risks (but including in any event public
liability, product liability and business interruption insurance and casualty
insurance on each Material Facility, which product liability insurance shall, to
the extent reasonably available to the Borrower, be comparable in all material
respects to the product liability insurance of the Borrower in effect on the
Effective Date and which casualty insurance shall be on a replacement cost basis
to the extent reasonably available to the Borrower) as are usually insured
against in the same general area by companies engaged in the same or a similar
business; and furnish to the Administrative Agent, upon written request,
information in reasonable detail as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, complete and correct
entries in conformity with GAAP and all material Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any of
its properties and examine and, to the extent reasonable, make abstracts from
any of its books and records, and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants, in each case at any
reasonable time, upon reasonable notice, and as often as may reasonably be
desired.
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, the occurrence of any Default
or Event of Default;
(b) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any (i) default or event of
default under any Contractual Obligation of the Borrower or any of its
Subsidiaries, other than as previously disclosed in writing to the Lenders, or
(ii) litigation, investigation or proceeding which may exist at any time between
the Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;
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(c) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any litigation or proceeding
affecting the Borrower or any of its Subsidiaries in which the amount involved
(not covered by insurance or indemnified by the Seller pursuant to the Purchase
Agreement) is $3,000,000 or more or in which injunctive or similar relief is
sought that would reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after a Responsible Officer of the Borrower knows or reasonably
should know thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Single Employer Plan, a failure to make any required
contribution to a Single Employer or Multiemployer Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan; (ii) Underfunding with
respect to any Single Employer Plan which could result in a material liability
to the Borrower; (iii) the institution of proceedings or the taking of any other
action by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Single Employer or Multiemployer Plan; or
(iv) the occurrence or expected occurrence of any event or condition under which
the Borrower or any Commonly Controlled Entity has incurred or incur any
liability in respect of a Former Plan;
(e) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, any material adverse change in
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole;
(f) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, (i) any release or discharge
by the Borrower or any Subsidiary of any Materials of Environmental Concern
required to be reported under Environmental Laws to any Governmental Authority
that would reasonably be expected to result in the payment of a Material
Environmental Amount and (ii) any condition, circumstance, occurrence or event
that under Environmental Laws would reasonably be expected to result in a
material liability or would reasonably be expected to result in the imposition
of any Lien on any material portion of the Collateral or any other restriction
on the title, ownership or transferability of any material portion of the
Properties that would reasonably be expected to result in the payment of a
Material Environmental Amount; and
(g) no later than two Business Days prior to the making
thereof, any offer by the Borrower to purchase any Subordinated Notes pursuant
to the Subordinated Note Indenture in connection with the occurrence of a
Specified Change of Control.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of
a Responsible Officer of the Borrower (and, if applicable, the relevant Commonly
Controlled Entity or Subsidiary) setting forth details of the occurrence
referred to therein and stating what action the Borrower (or, if applicable, the
relevant Commonly Controlled Entity or Subsidiary) proposes to take with respect
thereto.
7.8 Environmental Laws. (a) Comply with, and use all
reasonable efforts to ensure compliance by all tenants and subtenants, if any,
with, all applicable Environmental Laws and obtain and comply with and maintain,
and use all reasonable efforts to ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, except in
each case to the extent that the failure to do so would not be reasonably
expected to result in the payment of a Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other similar actions required of the
Borrower or any Subsidiary under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that the same are being contested in
good faith by appropriate proceedings, and except in each case to the extent
that the failure to do so would not be reasonably expected to result in the
payment of a Material Environmental Amount.
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7.9 After-Acquired Property and Fixtures. (a) With respect to
any owned property which is contemplated by the Security Documents to constitute
Collateral (real or personal) or fixtures in which the Borrower or any of its
Subsidiaries acquires ownership rights at any time after the Effective Date,
promptly grant to the Administrative Agent, for the ratable benefit of the
Lenders, a perfected Lien on all such owned property (real or personal) and
fixtures to the extent contemplated by the Security Documents, upon terms
reasonably satisfactory in form and substance to the Administrative Agent and in
accordance with any applicable requirements of any Governmental Authority;
provided that nothing in this Section 7.9(a) shall defer or impair the
attachment or perfection of any security interest in any Collateral covered by
any of the Security Documents which would attach or be perfected pursuant to the
terms thereof without action by the Borrower, any Subsidiary or any other
Person.
(b) At its own expense, execute, acknowledge and deliver, or
cause the execution, acknowledgement and delivery of, and thereafter register,
file or record in an appropriate governmental office, any document or instrument
reasonably deemed by the Administrative Agent to be necessary or desirable for
the creation and perfection of the Liens described in paragraph (a) above.
7.10. Surveys. the Borrower shall have furnished to the
Administrative Agent, no later than 60 days after the date hereof, and the title
insurance company issuing the policy referred to in Section 7.11 (the "Title
Insurance Company") shall have received, maps or plats of an as-built survey of
the sites of the owned real property covered by each Mortgage certified to the
Administrative Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date reasonably satisfactory to the Administrative
Agent, the Other Representatives and the Title Insurance Company by an
independent professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall 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: (i) the locations on such sites of all the buildings, structures and
other improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements appurtenant to the sites necessary to use the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging projections
and similar encumbrances affecting the site, whether recorded, apparent from a
physical inspection of the sites or otherwise known to the surveyor; (v) any
encroachments on any adjoining property by the building structures and
improvements on the sites; and (vi) if the site is described as being on a filed
map, a legend relating the survey to said map.
7.11. Title Insurance Policy. The Borrower shall have
furnished to the Administrative Agent, no later than 60 days after the date
hereof, in respect of each parcel covered by each Mortgage a mortgagee's title
policy (or policies) or marked up unconditional binder for such insurance dated
the date of the recording of such Mortgage. Each such policy shall (i) be in an
amount reasonably satisfactory to the Administrative Agent and the Other
Representatives; (ii) insure that each Mortgage insured thereby creates a valid
first Lien on such parcel free and clear of all defects and encumbrances, except
those permitted by Section 8.3 and such as may be approved by the Administrative
Agent, provided that those defects and encumbrances originally approved by the
Administrative Agent in connection with the Existing Credit Facility shall be
approved in connection herewith; (iii) name the Administrative Agent as the
insured thereunder; (iv) be in the form of ALTA Loan Policy; (v) contain such
endorsements and affirmative coverage as the Administrative Agent may reasonably
request, provided that those endorsements and affirmative coverage originally
received by the Administrative Agent in connection with the Existing Credit
Facility shall be acceptable to the Administrative Agent in connection with all
matters other than those arising after the date of the Existing Credit Facility
and (vi) be issued by title companies reasonably satisfactory to the
Administrative Agent (including any such title companies acting as co-insurers
or reinsurers, at the option of the Administrative Agent). The Administrative
Agent shall have received evidence reasonably satisfactory to it that all
premiums in respect of each such policy, and all charges for mortgage recording
tax, if any, have been paid. The Administrative Agent shall have also received a
copy of all recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in this Section.
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7.12. Flood Insurance. The Borrower shall have furnished to
the Administrative Agent, no later than 60 days after the date hereof, (i) a
policy of flood insurance which (A) covers any parcel of improved real property
located in a flood hazard area which is encumbered by any Mortgage (B) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably allocable to such real
property or the maximum limit of coverage made available with respect to the
particular type of property under the Flood Disaster Protection Act of 1973,
whichever is less, and (C) has a term ending not later than the first
anniversary of the Effective Date and (ii) confirmation that the Borrower has
received the notice from the Administrative Agent required pursuant to Section
208(e)(3) of Regulation H of the Board of Governors of the Federal Reserve
System.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Effective
Date and so long as the Commitments remain in effect, and thereafter until
payment in full of the Notes, all Reimbursement Obligations and any other amount
then due and owing to any Lender, any Other Representative or the Administrative
Agent hereunder and termination or expiration of all Letters of Credit, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
8.1 Financial Condition Covenants.
(a) Maintenance of Interest Expense Ratio. Permit, for any
period of four consecutive fiscal quarters of the Borrower ending during any
test period set forth below, the Consolidated Interest Expense Ratio at the last
day of such consecutive fiscal quarter period to be less than the ratio set
forth opposite such test period below:
Period Ratio
------ -----
3/30/00-12/30/00 2.50 to 1.00
12/31/00-12/30/02 2.75 to 1.00
thereafter 3.00 to 1.00
(b) Consolidated Leverage Ratio: Permit the Consolidated
Leverage Ratio as at the last day of any fiscal quarter of Borrower occurring
during the period set forth below to be greater than the ratio set forth
opposite such period set forth below:
Period Ratio
------ -----
3/30/00-12/30/00 3.75 to 1.00
12/31/00-12/30/01 3.25 to 1.00
thereafter 2.75 to 1.00
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness (including any Indebtedness of any of its
Subsidiaries), except:
(a) Indebtedness of any Loan Party under any Loan Document to
which it is a party;
(b) Indebtedness of the Borrower and any Subsidiary Guarantor
under or in respect of the Subordinated Notes;
(c) Indebtedness in respect of loans made by the Borrower or
any Subsidiary to the Borrower or any Subsidiary pursuant to Section 8.10;
(d) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance the acquisition of fixed or capital assets (whether pursuant
to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to
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<PAGE> 46
this Agreement in an aggregate principal amount not exceeding in the aggregate
as to the Borrower and its Subsidiaries $25,000,000 at any one time outstanding;
(e) Indebtedness under Interest Rate Agreements permitted by
Section 8.19;
(f) other Indebtedness outstanding on the date hereof and
listed on Schedule 8.2(f) and any refinancings, refundings, renewals or
extensions thereof, provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension;
(g) to the extent that any Guarantee Obligation permitted
under Section 8.4 constitutes Indebtedness, such Indebtedness;
(h) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance the premiums for insurance policies or representing
obligations in respect of deductibles, self-insured retention amounts or
reimbursement obligations in respect of amounts incurred or paid by an insurance
company under any insurance program in effect on the date hereof or instituted
after the date hereof consistent with past practice;
(i) Indebtedness of the Borrower or any of its Subsidiaries
incurred to finance the purchase price of any acquisition permitted by Section
8.11 in an aggregate principal amount, when added to the aggregate amount of
Guarantee Obligations incurred pursuant to Section 8.4(l), not to exceed
$20,000,000 at any one time outstanding;
(j) Indebtedness permitted by Section 4.8(b); and
(k) additional Indebtedness of the Borrower or any Subsidiary
in an aggregate amount, when added to the aggregate amount of Guarantee
Obligations incurred pursuant to Section 8.4(n), not to exceed $15,000,000 at
any one time outstanding.
8.3 Limitation on Liens Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet delinquent or the nonpayment of
which in the aggregate would not reasonably be expected to have a Material
Adverse Effect, or which are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case may be,
in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings diligently conducted;
(c) Liens of landlords or of mortgagees of landlords arising
by operation of law, provided that such Liens do not have a material adverse
effect on the value or use of the assets encumbered thereby;
(d) pledges, deposits or other Liens in connection with
workers' compensation, unemployment insurance, other social security benefits or
other insurance related obligations (including, without limitation, pledges or
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements) and Liens on the proceeds of insurance policies
created in connection with any of the foregoing or with any Indebtedness
referred to in Section 8.2(h);
(e) Liens arising by reason of any judgment, decree or order
of any court or other Governmental Authority, if appropriate legal proceedings
which may have been duly initiated for the review of such judgment, decree or
order, are being diligently prosecuted and shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
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(f) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds, judgment and like bonds, replevin and
similar bonds and other obligations of a like nature incurred in the ordinary
course of business;
(g) zoning restrictions, easements, rights-of-way,
restrictions on the use of property, other similar encumbrances incurred in the
ordinary course of business and minor irregularities of title, which do not
materially interfere with the ordinary conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(h) Liens securing or consisting of Indebtedness of the
Borrower and its Subsidiaries permitted by Sections 8.2(d) and (i) incurred to
finance the acquisition of fixed or capital assets or any acquisition permitted
by Section 8.11, respectively, provided that (i) such Liens shall be created
within three months of the acquisition of such fixed or capital assets, (ii)
such Liens securing such Indebtedness do not at any time encumber any property
other than the property financed by such Indebtedness and (iii) except as to
Financing Leases, the principal amount of Indebtedness secured by any such Lien
shall at no time exceed 100% of the original purchase price of such assets (in
the case of a purchase) or fair value (as determined in good faith by the board
of directors of the Borrower or the relevant Subsidiary or, with respect to any
asset with a fair value of $500,000 or less, any Responsible Officer of the
Borrower or such Subsidiary) of such property at the time it was acquired (in
all other cases);
(i) Liens existing on assets or properties at the time of the
acquisition thereof by the Borrower or a Subsidiary which do not materially
interfere with the use of the property subject thereto or extend to or cover any
assets of the Borrower or such Subsidiary other than the assets or property
being acquired;
(j) Liens (i) in existence on the date hereof and listed in
Schedule 8.3(j) and other Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by Section 8.2(f), provided that no such Lien is spread
to cover any additional property after the Effective Date and that the amount of
Indebtedness secured thereby is not increased, or (ii) not otherwise permitted
hereunder and securing obligations not exceeding (as to the Borrower and all
Subsidiaries) $10,000,000 in aggregate amount at any time outstanding;
(k) Liens created pursuant to the Security Documents; and
(l) Liens on Intellectual Property (as defined in Section 5.9)
and on foreign patents, trademarks, trade names, copyrights, technology,
know-how and processes resulting from the granting of licenses to use such
Intellectual Property and/or foreign patents, trade names, copyrights,
technology, know-how and/or processes to any Person in the ordinary course of
business of the Borrower or any of its Subsidiaries.
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed in Schedule 8.4(a), and any refinancings, refundings, extensions or
renewals thereof, provided that the amount of such Guarantee Obligation shall
not be increased at the time of such refinancing, refunding, extension or
renewal;
(b) Guarantee Obligations in connection with up to an
aggregate principal amount of $7,500,000 of Indebtedness outstanding at any time
incurred by directors, officers, employees, managers or consultants of or to
Holding, the Borrower or any of their respective Subsidiaries in connection with
any Management Subscription Agreement, and any refinancings, refundings,
extensions or renewals thereof;
(c) Guarantee Obligations in connection with sales or other
dispositions permitted under Section 8.6, including guarantees with respect to
leases, indemnification obligations, and guarantees of collectibility in respect
of accounts receivable or notes receivable for up to face value;
(d) Guarantee Obligations for bankers' acceptances, bills of
exchange, performance bonds, replevin and similar bonds, suretyship
arrangements, or bank overdrafts repaid in three days, all in the ordinary
course of business, and reimbursement obligations in respect of commercial
documentary letters of credit issued for
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<PAGE> 48
the account of the Borrower or any of its Subsidiaries for the purchase of goods
or services in the ordinary course of business, and standby letters of credit
for use in the ordinary course of business, in an aggregate principal or face
amount for all such Guarantee Obligations described in this Section 8.4(d) at
any one time outstanding (as to the Borrower and all Subsidiaries) not to exceed
$15,000,000 at any time outstanding, provided, that in no event shall the sum of
(x) the aggregate then undrawn and unexpired amount of the letters of credit
referred to above and (y) the aggregate amount of unreimbursed drawings in
respect of such letters of credit exceed $15,000,000 at any one time
outstanding;
(e) Guarantee Obligations in respect of indemnification and
contribution agreements in favor of CD&R, C&D Fund IV, Affiliates thereof and
each Person who becomes a director, officer or employee of Holding, the Borrower
or any of their Subsidiaries in respect of liabilities (i) arising under the
Securities Act, the Exchange Act and any other applicable securities laws or
otherwise in connection with any offering of securities by Holding, the Borrower
or any of their Subsidiaries, (ii) incurred to third parties for any action or
failure to act of Holding, the Borrower or any of their Subsidiaries or
successors, (iii) to Persons which are not Affiliates, arising out of the
performance by CD&R of management consulting or financial advisory services to
Holding, the Borrower or any of their Subsidiaries, (iv) arising out of the fact
that any indemnitee was or is a director, officer or employee of Holding, the
Borrower or any of their Subsidiaries, or is or was serving at the request of
any such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise or (v) to the
fullest extent permitted by Delaware law, out of any breach or alleged breach by
such an indemnitee of their fiduciary duty as a director or officer of Holding,
the Borrower or any of their Subsidiaries;
(f) Reimbursement Obligations in respect of the Letters of
Credit;
(g) Guarantee Obligations in respect of up to an aggregate
principal amount, together with the amount of all Investments permitted under
Section 8.10(e)(iii), of $5,000,000 outstanding at any time of third-party loans
and advances to officers or employees of the Borrower or any Subsidiary for
travel, entertainment and relocation expenses incurred in the ordinary course of
business;
(h) obligations to insurers required in connection with
worker's compensation and other insurance coverage incurred in the ordinary
course of business;
(i) obligations under any Interest Rate Agreements permitted
by Section 8.19;
(j) guarantees made in the ordinary course of its business by
the Borrower or any of its Subsidiaries of obligations of the Borrower or any
Wholly Owned Subsidiary of the Borrower which is a Subsidiary Guarantor, which
obligations are otherwise permitted under this Agreement;
(k) Guarantee Obligations incurred pursuant to the Guarantees
and Guarantee Obligations in favor of the Subordinated Notes;
(l) Guarantee Obligations incurred in connection with
acquisitions permitted under Section 8.11 in an aggregate amount, when added to
the aggregate amount of Indebtedness incurred pursuant to Section 8.2(i), not to
exceed $20,000,000 at any one time outstanding;
(m) Guarantee Obligations made in the ordinary course of its
business by the Borrower or any of its Subsidiaries of obligations (other than
Indebtedness) of any Subsidiary which obligations are otherwise permitted under
this Agreement; and
(n) Guarantee Obligations in addition to those otherwise
permitted by this Section 8.4 in an aggregate amount not to exceed $10,000,000
at any one time outstanding; provided, that in no event shall the aggregate
amount of Guarantee Obligations incurred pursuant to this Section 8.4(n) and
Indebtedness incurred pursuant to Section 8.2(k) exceed $15,000,000 at any one
time outstanding.
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8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more Wholly
Owned Subsidiaries of the Borrower which are Subsidiary Guarantors (provided
that the Wholly Owned Subsidiary or Wholly Owned Subsidiaries shall be the
continuing or surviving corporation);
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its property, business or assets (upon voluntary
liquidation or otherwise) to the Borrower or any Wholly Owned Subsidiary of the
Borrower which is a Subsidiary Guarantor;
(c) any Foreign Subsidiary of the Borrower may be merged or
consolidated with or into any one or more Wholly Owned Foreign Subsidiaries of
the Borrower and any Foreign Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its property, business or assets
(upon voluntary liquidation or otherwise) to any Wholly Owned Foreign
Subsidiary; and
(d) in the case of any Subsidiary, as permitted by Section
8.6.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock, to any Person other than the
Borrower or any Wholly Owned Subsidiary which is a Subsidiary Guarantor, except:
(a) the sale or other Disposition of obsolete or worn out
property, whether now owned or hereafter acquired, in the ordinary course of
business;
(b) the sale or other Disposition of any inventory or other
personal property in the ordinary course of business;
(c) the sale or discount without recourse of accounts
receivable or notes receivable arising in the ordinary course of business, or
the conversion or exchange of accounts receivable into or for notes receivable,
in connection with the compromise or collection thereof;
(d) as permitted by Section 8.5(b) or (c);
(e) the abandonment or other Disposition of patents,
trademarks or other intellectual property that are, in the reasonable judgment
of the Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(f) Dispositions of any assets or property by the Borrower or
any Subsidiary to the Borrower or any Wholly Owned Subsidiary of the Borrower
which is a Subsidiary Guarantor or by any Foreign Subsidiary to any other
Foreign Subsidiary of the Borrower;
(g) Dispositions of any assets having a fair market value not
in excess of $20,000,000 in the aggregate during the term of this Agreement,
provided that all Net Cash Proceeds of each such Disposition are reinvested
within one year of such Disposition in other property or assets that will be
used in the business of the Borrower and its Subsidiaries and that constitute
Collateral, and provided, further, that none of such other property or assets
may be subject to any Lien created or assumed pursuant to Section 8.3(h) or (j)
or any Lien securing Indebtedness created or assumed pursuant to Section 8.3(i);
(h) any Disposition in connection with any Investment
permitted by Section 8.10(f), (g), (h), (j) or (k); and
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(i) any other Asset Sales by the Borrower or any of its
Subsidiaries so long as the fair market value of the assets so sold does not
exceed $10,000,000 in the aggregate after the Effective Date.
8.7 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Borrower or Holding
or options, warrants or other rights to purchase common stock of the Borrower or
Holding) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution (other than
distributions payable solely in common stock of the Borrower or Holding or
options, warrants or other rights to purchase common stock of the Borrower or
Holding) in respect thereof, either directly or indirectly, whether in cash or
property or in obligations of the Borrower or any Subsidiary, except that:
(a) the Borrower may pay a dividend payment to Holding in
order to allow Holding to make a dividend payment to its shareholders in an
amount of up to $56,000,000, on or prior to May 15, 2000 (collectively the
"Closing Dividend");
(b) so long as there is no Default or Event of Default in
existence, the Borrower may from time to time make a dividend payment of up to
the amount which would then be permitted by Section 1009 of the Subordinated
Note Indenture as it is in effect on the date hereof, if for purposes of such
Section any Subordinated Note Repurchase made after the date hereof were deemed
to be a dividend payment, in each case to allow Holding to make an equivalent
dividend payment to its shareholders; provided that, the Administrative Agent
shall have received the certificates referred to in Section 7.2(g) in accordance
therewith;
(c) the Borrower may pay cash dividends to Holding in an
amount sufficient to allow Holding to pay expenses incurred in the ordinary
course of business in an aggregate amount not to exceed $1,000,000 in any fiscal
year;
(d) the Borrower may pay cash dividends to Holding in an
amount sufficient to cover reasonable and necessary expenses (including
professional fees and expenses) incurred by Holding in connection with (I)
registration, public offerings and exchange listing of equity securities and
maintenance of the same, (II) compliance with reporting obligations under
federal or state laws or under this Agreement or any of the other Loan Documents
or under the Subordinated Note Indenture and (III) indemnification and
reimbursement of directors, officers and employees in respect of liabilities
relating to their serving in any such capacity;
(e) the Borrower may pay cash dividends to Holding in amounts
sufficient to pay tax liabilities of Holding which are paid in cash by Holding
to any taxing authority;
(f) the Borrower may pay cash dividends to Holding in an
amount sufficient to allow Holding to repurchase shares of its common stock or
options in respect thereof pursuant to and as contemplated by the Management
Subscription Agreements which may be entered into between Holding and certain
employees, officers, directors or managers of, or consultants to, Holding, the
Borrower and their Subsidiaries (including, without limitation, repurchase of
shares or options from trusts for the benefit of relatives of employees,
directors or managers of, or consultants to, Holding, the Borrower or any of
their Subsidiaries) for an aggregate purchase price (net of resales of such
shares or options) not to exceed $7,500,000 in the aggregate in any fiscal year;
and
(g) the Borrower may pay cash dividends to Holding in an
amount sufficient to allow Holding to pay all fees and expenses incurred by it
in connection with the Transaction.
8.8 Limitation on Optional Payments and Modifications of Debt
Instruments, etc.
(a) Make any optional payment or prepayment on or redemption,
repurchase or defeasance of any Subordinated Notes (all a "Subordinated Note
Repurchase") except that so long as there is no Default or Event of
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<PAGE> 51
Default in existence, the Borrower may make Subordinated Note Repurchases which
would then be permitted by Section 1009 of the Subordinated Note Indenture if
such Subordinated Note Repurchase and any other Subordinated Note Repurchases
made after the date hereof were deemed to be a dividend payment for purposes of
such Section;
(b) amend, modify or change, or consent to any amendment,
modification or change to any material term of any Subordinated Notes
(including, without limitation, any subordination provisions, covenants, stated
maturity, principal amount or rate of payment of interest) in a manner that
would have an adverse effect on the interests of the Administrative Agent or the
Lenders hereunder or under any Loan Document without the prior consent of the
Required Lenders; or
(c) offer to repurchase any Subordinated Notes in connection
with the occurrence of a Specified Change of Control prior to the date which is
ten days after the date of such Specified Change of Control.
8.9 Limitation on Capital Expenditures. Make or commit to make
any Capital Expenditures (excluding (x) any expenses incurred in connection with
normal replacement and maintenance programs properly charged to current
operations, (y) any reinvestments of Net Cash Proceeds (or amounts equal
thereto) during the term of this Agreement received with respect to any Asset
Sale which reinvestments are made in accordance with Section 8.6(g) and (z) any
reinvestments of Net Cash Proceeds (or amounts equal thereto) received with
respect to any Recovery Event) exceeding in the aggregate for the Borrower and
its consolidated Subsidiaries, for any fiscal year of the Borrower set forth
below, the amount set forth opposite such fiscal year below:
Fiscal Year Amount
----------- ------
2000 $25,000,000
thereafter $20,000,000
provided that (i) any Capital Expenditures permitted to be made during any
fiscal year and not made during such fiscal year may be carried over and
expended during the next succeeding fiscal year and (ii) Capital Expenditures
made during any fiscal year shall be first deemed made in respect of amounts
carried over from the prior fiscal year and then deemed made in respect of
amounts permitted for such fiscal year.
8.10 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in (each an
"Investment"), any Person, except:
(a) extensions of trade credit in the ordinary course of
business of the Borrower or any of its Subsidiaries;
(b) Investments in Cash Equivalents;
(c) Investments existing on the date hereof and described in
Schedule 8.10(c), setting forth the respective amounts of such Investments as of
a recent date;
(d) Investments in notes receivable in connection with
transactions permitted by Section 8.6(c);
(e) loans and advances to officers, directors or employees of
the Borrower or any of its Subsidiaries (i) in the ordinary course of business
for travel and entertainment expenses, (ii) existing on the date hereof and
described in Schedule 8.10(c), (iii) made after the Effective Date for
relocation expenses, not to exceed (as to the Borrower and all Subsidiaries),
together with the amount of all Guarantee Obligations permitted pursuant to
Section 8.4(g), $5,000,000 in the aggregate outstanding at any time and (iv)
relating to indemnification or reimbursement of any officers, directors or
employees in respect of liabilities relating to their serving in any such
capacity;
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(f) Investments by the Borrower in any Wholly Owned Subsidiary
of the Borrower which is a Subsidiary Guarantor and by any Subsidiary of the
Borrower in the Borrower or in any Wholly Owned Subsidiary of the Borrower which
is a Subsidiary Guarantor;
(g) in addition to Investments otherwise expressly permitted
by this Section 8.10, Investments by the Borrower or any Subsidiary of the
Borrower in Foreign Subsidiaries of the Borrower in an aggregate amount not to
exceed $5,000,000 at any one time outstanding for all such Foreign Subsidiaries;
(h) Investments by any Foreign Subsidiary of the Borrower in
any other Foreign Subsidiary of the Borrower;
(i) loans or advances, approved by any Responsible Officer of
the Borrower, to officers, directors or employees of the Borrower or any of its
Subsidiaries not to exceed $2,500,000 in the aggregate at any time outstanding;
(j) Investments (in addition to any other Investments
permitted by this Section 8.10) in an aggregate amount not to exceed $20,000,000
at any one time outstanding; and
(k) transfers by the Borrower of Capital Stock of the Mexican
Company to any Domestic Subsidiary.
8.11 Limitations on Certain Acquisitions. Acquire by purchase
or otherwise all the business or assets of, or stock or other evidences of
beneficial ownership of, any Person, except that the Borrower and its
Subsidiaries shall be allowed to make any such acquisitions so long as the
aggregate consideration paid by the Borrower and its Subsidiaries (including the
assumption of Indebtedness) in connection with all such acquisitions since the
Effective Date does not exceed $35,000,000 (plus any reinvestments of Net Cash
Proceeds (or amounts equal thereto) received with respect to any Asset Sale
which reinvestments are made in accordance with Section 8.6(g)); provided that,
after giving effect thereto, no Default or Event of Default shall occur as a
result of such acquisition.
8.12 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than the Borrower or a Wholly Owned Subsidiary of the Borrower which is a
Subsidiary Guarantor) unless such transaction is (a) otherwise permitted under
this Agreement, and (b) upon terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate; provided, that
nothing contained in this Section 8.12 shall be deemed to prohibit:
(i) the Borrower or any of its Subsidiaries from entering
into or performing any consulting, management or employment agreements
or other compensation arrangements with (X) an officer or employee of
the Borrower, Holding or any of their respective Subsidiaries that
provides for annual aggregate base compensation less than or equal to
$750,000 for each such officer or employee or (Y) a director of the
Borrower, Holding or any of their respective Subsidiaries that provides
for annual aggregate compensation less than or equal to $50,000 plus
expenses for each such director in such capacity;
(ii) the Borrower or any of its Subsidiaries from entering
into or performing an agreement with CD&R for the rendering of
management consulting or financial advisory services to the Borrower
for compensation not to exceed in the aggregate $500,000 per year plus
reasonable out-of-pocket expenses;
(iii) the payment of fees and expenses in connection with
this Agreement and the other transactions related hereto;
(iv) the Borrower or any of its Subsidiaries from entering
into, making payments pursuant to and otherwise performing an
indemnification and contribution agreement in favor of CD&R, C&D Fund
IV,
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the Affiliates thereof and each person who becomes a director, officer
or employee of Holding, the Borrower or any of their respective
Subsidiaries, in respect of liabilities (A) arising under the
Securities Act, the Exchange Act and any other applicable securities
laws or otherwise, in connection with any offering of securities by
Holding, the Borrower or any of their respective Subsidiaries, (B)
incurred to third parties for any action or failure to act of Holding,
the Borrower or any of their respective Subsidiaries, predecessors or
successors, (C) arising out of the performance by CD&R of management
consulting or financial advisory services provided to Holding, the
Borrower or any of their respective Subsidiaries, (D) arising out of
the fact that any indemnitee was or is a director, officer or employee
of Holding, the Borrower or any of their respective Subsidiaries, or is
or was serving at the request of any such corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or enterprise or (E) to the fullest extent permitted by
Delaware or other applicable state law, out of any breach or alleged
breach by such indemnitee of his or her fiduciary duty as a director or
officer of Holding, the Borrower or any of their respective
Subsidiaries;
(v) the Borrower or any of its Subsidiaries from
performing any agreements or commitments with or to any Affiliate
existing on the date hereof and described on Schedule 8.12(v); and
(vi) any transaction permitted under Section 8.4(b),
8.4(g), 8.10(e), 8.10(g), 8.10(i) or 8.10(j).
For purposes of this Section 8.12, (A) any transaction with any Affiliate shall
be deemed to have satisfied the standard set forth in clause (b) of the first
sentence hereof if (i) such transaction is approved by a majority of the
Disinterested Directors of the Board of Directors of the Borrower or the
applicable Subsidiary, or (ii) in the event that at the time of any such
transaction, there are no Disinterested Directors serving on the Board of
Directors of the Borrower or such Subsidiary, such transaction shall be stated
to be fair to the Borrower or such Subsidiary from a financial point of view, or
otherwise approved, by a nationally recognized investment banking firm or other
expert with expertise in appraising the terms and conditions of the type of
transaction for which approval is required and (B) "Disinterested Director"
shall mean, with respect to any Person and transaction, a member of the Board of
Directors of such Person who does not have any material direct or indirect
financial interest in or with respect to such transaction.
8.13 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary, other than in connection with any Disposition permitted under
Section 8.6.
8.14 Limitations on Dispositions of Collateral. Convey, sell,
transfer, lease, or otherwise dispose of any of the Collateral, or attempt,
offer or contract to do so, except for (a) mergers, consolidations, sales,
leases, transfers or other Dispositions permitted under Section 8.5 and (b)
sales or other Dispositions permitted under Section 8.6, including sales of
inventory in the ordinary course of business; and the Administrative Agent
shall, and the Lenders hereby authorize the Administrative Agent to, at the
expense of the Borrower, execute such releases of Liens and take such other
actions as the Borrower may reasonably request in connection with the foregoing.
8.15 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower or any of its Subsidiaries to end on a day other than
December 31.
8.16 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement and the other Loan
Documents and (b) any industrial revenue or development bonds, purchase money
mortgages, acquisition agreements or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed or acquired thereby) or operating leases of real
property entered into in the ordinary course of business (in which cases, any
prohibition or limitation shall only be effective against the assets subject to
the relevant operating lease), which prohibits or limits the ability of the
Borrower or any of its Domestic Subsidiaries to create, incur, assume or suffer
to exist any Lien in
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favor of the Lenders upon any of its property, assets or revenues, whether now
owned or hereafter acquired, which represent the Collateral (including
after-acquired property contemplated by the Loan Documents to constitute
Collateral) or any portion thereof.
8.17 Limitation on Lines of Business; Creation of
Subsidiaries. (a) Enter into any business, either directly or through any
Subsidiary, except for those businesses of the same general type as those in
which the Borrower and its Subsidiaries are engaged on the date of this
Agreement or which are related thereto.
(b) Create or acquire any new Subsidiaries of the Borrower
other than (x) any new Domestic Subsidiaries that shall execute, as applicable,
a Subsidiary Guarantee, Subsidiary Security Agreement, Subsidiary Patent and
Trademark Security Agreement and Mortgage and for which the Borrower shall
execute a Borrower Stock Pledge Agreement and deliver or cause to be delivered
to the Administrative Agent the stock certificates representing all of the
issued and outstanding capital stock of such Domestic Subsidiary owned by the
Borrower or any Domestic Subsidiary together with undated stock powers for each
such certificate executed in blank by a duly authorized officer of the pledgor
thereof or (y) any new Foreign Subsidiaries for which the Borrower or a
Subsidiary Guarantor shall execute a Borrower Stock Pledge Agreement (with
necessary conforming changes in the case of a Subsidiary Guarantor) pledging to
the Lenders 65% of the issued and outstanding Capital Stock of any such
Subsidiary (unless a lesser percentage of such Capital Stock is owned by the
Borrower and its Domestic Subsidiaries, in which case such lesser percentage
shall be so pledged) and take such action as may reasonably be requested by the
Administrative Agent to perfect the Lenders' security interest in such pledged
Capital Stock; provided that if any such Subsidiary is required to guarantee any
obligations under the Subordinated Notes, such guarantee is subordinated to such
Subsidiary's obligations under such Subsidiary Guarantee as contemplated by the
Subordinated Note Indenture as in effect on the date hereof.
(c) Notwithstanding anything in this Agreement to the
contrary, the Borrower shall not permit its domestic ammunition or arms
manufacturing business to be conducted through any Subsidiary.
8.18 Limitation on Commodities Activities. Except for
Commodity Interests in existence on the Effective Date and described on Schedule
8.18, purchase or sell any Commodity Interests for any purpose other than
hedging against a change in the value or amount of any actual or anticipated
asset, liability or expense of the Borrower or any of its Subsidiaries.
8.19 Interest Rate Agreements. Enter into any Interest Rate
Agreement other than (a) Interest Rate Agreements in existence on the Effective
Date and described on Schedule 8.19 and (b) Interest Rate Agreements entered
into for the purpose of hedging against interest rate fluctuations with respect
to variable rate Indebtedness of the Borrower or any of its Subsidiaries.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note
or any Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Note, or any other
amount payable hereunder, within five days after any such interest or other
amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document (or in any
amendment, modification or supplement hereto or thereto) or which is contained
in any certificate furnished at any time by or on behalf of the Borrower or any
other Loan Party pursuant to this Agreement or any such other Loan Document
shall prove to have been incorrect in any material respect on or as of the date
made or deemed made; or
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(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 7.7(a) or
Section 8 of this Agreement, the first and second sentences of Section 3(b) of
any Mortgage, Section 6, 7 or 11(a) of any Mortgage, Section 10(c) or 10(e) of
the Holding Guarantee, Section 5(b) of the Holding Stock Pledge Agreement,
Section 5(b) of the Borrower Stock Pledge Agreement, Section 5(j), 5(m) or 5(n)
of the Borrower Patent and Trademark Security Agreement, or Section 5(h), 5(i),
5(j), 5(k) or 5(p) of the Borrower Security Agreement (or any equivalent
provision of any comparable Loan Document entered into by the Borrower or any of
its Subsidiaries after the Effective Date pursuant to this Agreement) and, in
the case of a default in the observance or performance of its obligations under
Section 7.7(a) of this Agreement, such default shall have continued unremedied
for a period of two days after a Responsible Officer of the Borrower shall have
discovered or should have discovered such default; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period ending on
the earlier of (i) the date 32 days after a Responsible Officer of the Borrower
shall have discovered or should have discovered such default and (ii) the date
15 days after written notice has been given to the Borrower by the
Administrative Agent or the Required Lenders; or
(e) Holding, the Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness (other
than the Notes) or in the payment of any Guarantee Obligation, beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice or lapse of time if required,
such Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable (an "Acceleration"), and such time shall have
lapsed and, if any notice (a "Default Notice") shall be required to commence a
grace period or declare the occurrence of an event of default before notice of
Acceleration may be delivered, such Default Notice shall have been given,
provided, that a default, event or condition described in this paragraph (e)
shall not at any time constitute a Default or an Event of Default under this
Agreement unless, at such time, one or more defaults, events or conditions of
the type described in this paragraph (e) shall have occurred and be continuing
with respect to Indebtedness and/or Guarantee Obligations the outstanding
principal amount of which exceeds in the aggregate $5,000,000; or
(f) (i) The Borrower or any other Loan Party shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any other Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower or any
other Loan Party any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged,
unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any other Loan Party any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been vacated,
discharged, stayed or bonded pending appeal, within 60 days from the entry
thereof; or (iv) the Borrower or any other Loan Party shall take any corporate
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any other Loan Party shall be generally unable to, or
shall admit in writing its general inability to, pay its debts as they become
due; or
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(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is reasonably likely to result in the termination of such Plan for
purposes of Title IV of ERISA (other than a standard termination pursuant to
Section 4041(b) of ERISA), (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled
Entity shall, or is reasonably likely to, incur any liability in connection with
a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan,
(vi) the occurrence or expected occurrence of any event or condition which
results or is reasonably likely to result in the Borrower's or any Commonly
Controlled Entity's becoming responsible for any liability in respect of a
Former Plan, or (vii) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vii) above, such
event or condition, together with all other such events or conditions, if any,
would be reasonably expected to result in liability which would have a Material
Adverse Effect; provided, however, that the fact that a Plan is underfunded
shall not by itself constitute an Event of Default unless and until another
event or condition described in clause (i) through (vii) affecting such
underfunded Plan occurs; or
(h) One or more judgments or decrees shall be entered against
Holding, the Borrower or any of its Subsidiaries involving in the aggregate at
any time a liability (to the extent not paid or covered by insurance) of
$5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert in writing,
(ii) the Lien created by any of the Security Documents shall cease to be
perfected and enforceable in accordance with its terms or of the same effect as
to perfection and priority purported to be created thereby with respect to any
significant portion of the Collateral, and the failure of such Lien to be so
perfected and enforceable with such priority shall have continued unremedied for
a period of 20 days, (iii) any Subordinated Notes shall cease, for any reason,
to be validly subordinated as provided therein to the obligations of the
Borrower under this Agreement and the other Loan Documents, or (iv) the
obligations of Holding under the Holding Subordinated Note Guarantee shall
cease, for any reason, to be validly subordinated as provided therein to the
obligations of Holding under the Holding Guarantee; or
(j) Any Guarantee shall cease, for any reason, to be in full
force and effect or any Guarantor shall so assert in writing; or
(k) A Change of Control shall have occurred;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) and
the Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable.
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With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower in respect of such Letters
of Credit under this Agreement and the other Loan Documents. The Borrower shall
execute and deliver to the Administrative Agent, for the account of the Issuing
Lender and the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of such
security interest in such cash collateral account. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower hereunder and
under the Notes. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower.
Except as expressly provided above in this Section 9,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE OTHER REPRESENTATIVES
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes Chase, as the Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Each Lender hereby irrevocably designates and appoints
BofA, as the Syndication Agent, and GSCP as the Documentation Agent, under this
Agreement and the other Loan Documents. Notwithstanding any provisions to the
contrary elsewhere in this Agreement, neither the Syndication Agent nor the
Documentation Agent nor the Other Representatives, in their respective
capacities as such, shall have any duties or responsibilities hereunder, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Syndication
Agent or the Documentation Agent or the Other Representatives, provided,
however, that each of them may have duties and responsibilities in their
capacity as a Lender.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
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 Administrative Agent
nor any Other Representative nor their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by the Borrower or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent or any Other
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Representative under or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or the Notes or any other Loan Document or for
any failure of the Borrower to perform its obligations hereunder or thereunder.
Neither the Administrative Agent nor any Other Representative shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower.
10.4 Reliance by Administrative Agent and the Other
Representatives. The Administrative Agent and the Other Representatives shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, 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 the Borrower), independent
accountants and other experts selected by the Administrative Agent. Each of the
Administrative Agent and each Other Representative may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent and each Other Representative. Each of the Administrative
Agent and each Other Representative shall be fully justified as between itself
and the Lenders in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Each of the Administrative Agent and each Other Representative
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the Notes and the other Loan Documents in accordance
with a request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
10.5 Notice of Default. Neither the Administrative Agent shall
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, 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 notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent, Other
Representatives and Other Lenders. Each Lender expressly acknowledges that
neither the Administrative Agent nor any Other Representative 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 Administrative
Agent or any Other Representative hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent or such Co-Agent to any Lender. Each Lender
represents to the Administrative Agent and each Other Representative that it
has, independently and without reliance upon the Administrative Agent, any Other
Representative or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent, any
Other Representative or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Each Lender
represents to each other party hereto that it is a bank, savings and loan
association or other similar savings institution, insurance company, investment
fund or company or other financial institution which makes or acquires
commercial loans in the ordinary course of its business, that it is
participating hereunder as a Lender for its own account and for such commercial
purposes, and that it has the knowledge and experience to be
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and is capable of evaluating the merits and risks of being a Lender hereunder.
Each Lender acknowledges and agrees to comply with the provisions of subsection
11.6 applicable to the Lenders and nothing in this subsection 10.6 shall be
deemed to limit or impair such Lender's rights to sell participating interests
in any Loan pursuant to subsection 11.6(b). Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, neither the Administrative Agent nor any Other
Representative shall have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower which may come into the possession of the Administrative Agent or any
Other Representative or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each of
the Administrative Agent and each Other Representative 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
Revolving Credit Commitment Percentages in effect on the date on which
indemnification is sought under this Section 10.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Revolving
Credit Commitment Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent or such Other Representative in any way relating to or
arising out of this Agreement, any of the other Loan 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 the
Administrative Agent or such Other Representative 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 the Administrative Agent or such Other
Representative, as the case may be. The agreements in this Section 10.7 shall
survive the payment of the Notes and all other amounts payable hereunder.
10.8 Administrative Agent and Other Representatives in their
Individual Capacities. Each of the Administrative Agent and the Other
Representatives and their respective Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent or such Other Representative were not the
Administrative Agent or an Other Representative as the case may be, hereunder
and under the other Loan Documents. With respect to its Loans made or renewed by
it and any Note issued to it and with respect to any Letter of Credit issued or
participated in by it, the Administrative Agent and each Other Representative
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent or an Other Representative as the case may be, and the
terms "Lender" and "Lenders" shall include the Administrative Agent and, if
applicable, each Other Representative as the case may be, in its individual
capacity.
10.9 Successor Administrative Agent or Other Representatives.
(a) The Administrative Agent may resign as Administrative Agent upon 10 days'
notice to the Lenders. If the Administrative Agent shall resign as Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall be approved by the Borrower, whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Notes. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
(b) Any Other Representative may resign as an Other
Representative upon 10 days' notice to the Administrative Agent, the additional
Other Representatives and the Lenders.
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10.10 Swing Line Lender; Issuing Lender. The provisions of
this Section 10 shall apply to the Swing Line Lender in its capacity as such to
the same extent that such provisions apply to the Administrative Agent. The
provisions of this Section 10 shall apply to the Issuing Lender in its capacity
as such to the same extent that such provisions apply to the Administrative
Agent.
10.11 The Other Representatives. To the extent applicable, the
provisions of this Section 10 shall apply to the actions of each Other
Representative in connection with the syndication of the Commitments to the
Lenders.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any Note
or any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 11.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower (or any other relevant Loan Party) written amendments,
supplements or modifications hereto and to the Notes and the other Loan
Documents for the purpose of adding any provisions to this Agreement, the Notes
or the other Loan Documents or changing in any manner the rights or obligations
of the Lenders or of the Borrower (or any other relevant Loan Party) hereunder
or thereunder or (b) waive at the Borrower's (or any other relevant Loan
Party's) request, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such Instrument, any of
the requirements of this Agreement, the Notes or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i) reduce
the amount or extend the scheduled date of maturity of any Note or any
Reimbursement Obligation or of any scheduled installment thereof, or reduce the
stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the amount or extend the expiration date
of any Lender's Commitment, in each case without the consent of each Lender
directly affected thereby, (ii) amend, modify or waive any provision of this
Section 11.1 or reduce the percentage specified in the definition of "Required
Lenders", "Required Release Lenders" or "Required Supermajority Release
Lenders", or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Lenders, (iii) release in the
aggregate a material portion of the Collateral taken as a whole (or release
Guarantees of Subsidiary Guarantors which collectively own a material portion of
the Collateral taken as a whole) without the consent of the Required Release
Lenders, (iv) release in the aggregate all or substantially all of the
Collateral taken as a whole (or release Guarantees of Subsidiary Guarantors
which collectively own all or substantially all of the Collateral taken as a
whole) without the consent of the Required Supermajority Release Lenders or (v)
amend, modify or waive any provision of Section 10 without the written consent
of the then Administrative Agent (if affected thereby) and each Other
Representative (if any) affected thereby. The Swing Line Note, the Letters of
Credit and the Applications relating thereto may not be amended, supplemented or
modified without the written consent of the Swing Line Lender or the Issuing
Lender, as applicable (and, in the case of the Swing Line Note, each Lender, if
any, which holds a participation therein pursuant to Section 2.5(d) and, in the
case of Letters of Credit, each affected L/C Participant). Any waiver and any
amendment, supplement or modification pursuant to this Section 11.1 shall apply
to each of the Lenders and shall be binding upon the Borrower, the other Loan
Parties, the Lenders, the Administrative Agent, each Other Representative and
all future holders of the Notes. In the case of any waiver, the Borrower, the
other Loan Parties, the Lenders, the Administrative Agent and each Other
Representative shall be restored to their former position and rights hereunder
and under the outstanding Notes and any other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or five Business Days after
being deposited in the mail, registered or certified with postage prepaid, or,
in the case of telecopy notice, when received, or, in the case of delivery by a
nationally recognized overnight courier, when received, addressed as follows in
the case of the
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Borrower and the Administrative Agent, and as set forth on Schedule 1.1A in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Borrower: Remington Arms Company, Inc.
870 Remington Drive
Madison, N.C. 27025
Attention: Mark Little, VP, Chief Financial Officer
Telecopy: (336) 548-7779
with a copy to: Clayton, Dubilier & Rice, Inc.
375 Park Avenue
New York, New York 10152
Attention: Michael Babiarz
Telecopy: (212) 893-7050
and
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attention: David Brittenham
Telecopy: (212) 909-8396
The Administrative
Agent: Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: William J. Caggiano
Telecopy: (212) 972-0009
with a copy to: Chase Manhattan Bank Agency Services
Corporation
140 East 45th Street
New York, New York 10017
Attention: Janet Belden
Telecopy: (212) 552-5658
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.3, 2.5, 4.2, 4.4 or 4.8 shall not be
effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Borrower, the Administrative
Agent, any Other Representative or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making of the Loans hereunder.
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11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent and each Other Representative for all
its reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, execution and delivery of, and any amendment, supplement, waiver or
modification to, this Agreement, the Notes and the other Loan Documents and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions (including the syndication
of the Commitments) contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of a single counsel to (in
addition to any special or local counsel retained by such counsel to assist it)
representing all of the Administrative Agents, the Other Representatives and the
Lenders, (b) to pay or reimburse each Lender, each Other Representative and the
Administrative Agent for all its reasonable costs and expenses (in the case of
taxes, limited to stamp, excise or other similar taxes) incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
Notes, the other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Other
Representatives and the several Lenders, and any reasonable Environmental Costs
arising out of or in way relating to any Loan Party or any property in which any
Loan Party has had any interest at any time, (c) to pay, indemnify, and hold
each Lender, each Co-Agent and the Administrative Agent harmless from, any and
all recording and filing fees (to the extent permitted by applicable law) and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Notes, the other Loan Documents and any such
other documents, and (d) to pay, indemnify, and hold each Lender, each Co-Agent
and the Administrative Agent (and their respective directors, officers,
employees, agents, successors and assigns) harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(whether or not caused by any Lender's, any Other Representative's, the
Administrative Agent's or any of their respective directors', officers',
employees', agents', successors' or assigns' own negligence (other than gross
negligence) and including, without limitation, the reasonable fees and
disbursements of counsel) with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Notes, the other Loan
Documents and any such other documents (regardless of whether, any Other
Representative, the Administrative Agent or any Lender is a party to the
litigation or other proceeding giving rise thereto), including, without
limitation, any of the foregoing relating to the violation of, noncompliance
with or liability under, any Environmental Laws or any orders, requirements or
demands of Governmental Authorities related thereto applicable to the operations
of the Borrower, any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrower shall have no obligation hereunder to the
Administrative Agent, any Other Representative or any Lender with respect to
Environmental Costs or indemnified liabilities arising from (i) the gross
negligence or willful misconduct of the Administrative Agent, such Other
Representative, or any such Lender (or any of their respective directors,
officers, employees, agents, successors' and assigns) or (ii) legal proceedings
commenced against, the Administrative Agent, such Co-Agent or such Lender, as
the case may be, by any securityholder or creditor thereof arising out of and
based upon rights afforded any such securityholder or creditor solely in its
capacity as such. Notwithstanding the foregoing, except as provided in clause
(b) and (c) above, the Borrower shall have no obligation under this Section 11.5
to any Other Representative, the Administrative Agent or any Lender with respect
to any tax, levy, impost, duty, charge, fee, deduction or withholding imposed,
levied, collected, withheld or assessed by any Governmental Authority. The
agreements in this Section 11.5 shall survive repayment of the Notes and all
other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, each Other Representative, all
future holders of the Notes and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. Such
sale of participating interests need not be ratable as among the Revolving
Credit Commitments of such Lender. In the event of any such sale by a Lender of
a participating
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interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
pursuant to which any Lender shall sell any such participating interest shall
provide that such Lender shall retain the sole right and responsibility to
exercise such Lender's rights and enforce the Borrower's obligations hereunder,
including the right to consent to any amendment, supplement, modification or
waiver of any provision of this Agreement or any of the other Loan Documents,
provided that such participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver described in clause
(i) of the proviso to the second sentence of Section 11.1 (to the extent
applicable to the relevant participating interest) without the consent of the
Participant. The Borrower agrees that each Lender shall be entitled to the
benefits of Sections 4.9, 4.10, 4.11 and 4.12 and 11.1 without regard to whether
it has granted any participating interests, and that all amounts payable to a
Lender under Sections 4.9, 4.10, 4.11 and 4.12 shall be determined as if such
Lender had not granted any such participating interests.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time and from time to time assign to
any Lender or any Affiliate thereof or, with the prior written consent of the
Borrower and the Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial institution (an
"Assignee") all or any part of its rights and obligations under this Agreement
and the Notes, including, without limitation, its Commitments and Loans,
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that (i) no such transfer to
an Assignee (other than a Lender or any Affiliate thereof) shall be in an
aggregate principal amount less than $5,000,000 (other than in the case of an
assignment of all of a Lender's interests under this Agreement and the Notes),
(ii) if any Lender assigns all or any part of its rights and obligations under
this Agreement to one of its Affiliates in connection with or in contemplation
of the sale of its interest in such Affiliate, the Borrower's prior written
consent shall be required for such assignment (which consent shall not be
unreasonably withheld) and (iii) after giving effect to any such assignment
(other than an assignment of all of a Lender's interests under this Agreement
and the Notes), the assigning Lender shall retain Commitments aggregating not
less than $5,000,000. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall be released from its obligations under
this Agreement to the extent that such obligations shall have been expressly
assumed by the Assignee pursuant to such Assignment and Acceptance (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding the foregoing, no
Assignee, which as of the date of any assignment to it pursuant to this Section
11.6(c) would be entitled to receive any greater payment under Section 4.10 or
4.11 than the assigning Lender would have been entitled to receive as of such
date under such Sections with respect to the rights assigned, shall be entitled
to receive such payments unless the Borrower has expressly consented in writing
to waive this provision at the time of the assignment.
(d) The Administrative Agent shall maintain at its address
referred to in Section 11.2 a copy of each Assignment and Acceptance delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower and the
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Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $4,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrower. On or prior to such effective date, the assigning
Lender shall surrender the outstanding Notes held by it all or a portion of
which are being assigned, and the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent (in exchange for the outstanding Notes
of the assigning Lender) a new Revolving Credit Note and Swing Line Note, as the
case may be, to the order of such Assignee in an amount equal to (i) in the case
of a Revolving Credit Note, the lesser of (A) the amount of such Assignee's
Revolving Credit Commitment and (B) the aggregate principal amount of all
Revolving Credit Loans made by such Assignee, (ii) in the case of a Swing Line
Note, the lesser of (A) the Swing Line Commitment and (B) the aggregate
principal amount of all Swing Line Loans made by such Assignee, in each case
with respect to the relevant Commitment and/or Loans after giving effect to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note and Swing Line Note, as the case may be,
to the order of the assigning Lender in an amount equal to (i) in the case of a
Revolving Credit Note, the lesser of (A) the amount of such Lender's Revolving
Credit Commitment and (B) the aggregate principal amount of all Revolving Credit
Loans made by such Lender, and (ii) in the case of a Swing Line Note, the lesser
of (A) the Swing Line Commitment and (B) the aggregate principal amount of all
Swing Line Loans made by such Lender, in each case with respect to the relevant
Commitment and/or Loans after giving effect to such Assignment and Acceptance.
Each new Note shall be dated the Effective Date and shall otherwise be in the
form of the Note replaced thereby. The Notes surrendered by the assigning Lender
shall be returned by the Administrative Agent to the Borrower marked
"cancelled".
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 11.15, any and all financial information in
such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement. No assignment or
participation made or purported to be made to any Transferee shall be effective
if it would require the Borrower to make any filing with any Governmental
Authority or qualify any Loan or Note under the laws of any jurisdiction unless
the Borrower has expressly consented to make such filing or so qualify such Loan
or Note.
(g) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law, provided, that in no event shall the registration and processing fee
referred to in Section 11.6(e) be payable in connection with any such pledge or
assignment.
11.7 Adjustments; Set-off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Revolving
Credit Loans or the Reimbursement Obligations owing to it, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Revolving Credit Loans, or the Reimbursement Obligations,
as the case may be, owing to it, or interest thereon, such benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Revolving Credit Loans or the Reimbursement
Obligations, as the case may be, owing to it, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds with each of the Lenders (pro rata on
the basis of the outstanding Loans made by the Lenders); provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon the occurrence of an Event of Default under
Section 9(a), to set off and appropriate and apply against any amount then due
and payable under Section 9(a) any and all deposits (general or
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special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and
the Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent, the Other
Representatives and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Borrower, the Administrative Agent, any Other Representative or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
11.12 Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, the applicable Lender or the Administrative
Agent, as the case may be, at the address specified in Section 11.2 or
at such other address of which the Administrative Agent and the
Borrower shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any punitive damages.
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<PAGE> 66
11.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) none of the Administrative Agent, any Other Representative
nor any Lender has any fiduciary relationship with or duty to the
Borrower arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between Administrative
Agent, Other Representatives and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT, THE OTHER REPRESENTATIVES AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
11.15 Confidentiality. The Administrative Agent and each
Lender agrees to keep confidential any written or oral information (a) provided
to it by or on behalf of the Borrower or any of its Subsidiaries pursuant to or
in connection with this Agreement or (b) obtained by such Lender based on a
review of the books and records of the Borrower or any of its Subsidiaries;
provided, that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Transferee or prospective Transferee which agrees to comply with the provisions
of this Section 11.15, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, provided that such Lender shall
inform each such Person of the agreement under this Section 11.15 and shall be
responsible for any failure by any such Person referred to in this clause (iii)
to comply with this Agreement, (iv) upon the request or demand of any
Governmental Authority having jurisdiction over such Lender or to the extent
required in response to any order of any court or other Governmental Authority
or as shall otherwise be required pursuant to any Requirement of Law, provided
that, unless prohibited from doing so by any Requirement of Law or any order of
any Governmental Authority, such Lender shall notify the Borrower of any
disclosure pursuant to this clause (iv) as far in advance as is reasonably
practicable under such circumstances, (v) which has been publicly disclosed
other than in breach of this Agreement, (vi) in connection with the exercise of
any remedy hereunder or (vii) to any Governmental Authority in connection with
periodic regulatory examinations.
11.16 Continuation and Not Extinguishment. The parties hereto
which are parties as of the date hereof to the Existing Credit Agreement hereby
acknowledge and agree that they intend that this Agreement constitute an
amendment and restatement of the Existing Credit Agreement and that the Loans
outstanding hereunder on the Effective Date represent a continuation of the
loans under the Existing Credit Agreement and not an extinguishment thereof.
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<PAGE> 67
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
REMINGTON ARMS COMPANY, INC.
By:
-------------------------------------
Title:
The Administrative Agent:
THE CHASE MANHATTAN BANK
By:
-------------------------------------
Title:
The Joint Lead Arrangers:
CHASE SECURITIES INC.
By:
-------------------------------------
Title:
BANC OF AMERICA SECURITIES LLC
By:
-------------------------------------
Title:
The Syndication Agent:
BANK OF AMERICA, N.A.
By:
-------------------------------------
Title:
The Documentation Agent:
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
-------------------------------------
Title:
Co-Agents:
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<PAGE> 68
COMERICA BANK
By:
-------------------------------------
Title:
FIRST UNION NATIONAL BANK
By:
-------------------------------------
Title:
FLEET CAPITAL CORPORATION
By:
-------------------------------------
Title:
HSBC BANK USA
By:
-------------------------------------
Title:
NATIONAL CITY BANK
By:
-------------------------------------
Title:
63
<PAGE> 69
Lead Managers:
BANK ONE, NA
By:
-------------------------------------
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
-------------------------------------
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
-------------------------------------
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
-------------------------------------
Title:
WACHOVIA BANK, N.A.
By:
-------------------------------------
Title:
Participants:
THE BANK OF NEW YORK
By:
-------------------------------------
Title:
64
<PAGE> 70
Annex A
PRICING GRID
<TABLE>
<CAPTION>
======================================================================================================
Consolidated Leverage Applicable Margin for Applicable Margin for Commitment Fee
Ratio Eurodollar Loans ABR Loans
======================================================================================================
<S> <C> <C> <C>
$ 3.00 to 1.00 2.25% 1.25% 0.50%
- ------------------------------------------------------------------------------------------------------
< 3.00 to 1.00 2.00% 1.00% 0.50%
- ------------------------------------------------------------------------------------------------------
< 2.50 to 1.00 1.75% 0.75% 0.50%
- ------------------------------------------------------------------------------------------------------
< 2.00 to 1.00 1.50% 0.50% 0.375%
======================================================================================================
</TABLE>
65
<PAGE> 1
Exhibit 4.2
BORROWER STOCK PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 28, 2000, made by
REMINGTON ARMS COMPANY INC., a Delaware corporation (the "Borrower") in favor of
THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent (in such capacity, the "Administrative Agent") for the several banks and
other financial institutions (collectively, the "Lenders") from time to time
parties to the Amended and Restated Credit Agreement, dated as of April 28, 2000
(as the same may be amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, Chase Securities Inc
and Banc of America Securities LLC, as joint lead arrangers, Bank of America,
N.A., as syndication agent, Goldman Sachs Credit Partners, L.P., as
documentation agent (collectively the "Other Representatives"), the
Administrative Agent, and the Lenders.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Extensions of Credit (as defined in the Credit
Agreement) to the Borrower upon the terms and subject to the conditions set
forth in the Credit Agreement;
WHEREAS, the Borrower is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) issued by the Issuers (as
hereinafter defined); and
WHEREAS, Borrower has agreed pursuant to the Credit Agreement
to execute and deliver this Pledge Agreement to the Administrative Agent, for
the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises the Borrower
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as defined
therein.
(b) The following terms shall have the following
meanings:
"Additional Pledged Stock": as defined in Section 5(a).
"Agreement": this Pledge Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral": all of the Borrower's right, title and interest
in and to the Pledged Stock and all Proceeds thereof.
"Issuers": the collective reference to the companies
identified on Schedule 1 attached hereto as the issuers of the Pledged
Stock; individually, an "Issuer."
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency,
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<PAGE> 2
obligations and liabilities of the Borrower to the Administrative Agent, the
Other Representatives and the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, the Notes,
the Letters of Credit, the other Loan Documents, any Interest Rate Agreement
entered into with any Lender, any Guarantee Obligations of the Borrower referred
to in Section 8.4(b) of the Credit Agreement as to which any Lender is a
beneficiary and any other document made, delivered or given in connection with
any of the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a termination of
any transaction entered into pursuant to an Interest Rate Agreement entered into
with any Lender, amounts payable to any Lender in connection with any such
Guarantee Obligation, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all reasonable fees and disbursements of counsel
to the Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, stock options
or similar rights of any nature whatsoever or any investment property
(as defined in the Code) that may be issued to or held by the Borrower
while this Agreement is in effect, including Additional Pledged Stock;
provided that in no event shall more than 65% of the issued and
outstanding shares of capital stock of any Foreign Subsidiary be
Pledged Stock.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Borrower hereby
grants to the Administrative Agent, for the ratable benefit of the Lenders, a
security interest in the Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, and hereby agrees that it will
deliver or cause to be delivered to the Administrative Agent, for the ratable
benefit of the Lenders, all certificates representing the Pledged Stock no later
than the second Business Day following the date hereof.
3. Stock Powers. Concurrently with the delivery to the
Administrative Agent of each certificate representing any Pledged Stock pursuant
to paragraph 2 above, the Borrower shall deliver an undated stock power covering
such certificate, duly executed in blank by the Borrower with, if the
Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. The Borrower represents and
warrants that:
(a) The shares of Pledged Stock constitute 65% of the issued
and outstanding shares of all classes of the capital stock of each
Issuer held by the Borrower on the date hereof.
2
<PAGE> 3
(b) All the shares of the Pledged Stock issued by Subsidiaries
of the Borrower have been (or, with respect to Additional Pledged
Stock, when pledged to the Administrative Agent, will be) duly and
validly issued and are (or, with respect to Additional Pledged Stock,
when pledged to the Administrative Agent, will be) fully paid and
nonassessable.
(c) The Borrower is (or, with respect to Additional Pledged
Stock, when pledged to the Administrative Agent, will be) the record
and beneficial owner of, and has (or, with respect to Additional
Pledged Stock, when pledged to the Administrative Agent will have) good
and marketable title to, the Pledged Stock, free of any and all Liens
or options in favor of, or material adverse claims on any of the
Pledged Stock by, any other Person, except the security interest
created by this Agreement, Liens arising by operation of law and the
rights of Remington Licensing Corporation ("RLC") and Remington
Products, Inc. ("RPI") with respect to Pledged Stock and Additional
Pledged Stock of RLC pursuant to the Trademark Settlement Agreement
effective as of December 5, 1986 between Remington Arms Company, Inc.
(the predecessor in interest to the Borrower) and RPI (the "Trademark
Settlement Agreement").
(d) Upon delivery to the Administrative Agent of all stock
certificates evidencing any Pledged Stock, the security interest
created by this Agreement, assuming the continuing possession of the
Pledged Stock by the Administrative Agent, will constitute a valid and
perfected first priority security interest in the Collateral to the
extent provided in the Code, enforceable in accordance with its terms
against all creditors of the Borrower and any Persons purporting to
purchase any Collateral from the Borrower, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; provided, however, that the above representation and
warranty does not apply to any Lien arising by operation of law and
entitled to a priority over the security interest created by this
Agreement; provided, further, that the security interest created by
this Agreement in the Pledged Stock of the Mexican Company may not
constitute a valid and perfected security interest until it has been
registered in the shareholders' registry of the Mexican Company.
5. Covenants. The Borrower covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until payment in full of the Notes, the Reimbursement Obligations and
the other Obligations then due and owing, the termination of the Commitments and
the expiration, termination or return to the Issuing Lender of the Letters of
Credit:
(a) If the Borrower shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), stock option or similar
rights, whether in addition to, in substitution of, as a conversion of,
or in exchange for any Pledged Stock, or otherwise in respect thereof
(collectively, the "Additional Pledged Stock"), the Borrower shall
accept the same as the agent of the Administrative Agent and the
Lenders, hold the same in trust for the Administrative Agent, the Other
Representatives and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by the
Borrower to the Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by
the Borrower and with, if the Administrative Agent so requests,
signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Stock upon
the liquidation or dissolution of any Issuer (other than pursuant to a
transaction permitted under Sections 8.5 or 8.6 of the Credit
Agreement) shall be paid over to the Administrative Agent to be held by
it hereunder as additional collateral security for the Obligations, and
in case any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or
3
<PAGE> 4
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof (other than pursuant to a transaction permitted
under Sections 8.5 or 8.6 of the Credit Agreement), the property so
distributed shall be delivered to the Administrative Agent to be held
by it hereunder as additional collateral security for the Obligations.
If any such sums of money or property so paid or distributed in
respect of the Pledged Stock shall be received by the Borrower, the
Borrower shall, until such money or property is paid or delivered to
the Administrative Agent, hold such money or property in trust for the
Administrative Agent, the Other Representatives and the Lenders,
segregated from other funds of the Borrower, as additional collateral
security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent, the Borrower will not (1) vote to enable, or take any other
action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible
into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, to any Person
other than the Borrower, (2) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral, except as permitted by Sections 8.5 or 8.6 of the Credit
Agreement, or (3) create, incur or permit to exist any Lien or option
in favor of, or any material adverse claim of any Person with respect
to, any of the Collateral, or any interest therein, except for the
security interests created by this Agreement and Liens arising by
operation of law.
(c) The Borrower shall defend the security interest created by
this Agreement as a perfected security interest against claims and
demands of all Persons whomsoever. At any time and from time to time,
upon the written request of the Administrative Agent, and at the sole
expense of the Borrower, the Borrower will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as the Administrative Agent may reasonably request for
the purposes of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted. In the event
that an Event of Default has occurred and is continuing, if any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any instrument (including any promissory note) or
chattel paper (in each case as defined in the Code), such instrument or
chattel paper shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative
Agent, to be held as Collateral pursuant to this Agreement. Prior to
such delivery, the Pledgor shall hold all such instruments and chattel
paper in trust for the Administrative Agent, for the ratable benefit of
the Lenders, and shall not commingle any of the foregoing with any
assets of the Pledgor.
(d) The Borrower shall pay, and save the Administrative Agent,
the Other Representatives and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other similar taxes which may be
payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated
by this Agreement.
(e) The Borrower shall use its best efforts to cause the
security interest created by this Agreement in the Pledged Stock of the
Mexican Company to be registered in the shareholders' registry of the
Mexican Company within ten days of the Effective Date, but in any event
as promptly as practicable.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Administrative Agent shall have
given notice to the Borrower of the Administrative Agent's intent to exercise
its corresponding rights pursuant to paragraph 7 below, the Borrower shall be
permitted to receive all dividends and distributions paid or made in respect of
the Pledged Stock and to exercise all voting and corporate and other rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which would materially impair
the Collateral (other than pursuant to a transaction,
4
<PAGE> 5
permitted under the Credit Agreement) or result in any violation of any
provision of the Credit Agreement, the Notes, this Agreement or any other Loan
Document.
7. Rights of the Lenders, the Co-Agents and the Administrative
Agent. If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice to the Borrower of its intent to exercise
such rights, (i) the Administrative Agent shall have the right to receive any
and all cash dividends paid in respect of the Pledged Stock and make application
thereof to the Obligations in such order as the Administrative Agent may
determine and (ii) the Administrative Agent shall have the right to cause all of
the Pledged Stock to be registered in the name of the Administrative Agent or
its nominee, and the Administrative Agent or its nominee may thereafter exercise
(x) all voting, corporate and other rights pertaining to such Pledged Stock at
any meeting of shareholders of any Issuer or otherwise and (y) any and all
rights of conversion, exchange, subscription and any other rights, privileges or
options pertaining to such Pledged Stock as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by the Borrower or the Administrative Agent of any
right, privilege or option pertaining to such Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the Pledged Stock
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine), all without liability (other than for its gross negligence or
willful misconduct) except to account for property actually received by it, but
the Administrative Agent shall have no duty to the Borrower to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing; provided that the Administrative Agent shall not exercise
any voting or other consensual rights pertaining to the Pledged Stock in any way
that would constitute an exercise of the remedies described in paragraph 8 other
than in accordance with such paragraph 8.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the
Obligations. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Borrower or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase
or otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Administrative Agent, any Other Representative or any
Lender or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent, any Other
Representative or any Lender shall have the right, to the extent permitted by
law, upon any such sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Borrower,
which right or equity is hereby waived or released. The Administrative Agent
shall apply any Proceeds from time to time held by it and the net proceeds of
any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent, the Other Representatives and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel to the Administrative Agent, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect, and only after
such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Administrative Agent account for the surplus,
if any, to the Borrower. To the extent permitted by applicable law, the Borrower
waives all claims, damages and demands it may acquire against the Administrative
Agent, any Other
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<PAGE> 6
Representative or any Lender arising out of the repossession, retention or sale
of the Collateral, other than any such claims, damages and demands that may
arise from the gross negligence or willful misconduct of any of them. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition. The Borrower shall remain liable
for any deficiency if the proceeds of any sale or other disposition of
Collateral are insufficient to pay the then outstanding Obligations and the
fees and disbursements of any attorneys employed by the Administrative Agent,
any Other Representative or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to paragraph 8 hereof, and if in the reasonable
opinion of the Administrative Agent it is necessary or reasonably advisable to
have the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, the Borrower will use its best efforts to
cause each Issuer thereof (i) to execute and deliver, and cause the directors
and officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
reasonable opinion of the Administrative Agent, necessary or reasonably
advisable to register the Pledged Stock to be sold, or that portion thereof to
be sold under the provisions of the Securities Act, (ii) to use its best efforts
to cause the registration statement relating thereto to become effective and to
remain effective for a period of not more than one year from the date of the
first public offering of the Pledged Stock, or that portion thereof to be sold,
ending when all such Pledged Stock is sold, and (iii) to make all amendments
thereto and/or to the related prospectus which, in the reasonable opinion of the
Administrative Agent, are necessary or reasonably advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. If the Administrative
Agent shall determine to exercise its right to sell any or all of the Pledged
Stock pursuant to paragraph 8 hereof, and if in the reasonable opinion of the
Administrative Agent it is necessary or reasonably advisable to comply with the
provisions of the securities or "Blue Sky" laws of any jurisdiction, the
Borrower agrees to use its best efforts to cause each such Issuer to comply with
the provisions of the securities or "Blue Sky" laws of any and all jurisdictions
which the Administrative Agent shall reasonably designate and to make available
to its security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Borrower recognizes that the Administrative Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Borrower acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) The Borrower further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Stock pursuant to this paragraph 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Borrower further agrees that a breach of any of the
covenants contained in this Section will cause irreparable injury to the
Administrative Agent, the Other Representatives and the Lenders, that the
Administrative Agent and the Lenders have no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant contained in
this Section shall be specifically enforceable against the Borrower, and, to the
extent permitted by law, the Borrower hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except for
a defense that no Event of Default has occurred and is continuing under the
Credit Agreement.
6
<PAGE> 7
10. Irrevocable Authorization and Instruction to Issuers. The
Borrower hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Borrower, and the Borrower agrees that each Issuer
shall be fully protected in so complying.
11. Administrative Agent's Appointment as Attorney-in-Fact.
(a) The Borrower hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent of the Administrative Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Borrower and in the name of
the Borrower or in the Administrative Agent's own name, from time to time in the
Administrative Agent's discretion, in the event that an Event of Default has
occurred and is continuing, and to the extent permitted by law, to take any and
all appropriate action and to execute any and all documents and instruments
which may be necessary or reasonably desirable to accomplish the purposes of
this Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) The Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 11(a). All powers, authorizations and agencies contained in this
Agreement with respect to the Collateral are powers coupled with an interest and
are irrevocable until payment in full of the Notes, the Reimbursement
Obligations and the other Obligations then due and owing, the termination of the
Commitments and the expiration, termination or return to the Issuing Lender of
the Letters of Credit.
12. Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Administrative Agent deals
with similar securities and property for its own account. None of the
Administrative Agent, any Other Representative, any Lender nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Borrower or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Borrower authorizes the Administrative Agent to file
financing statements with respect to the Collateral without the signature of the
Borrower in such form and in such filing offices as the Administrative Agent
reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A carbon, photostatic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction.
14. Authority of Administrative Agent. The Borrower
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Administrative
Agent, the Other Representatives and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Borrower, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Lenders with full and valid authority so to act or refrain from
acting, and neither the Borrower nor any Issuer shall be under any obligation to
make any inquiry respecting such authority.
7
<PAGE> 8
15. Notices. All notices, requests and demands under this
Agreement shall be given in accordance with Section 11.2 of the Credit
Agreement, except that notices to the Issuers shall be given at the addresses
set forth under their signatures below.
16. Release of Collateral and Termination. (a) At such time as
the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing shall have occurred, the Commitments have been
terminated and the Letters of Credit have expired, terminated or been returned
to the Issuing Lender, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and the Borrower
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Borrower. Upon request of the Borrower following any such termination, the
Administrative Agent shall deliver (at the sole cost and expense of the
Borrower) to the Borrower any Collateral held by the Administrative Agent
hereunder, and execute and deliver (at the sole cost and expense of the
Borrower) to the Borrower such documents as the Borrower shall reasonably
request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Borrower in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Borrower (at the sole cost and expense of the Borrower) all releases or other
documents necessary or reasonably desirable for the release of the Liens created
hereby on such Collateral.
(c) The Administrative Agent, on behalf of the Lenders, hereby
acknowledges that, notwithstanding the provisions of this Agreement, if certain
bankruptcy or insolvency-related events occur with respect to the Borrower, the
Borrower (or the Administrative Agent and the Lenders, if the Administrative
Agent has exercised its rights under paragraph 8 hereof) may be contractually
required under Section 4(a) of Article II of the Trademark Settlement Agreement
to sell any Pledged Stock of RLC (free of any Liens created by this Agreement)
to RLC or to RPI, at their option, at such shares' book value, or, under certain
circumstances, at their fair market value. The Administrative Agent, on behalf
of the Lenders, agrees to be bound by the foregoing provisions of the Trademark
Settlement Agreement and to release the Lien of this Agreement on the Pledged
Stock of RLC whenever and if so required.
17. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Borrower and the Administrative Agent in accordance with Section 11.1 of the
Credit Agreement.
(b) Neither the Administrative Agent, any Other Representative
nor any Lender shall by any act (except by a written instrument pursuant to
paragraph 18(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent, any Other Representative or any Lender, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent, any Other Representative or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent, such Other
Representative or such Lender would otherwise have on any future occasion.
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<PAGE> 9
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
19. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or to be taken into consideration in the interpretation
hereof.
20. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Borrower and shall inure to the benefit
of the Administrative Agent, the Other Representatives and the Lenders and their
successors and assigns.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
REMINGTON ARMS COMPANY, INC.
By:
-------------------------------------
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
-------------------------------
Title:
9
<PAGE> 10
SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
Stock
Class of Certificate No. of
Issuer Stock* No. Shares
- --------------------------------- -------- ----------- ------
<S> <C> <C> <C>
Remington International, Ltd. 650
Industrias Tecnos, S.A. de C.V. Class I-B 260,000
Class II-B 99,740,0000
Remington Licensing Corporation
</TABLE>
- ---------------
* Stock is common stock unless otherwise indicated.
<PAGE> 1
Exhibit 4.3
BORROWER SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of April 28, 2000, made by
REMINGTON ARMS COMPANY INC., a Delaware corporation (the "Borrower"), in favor
of THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent (in such capacity, the "Administrative Agent") for the several banks and
other financial institutions (the "Lenders") from time to time parties to the
Amended and Restated Credit Agreement, dated as of April 28, 2000 (as the same
may be amended, supplemented, waived or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, Chase Securities Inc. and Banc of
America Securities LLC, as joint lead arrangers, Bank of America, N.A., as
Syndication agent, Goldman Sachs Credit Partners, L.P., as documentation agent
[collectively the AOther Representatives@] the Administrative Agent.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Extensions of Credit to the Borrower upon the terms and
subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligations of the
Lenders to make their respective initial Extensions of Credit to the Borrower
under the Credit Agreement that the Borrower shall have executed and delivered
this Agreement to the Administrative Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower thereunder, the Borrower hereby agrees with
the Administrative Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as defined
therein. The following terms are used herein as defined in the Uniform
Commercial Code in effect in the State of New York from time to time: Accounts,
Chattel Paper, Documents, Equipment, Farm Products, Fixtures, General
Intangibles, Instruments, Inventory and Proceeds. The following terms shall have
the following meanings:
"Agreement": this Security Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
"Contracts": the Purchase Agreement and all other contracts,
agreements, instruments and indentures in any form, and portions
thereof, to which the Borrower is a party or under which the Borrower
has any right, title or interest or to which the Borrower or any
property of the Borrower is subject, as the same may from time to time
be amended, supplemented or otherwise modified, including, without
limitation, (a) all rights of the Borrower to receive moneys due and to
become due to it thereunder or in connection therewith, (b) all rights
of the Borrower to damages arising out of, or for, breach or default in
respect thereof and (c) all rights of the Borrower to perform and to
exercise all remedies thereunder, in each case to the extent the grant
by the Borrower of a security interest pursuant to this Agreement in
its
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<PAGE> 2
right, title and interest in such contract, agreement, instrument or
indenture is not prohibited by such contract, agreement, instrument or
indenture without the consent of any other party thereto, would not
give any other party to such contract, agreement, instrument or
indenture the right to terminate its obligations thereunder, or is
permitted with consent if all necessary consents to such grant of a
security interest have been obtained from the other parties thereto
(it being understood that the foregoing shall not be deemed to
obligate the Borrower to obtain such consents); provided, that the
foregoing limitation shall not affect, limit, restrict or impair the
grant by the Borrower of a security interest pursuant to this
Agreement in any Account or any money or other amounts due or to
become due under any such contract, agreement, instrument or
indenture.
"Copyright Licenses": all United States written license
agreements with any unaffiliated Person in connection with any of the
Copyrights or such other Person's copyrights, whether the Borrower is a
licensor or a licensee under any such license agreement, subject, in
each case, to the terms of such license agreements, and the right to
prepare for sale, sell and advertise for sale, all Inventory now or
hereafter covered by such licenses.
"Copyrights": all United States copyrights, whether or not the
underlying works of authorship have been published, and whether or not
the copyrights have been registered, copyright registrations and
applications, and all works of authorship and other intellectual
property rights therein, including, without limitation, (a) all
renewals thereof, (b) all income, royalties, damages and other payments
now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all licenses entered into in
connection therewith, and damages and payments for past or future
infringements thereof), (c) the right to sue for past, present and
future infringements and misappropriations thereof, and (d) all rights
corresponding thereto throughout the world and all other rights of any
kind whatsoever of the Borrower accruing thereunder or pertaining
thereto.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent, the Other
Representatives and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, the Letters of Credit, the other Loan
Documents, any Interest Rate Agreement entered into with any Lender,
any Guarantee Obligations of the Borrower referred to in Section 8.4(b)
of the Credit Agreement as to which any Lender is a beneficiary and any
other document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a
termination of any transaction entered into pursuant to an Interest
Rate Agreement entered into with any Lender, amounts payable to any
Lender in connection with any such Guarantee Obligation, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Patent License": all United States written license agreements
with any unaffiliated Person in connection with any of the Patents or
such other Person's patents, whether the Borrower is a licensor or a
licensee under any such license agreement, including, without
limitation, the license agreements listed in Schedule II attached
hereto and made a part hereof, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and
advertise for sale, all Inventory now or hereafter covered by such
licenses.
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<PAGE> 3
"Patents": all United States patents, patents applications and
patentable inventions, including, without limitation, all patents and
patent applications identified in Schedule II attached hereto and made
a part hereof, and including without limitation (a) all inventions and
improvements described and claimed therein, and patentable inventions,
(b) the right to sue or otherwise recover for any and all past, present
and future infringements and misappropriations thereof, (c) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (d) all
rights corresponding thereto in the United States and all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals,
and extensions thereof, all improvements thereon, and all other rights
of any kind whatsoever of the Borrower accruing thereunder or
pertaining thereto.
"Trademark License": all United States written license
agreements with any unaffiliated Person in connection with any of the
Trademarks or such other Person's names or trademarks, whether the
Borrower is a licensor or a licensee under any such license agreement,
including, without limitation, the license agreements listed in
Schedule I attached hereto and made a part hereof, subject, in each
case, to the terms of such license agreements, and the right to prepare
for sale, sell and advertise for sale, all Inventory now or hereafter
covered by such licenses.
"Trademarks": all United States trademarks, service marks,
trade names, trade dress or other indicia of trade origin, trademark
and service mark registrations, and applications for trademark or
service mark registrations (except for "intent to use" applications for
trademark or service mark registrations filed pursuant to Section 1(b)
of the Lanham Act, unless and until an Amendment to Allege Use or a
Statement of Use under Sections 1(c) and 1(d) of said Act has been
filed), and any renewals thereof, including, without limitation, each
registration and application identified in Schedule I attached hereto
and made a part hereof, and including without limitation (a) the right
to sue or otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (b) all income, royalties,
damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments
for past or future infringements thereof), and (c) all rights
corresponding thereto in the United States and all other rights of any
kind whatsoever of the Borrower accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each such trademark,
service mark, trade name, trade dress or other indicia of trade origin.
"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2 Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, the Borrower hereby
assigns, pledges and grants, subject to existing licenses to use Patents or
Trademarks granted by the Borrower in the ordinary course of business, to the
Administrative Agent, for the ratable benefit of the Lenders, a security
interest in and Lien on all of the following property now owned or at any time
hereafter acquired by the Borrower or in which the Borrower now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Accounts;
3
<PAGE> 4
<TABLE>
<S> <C>
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment (other than motor vehicles
covered by certificate of title statutes);
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Patent Licenses;
(x) all Patents;
(xi) all Trademark Licenses;
(xii) all Trademarks; and
(xiii) to the extent not otherwise included,
all Proceeds and products of any and all of the foregoing;
</TABLE>
provided, that the foregoing grant of a security interest with respect to
General Intangibles, Patent Licenses and Trademark Licenses shall not include a
security interest in, and the Collateral shall not include, any license or
permit with a Governmental Authority or Patent License or Trademark License with
or issued by Persons other than a Subsidiary of the Borrower that would
otherwise be included in the Collateral to the extent that the grant by the
Borrower of such security interest is prohibited by the terms and provisions of
the written agreement or document or instrument creating or evidencing such
license or permit or Patent License or Trademark License (or, if such grant of a
security interest is permitted with the consent of a Governmental Authority or
any other party thereto, to the extent all necessary consents to such grant have
not been obtained therefrom, it being understood that the Borrower shall not be
deemed to be obliged to obtain such consents), or such agreement, document or
instrument gives the other party thereto the right to terminate such license or
permit with a Governmental Authority or Patent License or Trademark License in
the event of the grant of a security interest with respect thereto. The Borrower
shall use its reasonable best efforts to (i) avoid entering into agreements or
contracts which would prohibit the Borrower from granting a security interest in
such licenses or permits, Patent Licenses or Trademark Licenses pursuant to the
terms of this Agreement and (ii) cause each such license, permit, Patent License
or Trademark License entered into, created or made by it after the Effective
Date to be subject to the Lien and security interest created pursuant to this
Agreement.
4
<PAGE> 5
3 Rights of Administrative Agent, Other Representatives
and Lenders; Limitations on Administrative Agent's, Other Representative's and
Lenders' Obligations.
(a) No Liability of Administrative Agent or Lenders under
Accounts or Contracts. None of the Administrative Agent, any Other
Representative nor any Lender shall have any obligation or liability under any
Account (or any agreement giving rise thereto) or Contract by reason of or
arising out of this Agreement or the receipt by the Administrative Agent, any
Other Representative or any such Lender of any payment relating to such Account
or Contract pursuant hereto, nor shall the Administrative Agent, any Other
Representative or any Lender be obligated in any manner to perform any of the
obligations of the Borrower under or pursuant to any Account (or any agreement
giving rise thereto) or Contract, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any Account (or any agreement
giving rise thereto) or Contract, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
(b) Notice to Account Debtors. Upon the request of the
Administrative Agent at any time after the occurrence and during the continuance
of an Event of Default, the Borrower shall notify the account debtors on the
Accounts and the parties to the Contracts that the Accounts and Contracts have
been assigned to the Administrative Agent, for the ratable benefit of the
Lenders, and that payments in respect thereof shall be made directly to the
Administrative Agent. At any time and from time to time after the occurrence and
during the continuance of an Event of Default, the Administrative Agent may in
its own name or in the name of others communicate with account debtors on the
Accounts and the parties to the Contracts to verify with them to its
satisfaction the existence, amount and terms of any Accounts or Contracts.
(c) Collections on Accounts. If required by the Administrative
Agent at any time when an Event of Default has occurred and is continuing, any
payments of Accounts, when collected by the Borrower, shall be forthwith (and,
in any event, within two Business Days of receipt by the Borrower) transferred
by the Borrower to the Administrative Agent, subject to disposition by the
Administrative Agent for the account of the Lenders only, as hereinafter
provided. Until so turned over, all such payments shall be held by the Borrower
in trust for the benefit of the Administrative Agent and the Lenders, segregated
from other funds of the Borrower. All Proceeds constituting collections of
Accounts while held by the Administrative Agent (or by the Borrower in trust for
the benefit of the Administrative Agent, the Other Representatives and the
Lenders) shall continue to be collateral security for all of the Obligations and
shall not constitute payment thereof until applied as hereinafter provided. At
any time when an Event of Default has occurred and is continuing, at the
Administrative Agent's election, the Administrative Agent shall hold all or any
part of such funds on account of the Obligations (whether matured or unmatured)
and may apply such funds to the obligations then due and owing, and any part of
such funds which the Administrative Agent does not so apply shall be paid over
from time to time by the Administrative Agent to the Borrower or to whomsoever
may be lawfully entitled to receive the same. At any time when an Event of
Default has occurred and is continuing, at the Administrative Agent's request,
the Borrower shall deliver to the Administrative Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Accounts, including, without limitation, all statements
relating to the Accounts.
4 Representations and Warranties. The Borrower hereby
represents and warrants that:
(a) Title; No Other Liens. Except for the Lien granted to
the Administrative Agent, for the ratable benefit of the Lenders,
pursuant to this Agreement and the other Liens permitted to exist on
the Collateral pursuant to the Credit Agreement and the other Loan
Documents, ( including without limitation Liens permitted to exist
pursuant to Section 8.3 of the Credit Agreement) the Borrower owns each
item of the Collateral free and clear of any and all Liens. No security
agreement, financing statement or other public notice similar in effect
with respect to all or any part of the Collateral is on file or of
record in any public office, except such as may have been filed in
favor of the Administrative Agent, for the ratable benefit of the
Lenders, pursuant to this Agreement, or as may be permitted pursuant to
the Loan Documents.
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<PAGE> 6
(b) Perfected First Priority Liens. (i) This Agreement is
effective to create, as collateral security for the Obligations, valid
and enforceable Liens on the Collateral in favor of the Administrative
Agent, for the ratable benefit of the Lenders, except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditor=s rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(ii) Except with regard to Liens (if any) on Specified
Assets, upon the completion of the Filings, and the delivery to and
continuing possession by the Administrative Agent of all Instruments,
Chattel Paper and Documents a security interest in which is perfected
by possession, the Liens created pursuant to this Agreement will
constitute valid Liens on and (to the extent provided herein)
perfected security interests in the Collateral in favor of the
Administrative Agent for the ratable benefit of the Lenders, and will
be prior to all other Liens of all other Persons other than Permitted
Liens, and enforceable as such as against all other Persons other than
Ordinary Course Buyers, except to the extent that the recording of an
assignment or other transfer of title to the Administrative Agent or
the recording of other applicable documents in the United States
Patent and Trademark Office or United States Copyright Office may be
necessary for perfection or enforceability, and except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement
of creditors= rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) or
by an implied covenant of good faith and fair dealing. As used in this
Section 4(b)(ii), the following terms shall have the following
meanings:
AFilings@: the filing or recording of the Financing
Statements, any Patent and Trademark Security Agreement as set
forth in Schedule __, and any filings after the Closing Date
in any other jurisdiction as may be necessary under any
Requirement of Law.
AFinancing Statements@: the financing statements
delivered to the Administrative Agent by the Borrower on the
Closing Date for filing in the jurisdictions listed in
Schedule 6.1(m) to the Credit Agreement.
AOrdinary Course Buyers@: with respect to goods only,
buyers in the ordinary course of business to the extent
provided in Section 9-307(1) of the Uniform Commercial Code as
in effect from time to time in the relevant jurisdiction.
APermitted Liens@: Liens permitted pursuant to the
Loan Documents, including without limitation those permitted
to exist pursuant to subsection 8.3 of the Credit Agreement.
ASpecified Assets@: the following property and
assets of the Borrower:
(1) Equipment constituting Fixtures;
(2) Patents, Patent Licenses, Trademarks and
Trademark Licenses to the extent that (a) Liens
thereon which cannot be perfected by the filing of
financing statements under the Uniform Commercial
Code or by the filing and acceptance thereof in the
United States Patent and Trademark Office or (b) such
Patents, Patent Licenses, Trademarks and Trademark
Licenses are not, individually or in the aggregate,
material to the business of Grantor and its
Subsidiaries taken as a whole;
(3) Copyrights and Copyright Licenses and
Accounts or receivables arising therefrom to the
extent that the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction is not
applicable to the creation or perfection of Liens
thereon;
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(4) Collateral for which the perfection of
Liens thereon requires filings in or other actions
under the laws of jurisdictions outside the United
States of America, any State, territory or dependency
thereof or the District of Columbia;
(5) Contracts, Accounts or receivables
subject to the Assignment of Claims Act;
(6) goods included in Collateral received by
any Person for Asale or return@ within the meaning of
Section 2-326 of the Uniform Commercial Code of the
applicable jurisdiction, to the extent of claims of
creditors of such Person;
(7) Proceeds of Accounts, receivables of
Inventory which do not themselves constitute
Collateral or which have not been transferred to or
deposited in the Collateral Proceeds Account (if
any); and
(8) Equipment at various [sales offices]
with a fair market value of less than $10,000 per
sales office and mobile goods.
(c) Accounts. The places where the Borrower keeps its records
concerning the Accounts constituting Collateral are 870 Remington
Drive, Madison, N.C. 27025 or such other location or locations of which
the Borrower shall have provided prior written notice to the
Administrative Agent pursuant to Section 5(p).
(d) Consents. Except as set forth in Schedules I and II hereto
no consent of any party (other than the Borrower) to any Patent License
or Trademark License constituting Collateral or any obligor in respect
of any material Account constituting Collateral or which owes in the
aggregate a material portion of all the Accounts constituting
Collateral is required, or purports to be required, to be obtained by
or on behalf of the Borrower in connection with the execution, delivery
and performance of this Agreement that has not been obtained. Each
Patent License, Trademark License and Account constituting Collateral
is in full force and effect and constitutes a valid and legally
enforceable obligation of the Borrower and (to the knowledge of the
Borrower) each other party thereto except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditor's rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and except to the extent the failure
of any such Patent License, Trademark License or Account to be in full
force and effect or valid or legally enforceable would not be
reasonably expected, in the aggregate, to have a material adverse
effect on the value of the Collateral (as defined in the Credit
Agreement). Except as set forth in Schedules I and II hereto, no
consent or authorization of, filing with or other act by or in respect
of any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of any of
the Patent Licenses, Trademark Licenses or Accounts constituting
Collateral by any party thereto other than those which have been duly
obtained, made or performed and are in full force and effect and those
the failure of which to make or obtain would not be reasonably
expected, in the aggregate, to have a material adverse effect on the
value of the Collateral (as defined in the Credit Agreement). Except as
set forth in Schedules I and II hereto, neither the Borrower nor (to
the knowledge of the Borrower) any other party to any Patent License,
Trademark License or Account constituting Collateral is in default in
the performance or observance of any of the terms thereof, except for
such defaults as would not reasonably be expected, in the aggregate, to
have a material adverse effect on the value of the Collateral (as
defined in the Credit Agreement). The right, title and interest of the
Borrower in, to and under each Patent License, Trademark License and
Account constituting Collateral are not subject to any defense, offset,
counterclaim or claim which would be reasonably expected, either
individually or in the aggregate, to have a material adverse effect on
the value of the Collateral (as defined in the Credit Agreement).
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<PAGE> 8
(e) Location of Tangible Property. The Inventory constituting
Collateral and the Equipment constituting Collateral are kept at the
locations listed in Schedule III hereto and/or such other locations of
which the Borrower shall provide written notice to the Administrative
Agent pursuant to Section 5(p).
(f) Chief Executive Office. The Borrower's chief executive
office and chief place of business is located at 870 Remington Drive,
Madison, N.C. 27025 or such other location of which the Borrower shall
have provided written notice to the Administrative Agent pursuant to
Section 5(p).
(g) Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
(h) Patents and Trademarks. Schedules I and II hereto include
all Trademarks and Patents owned by the Borrower in its own name as of
the date hereof and all material Trademark Licenses and all material
Patent Licenses owned by the Borrower in its own name as of the date
hereof.
(i) Governmental Obligors. As of the Effective Date, none of
the Obligors on any Accounts, and none of the parties to any Contracts
constituting Collateral, is a Governmental Authority, except for any
such Accounts or Contracts that are not material in relation to the
business of the Borrower and its Subsidiaries, taken as a whole.
(j) Copyrights. As of the date hereof, the Borrower does not
own any Copyrights and is not a party to any Copyright Licenses which
are material to the business of the Borrower and its Subsidiaries,
taken as a whole.
The Borrower agrees that the foregoing representations and
warranties shall be deemed to have been made by the Borrower on and as of each
date on which an Extension of Credit is made by the Lenders to the Borrower
under the Credit Agreement, in each case as though made on and as of each such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date).
5 Covenants. The Borrower covenants and agrees with the
Administrative Agent and the Lenders and, with respect to Section 5(a), the
Administrative Agent covenants and agrees with the Borrower, that, from and
after the date of this Agreement until the payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit:
(a) Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the written request of
the Administrative Agent or the Borrower, as the case may be, and at
the sole expense of the Borrower, the Borrower or the Administrative
Agent, as the case may be, will promptly and duly execute and deliver
such further instruments and documents and take such further action as
the Administrative Agent or the Borrower may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with
respect to the Liens created hereby. The Borrower also hereby
authorizes the Administrative Agent to file any such financing or
continuation statement without the signature of the Borrower to the
extent permitted by applicable law. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. The Administrative Agent
agrees to notify the Borrower and the Borrower agrees to notify the
Administrative Agent of any financing or continuation statement filed
by it pursuant to this Section 5(a), provided that any failure to give
any such notice shall not affect the validity or effectiveness of any
such filing. Unless an Event of Default shall have occurred and be
continuing, the Borrower shall be entitled to retain possession of all
Collateral evidenced by any Instrument or Chattel Paper, and shall hold
all such Collateral in trust for the Administrative Agent, for the
ratable benefit of the Lenders, and shall not commingle any of such
Collateral with any other assets of the Borrower. In the event an Event
of Default shall have occurred and be continuing, upon the request of
the Administrative Agent, such Collateral shall be immediately
delivered to the Administrative Agent, duly endorsed in a manner
satisfactory to the
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<PAGE> 9
Administrative Agent, to be held as Collateral pursuant to this
Agreement. The Borrower shall not permit any other Person to possess
any such Collateral at any time other than in connection with a
transaction permitted under Section 8.14 of the Credit Agreement.
(b) Indemnification. The Borrower agrees to pay, and to
save the Administrative Agent, the Other Representatives and the
Lenders harmless from, any and all liabilities and reasonable costs
and expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay by the
Borrower in paying, any and all excise, sales or other similar taxes
which may be payable or determined to be payable with respect to any
of the Collateral, (ii) with respect to, or resulting from, any delay
by the Borrower in complying with any material Requirement of Law
applicable to any of the Collateral or (iii) in connection with any of
the transactions contemplated by this Agreement, provided that such
indemnity shall not, as to the Administrative Agent, any Other
Representative or any Lender, be available to the extent that such
liabilities, costs and expenses resulted from the gross negligence or
willful misconduct of the Administrative Agent, any Other
Representative or any Lender. In any suit, proceeding or action
brought by the Administrative Agent, any Other Representative or any
Lender under any Account for any sum owing thereunder, or to enforce
any provisions of any Account, the Borrower will save, indemnify and
keep the Administrative Agent, such Other Representative and such
Lender harmless from and against all expense, loss or damage suffered
by reason of any defense, setoff, counterclaim, recoupment or
reduction or liability whatsoever of the account debtor thereunder,
arising out of a material breach by the Borrower of any obligation
thereunder.
(c) Maintenance of Records. The Borrower will keep and
maintain at its own cost and expense reasonably satisfactory and
complete records of the Collateral, including, without limitation, a
record of all payments received and all credits granted with respect to
the Accounts constituting Collateral. For the Administrative Agent's
and the Lenders' further security, the Administrative Agent, for the
ratable benefit of the Lenders, shall have a security interest in all
of the Borrower's books and records pertaining to the Collateral, and
the Borrower shall permit the Administrative Agent or its
representatives to review such books and records upon reasonable
advance notice during normal business hours at the location where such
books and records are kept and at the reasonable request of the
Administrative Agent.
(d) Right of Inspection. Upon reasonable advance notice
to the Borrower and at reasonable intervals, or at any time and from
time to time after the occurrence and during the continuance of an
Event of Default, the Administrative Agent and the Lenders shall have
reasonable access during normal business hours to all the books,
correspondence and records of the Borrower, and the Administrative
Agent and the Lenders and their respective representatives may examine
the same, and to the extent reasonable take extracts therefrom and
make photocopies thereof, and the Borrower agrees to render to the
Administrative Agent and the Lenders, at the Borrower's reasonable
cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. The Administrative Agent and
the Lenders and their respective representatives shall also have the
right upon reasonable advance notice to the Borrower to enter during
normal business hours into and upon any premises where any of the
Inventory or Equipment constituting Collateral is located for the
purpose of inspecting the same, observing its use or otherwise
protecting its interests therein.
(e) Compliance with Laws, etc. The Borrower will comply
in all material respects with all Requirements of Law applicable to
the Collateral or any part thereof, except to the extent that the
failure to so comply would not be reasonably expected to materially
adversely affect, in the aggregate, the Administrative Agent's or the
Lenders' rights hereunder, the priority of their Liens on the
Collateral or the value of the Collateral (as defined in the Credit
Agreement).
(f) Compliance with Contractual Obligations. The Borrower
will perform and comply in all material respects with all its
Contractual Obligations relating to the Collateral, unless (i) such
performance or compliance is fully excused by breach by the other
party or parties thereto or (ii) such failure to comply
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<PAGE> 10
or perform would not be reasonably expected, in the aggregate, to have
a material adverse effect on the value of the Collateral (as defined
in the Credit Agreement).
(g) Payment of Obligations. The Borrower will pay
promptly when due all taxes, assessments and governmental charges or
levies imposed upon the Collateral, as well as all claims of any kind
(including, without limitation, claims for labor, materials and
supplies) against or with respect to the Collateral, except that no
such tax, assessment, charge or levy need be paid if (i) the validity
thereof is being contested in good faith by appropriate proceedings
diligently conducted and (ii) such tax, assessment, charge or levy is
adequately reserved against on the Borrower's books in accordance with
GAAP.
(h) Limitation on Liens on Collateral. The Borrower will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is reasonably necessary to
remove, any Lien or material adverse claim on or to any of the
Collateral, other than the Liens created hereby and other than as
permitted pursuant to the Loan Documents, and will defend the right,
title and interest of the Administrative Agent and the Lenders in and
to any of the Collateral against the claims and demands of all Persons
whomsoever.
(i) Limitations on Dispositions of Collateral. Without
the prior written consent of the Administrative Agent, the Borrower
will not sell, assign, transfer, exchange or otherwise dispose of, or
grant any option with respect to, the Collateral, or attempt, offer or
contract to do so, except with respect to exclusive licenses in the
ordinary course of business or as permitted by this Agreement or the
Loan Documents.
(j) Limitations on Modifications, Waivers, Extensions of
Contracts, Licenses and Accounts. The Borrower will not, except in the
ordinary course of business, amend, modify, terminate or waive any
provision of any material Trademark License or any agreement giving
rise to a material Account constituting Collateral in any manner which
would reasonably be expected to materially adversely affect the value
of such Trademark License or Account as Collateral.
(k) Limitations on Discounts, Compromises, Extensions of
Accounts. At all times, the Borrower will not, except in the ordinary
course of business, grant any extension of the time of payment of any
material Account constituting Collateral, compromise, compound or
settle the same for less than the full amount thereof, release, wholly
or partially, any Person liable for the payment thereof, or allow any
credit or discount whatsoever thereon, unless such extensions,
compromises, compoundings, settlements, releases, credits or discounts
are permitted by the Loan Documents.
(l) Maintenance of Equipment. The Borrower will maintain
each material item of Equipment constituting Collateral in good
operating condition, ordinary wear and tear and immaterial impairments
of value and damage by the elements excepted, and will provide all
maintenance, service and repairs necessary for such purpose, except to
the extent that the failure to do any of the foregoing would not be
reasonably expected to have a Material Adverse Effect.
(m) Maintenance of Insurance. The Borrower will maintain,
with financially sound and reputable insurance companies, (i)
insurance (including property insurance) in at least such amounts and
against at least such risks (but including in any event public
liability, product liability and business interruption where
reasonably obtainable) as are usually insured against in the same
general area by companies engaged in the same or a similar business;
and furnish to the Administrative Agent, upon written request,
information in reasonable detail as to the insurance carried and (ii)
insurance policies relating to the Inventory and Equipment
constituting Collateral (A) insuring the Inventory and Equipment
constituting Collateral against loss by fire, explosion, theft and
such other casualties as are usually insured against by companies
engaged in the same or a similar business, (B) insuring the Borrower
against liability for personal injury and property damage relating to
such Inventory and Equipment, (C) providing that no
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cancellation, material reduction in amount or material change in the
coverage referred to in clause (A) shall be effective until at least
15 days after receipt by the Administrative Agent of written notice
thereof, (D) naming the Administrative Agent and the Lenders as
additional insured parties and (E) being otherwise reasonably
satisfactory in all material respects to the Administrative Agent.
(n) Further Identification of Collateral. The Borrower
will furnish to the Administrative Agent and the Lenders from time to
time such statements and schedules further identifying and describing
the Collateral, and such other reports in connection with the
Collateral, as the Administrative Agent may reasonably request, all in
reasonable detail.
(o) Notices. The Borrower will advise the Administrative
Agent and the Lenders promptly, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, (i) of any
Lien (other than Liens created hereby or permitted under the Loan
Documents) on, or material adverse claim asserted against, any of the
Collateral and (ii) of the occurrence of any other event which would
reasonably be expected, in the aggregate, to have a material adverse
effect on the aggregate value of the Collateral (as defined in the
Credit Agreement) or the Liens created hereunder.
(p) Changes in Locations, Name, etc. The Borrower will
not (i) change the location of its chief executive office/chief place
of business from that specified in Section 4(f) or remove its books
and records from the locations specified in Section 4(c), (ii) permit
any of the Inventory or Equipment constituting Collateral to be kept
at locations other than those listed in Schedule III hereto, unless
such Inventory or Equipment is conveyed, sold, leased, transferred,
assigned or otherwise disposed of as permitted by Section 8.6 of the
Credit Agreement or (iii) change its name, identity or corporate
structure to such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would become
seriously misleading, unless the Borrower shall have complied with the
following:
(A) with respect to clauses (i) and (iii) above, the
Borrower (x) shall have given the Administrative Agent at
least 30 days' prior written notice thereof and (y) prior to
effecting any such change, shall have taken such actions as
may be necessary or, upon the reasonable request of the
Administrative Agent, advisable to continue the perfection and
priority of the Liens granted pursuant hereto, and
(B) with respect to clause (ii) above, the Borrower
(x) shall have given the Administrative Agent at least fifteen
days' prior written notice of the location thereof and (y)
prior to keeping any Inventory or Equipment constituting
Collateral at such new location shall have taken such actions
as may be necessary or, upon the reasonable request of the
Administrative Agent, advisable to perfect the Liens granted
pursuant hereto with respect to such Inventory or Equipment;
provided in each case under clauses (A)(y) and (B)(y), that
the Administrative Agent shall have taken all actions required
by Section 5(a) hereof in connection with such actions of the
Borrower.
(q) Copyrights. The Borrower will not own nor at any time in
the future acquire any right, title or interest in or to any Copyright
or Copyright License which is material to the business of the Borrower
and its Subsidiaries, taken as a whole, other than (i) with respect to
computer software or hardware licenses or other Copyright licenses
granted to the Borrower in the ordinary course of business, (ii) in
connection with any rights of the Borrower in respect of security
interests in collateral or (iii) with respect to which (A) the
Administrative Agent shall have been given prior written notice of the
acquisition of any right, title or interest therein or thereto and (B)
if reasonably requested by the Administrative Agent, a security
agreement reasonably satisfactory to the Administrative Agent shall
have been executed by the Borrower.
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6 Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Borrower hereby irrevocably constitutes
and appoints the Administrative Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Borrower and in
the name of the Borrower or in its own name, from time to time in the
Administrative Agent's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, the Borrower hereby gives the Administrative Agent the power and
right, on behalf of the Borrower, without notice to or assent by the Borrower,
to do the following at any time when any Event of Default shall have occurred
and be continuing, and to the extent permitted by law:
(i) in the name of the Borrower or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Account, Contract, Instrument or General
Intangible (to the extent that any of the foregoing constitute
Collateral) or with respect to any other Collateral and to file any
claim or to take any other action or institute any proceeding in any
court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such
moneys due under any such Account, Contract, Instrument or General
Intangible or with respect to any such other Collateral whenever
payable;
(ii) to pay or discharge taxes and Liens levied or placed
on the Collateral, other than Liens permitted under this Agreement or
the Loan Documents, to effect any repairs or any insurance required by
the terms of this Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) (A) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) to ask for, or demand, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (C) to sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts
against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought against the
Borrower with respect to any of the Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described in clause
(E) above and, in connection therewith, to give such discharges or
releases as the Administrative Agent may deem appropriate; (G) subject
to any pre-existing rights or licenses, to assign any Patent or
Trademark constituting Collateral (along with the goodwill of the
business to which any such Patent or Trademark pertains), for such term
or terms, on such conditions, and in such manner, as the Administrative
Agent shall in its sole discretion determine; and (H) generally, to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes, and to do, at the Administrative Agent's option and the
Borrower's expense, at any time, or from time to time, all acts and
things which the Administrative Agent deems necessary to protect,
preserve or realize upon the Collateral and the Administrative Agent's
and the Lenders' Liens thereon and to effect the intent of this
Agreement, all as fully and effectively as the Borrower might do.
The Borrower hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
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(b) Other Powers. The Borrower also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 9 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) No Duty on the Part of Administrative Agent, Other
Representatives or Lenders. The powers conferred on the Administrative Agent,
the Other Representatives and the Lenders hereunder are solely to protect the
Administrative Agent's, the Other Representatives' and the Lenders' interests in
the Collateral and shall not impose any duty upon the Administrative Agent, any
Other Representative or any Lender to exercise any such powers. The
Administrative Agent, the Other Representatives and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Borrower for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7 Performance by Administrative Agent of Borrower's
Obligations. If the Borrower fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall itself perform or comply, or otherwise cause
performance or compliance, with such agreement, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum 2% above the rate applicable
to ABR Loans, shall be payable by the Borrower to the Administrative Agent on
demand and shall constitute Obligations secured hereby.
8 Proceeds. It is agreed that if an Event of Default
shall occur and be continuing, (a) all Proceeds of any Collateral received by
the Borrower consisting of cash, checks and other near-cash items shall be held
by the Borrower in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Borrower, and at the request of the
Administrative Agent shall, forthwith upon receipt by the Borrower, be turned
over to the Administrative Agent in the exact form received by the Borrower
(duly indorsed by the Borrower to the Administrative Agent, if required by the
Administrative Agent), and (b) any and all such Proceeds received by the
Administrative Agent (whether from the Borrower or otherwise) may, in the sole
discretion of the Administrative Agent, be held by the Administrative Agent,
for the ratable benefit of the Lenders, as collateral security for the
Obligations (whether matured or unmatured), and/or then or at any time
thereafter may be applied by the Administrative Agent against, the Obligations
then due and owing. Any balance of such Proceeds remaining after the payment in
full of the Notes, the Reimbursement Obligations and the other Obligations then
due and owing, the termination of the Commitments and the expiration,
termination or return to the Issuing Lender of the Letters of Credit shall be
paid over to the Borrower or to whomsoever may be lawfully entitled to receive
the same.
9 Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Borrower or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), but subject to any pre-existing rights
or licenses, in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent, any Other
Representative or any Lender or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The Administrative
Agent, any Other Representative or any Lender shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Borrower, which right or equity is hereby waived or released. The Borrower
further agrees, at the Administrative Agent's request, upon the occurrence and
during the continuance of an Event of Default, to assemble the Collateral and
make it available to the
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Administrative Agent at places which the Administrative Agent shall reasonably
select, whether at the Borrower's premises or elsewhere. The Administrative
Agent shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Administrative Agent, the Other Representatives and the
Lenders hereunder, including, without limitation, reasonable attorneys' fees
and disbursements, to the payment in whole or in part of the Obligations then
due and owing, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the Borrower. To the
extent permitted by applicable law, the Borrower waives all claims, damages and
demands it may acquire against the Administrative Agent, any Other
Representative or any Lender arising out of the repossession, retention or sale
of the Collateral, other than any such claims, damages and demands that may
arise from the gross negligence or willful misconduct of any of them. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition. The Borrower shall remain liable
for any deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the then outstanding Obligations, including
the reasonable fees and disbursements of any attorneys employed by the
Administrative Agent, any Other Representative or any Lender to collect such
deficiency.
10 Limitation on Duties Regarding Preservation of Collateral.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account. None
of the Administrative Agent, any Other Representative, any Lender, nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Borrower or any other Person.
11. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled with
an interest and are irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
12. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14. No Waiver; Cumulative Remedies. None of the Administrative
Agent, any Other Representative nor any Lender shall by any act (except by a
written instrument pursuant to Section 15 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any Other Representative or
any Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any Other Representative or any Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such Other Representative or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
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15. Amendments in Writing; No Waiver; Cumulative Remedies;
Successors and Assigns. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Borrower and the Administrative Agent in accordance
with Section 11.1 of the Credit Agreement. This Agreement shall be binding upon
the successors and assigns of the Borrower and shall inure to the benefit of the
Administrative Agent, the Other Representatives and the Lenders and their
respective successors and assigns, except that the Borrower may not assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent.
16. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with Section 11.2 of the
Credit Agreement.
17. Authority of Administrative Agent. The Borrower
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Administrative
Agent, the Other Representatives and the Lenders, be governed by the Loan
Documents and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Borrower, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Borrower shall not be under any obligation to make any inquiry
respecting such authority.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
19. Release of Collateral and Termination. (a) At such time as
the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing shall have occurred, the Commitments have been
terminated and the Letters of Credit have expired, terminated or been returned
to the Issuing Lender, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and the Borrower
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Borrower. Upon request of the Borrower following any such termination, the
Administrative Agent shall deliver (at the sole cost and expense of the
Borrower) to the Borrower any Collateral held by the Administrative Agent
hereunder, and execute and deliver (at the sole cost and expense of the
Borrower) to the Borrower such documents as the Borrower shall reasonably
request to evidence such termination.
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(b If any of the Collateral shall be sold, transferred
or otherwise disposed of by the Borrower in a transaction permitted by the
Credit Agreement, then the Administrative Agent shall execute and deliver to
the Borrower (at the sole cost and expense of the Borrower) all releases or
other documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to
be duly executed and delivered as of the date first above written.
REMINGTON ARMS COMPANY, INC.
By:
--------------------------------------
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
--------------------
Title:
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Schedule I
TRADEMARKS AND TRADEMARK LICENSES
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<PAGE> 18
Schedule II
PATENTS AND PATENT LICENSES
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<PAGE> 19
Schedule III
LOCATION OF INVENTORY AND EQUIPMENT
<PAGE> 1
Exhibit 4.4
BORROWER PATENT AND TRADEMARK SECURITY AGREEMENT
BORROWER PATENT AND TRADEMARK SECURITY AGREEMENT, dated as of
April 28, 2000, made by REMINGTON ARMS COMPANY, INC., a Delaware corporation
(the "Grantor"), in favor of THE CHASE MANHATTAN BANK, as administrative agent
(in such capacity, the "Administrative Agent") for the several banks and other
financial institutions (the "Lenders") from time to time parties to the Amended
and Restated Credit Agreement, dated as of April 28, 2000 (as the same may be
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Grantor, the Chase Securities Inc. and Banc of
America Securities LLC, as joint lead arrangers, Bank of America, N.A., as
syndication agent. Goldman Sachs Credit Partners, L.P., as documentation agent
collectively the "Other Representatives", the Administrative Agent, and the
Lenders.
W I T N E S S E T H :
WHEREAS, the Grantor is a party to the Borrower Security
Agreement, dated as of April 28, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Borrower Security Agreement"), made by the
Grantor in favor of the Administrative Agent, for the ratable benefit of the
Lenders;
WHEREAS, the Grantor owns certain Trademarks and Trademark
Licenses listed on Schedule I hereto;
WHEREAS, the Grantor owns certain Patents and Patent Licenses
listed on Schedule II;
WHEREAS, pursuant to the Borrower Security Agreement, the
Grantor has granted to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in all right, title and interest of the Grantor in,
to and under the Collateral (as hereinafter defined), including the property
listed on the attached Schedules I and II, together with any renewal or
extension thereof, and all Proceeds thereof, to secure the payment of the
Obligations; and
WHEREAS, it is a condition precedent to the obligations of the
Lenders to make their respective initial Extensions of Credit to the Grantor
under the Credit Agreement that the Grantor shall have executed and delivered
this Agreement to the Administrative Agent, for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to make their respective Extensions of Credit to
the Grantor thereunder, the Grantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders, as follows:
1 Defined Terms. (a) Unless otherwise defined herein, capitalized terms defined
in the Credit Agreement are used herein as defined therein. The following terms
shall have the following meanings:
"Agreement": this Borrower Patent and Trademark Security
Agreement, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
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"General Intangibles": as defined in Section 9-106 of the
Code, including, without limitation, all Patents and Trademarks now or
hereafter owned by the Grantor to the extent such Patents and
Trademarks would be included in General Intangibles under the Code.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Grantor whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Grantor to the Administrative Agent, the Other
Representatives and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, the Letters of Credit, the other Loan
Documents, any Interest Rate Agreement entered into with any Lender,
any Guarantee Obligations of the Grantor referred to in Section 8.4(b)
of the Credit Agreement as to which any Lender is a beneficiary, and
any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a
termination of any transaction entered into pursuant to an Interest
Rate Agreement entered into with any Lender, amounts payable to any
Lender in connection with any such Guarantee Obligation, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Grantor pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Patent License": all United States written license agreements
with any unaffiliated Person in connection with any of the Patents or
such other Person's patents, whether the Grantor is a licensor or a
licensee under any such license agreement, including, without
limitation, the license agreements listed on Schedule II attached
hereto and made a part hereof, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and
advertise for sale, all Inventory (as defined in the Borrower Security
Agreement) now or hereafter covered by such licenses.
"Patents": all United States patents, patent applications and
patentable inventions, including, without limitation, all patents and
patent applications identified in Schedule II attached hereto and made
a part hereof, and including without limitation (a) all inventions and
improvements described and claimed therein, and patentable inventions,
(b) the right to sue or otherwise recover for any and all past, present
and future infringements and misappropriations thereof, (c) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (d) all
rights corresponding thereto in the United States and all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals,
and extensions thereof, all improvements thereon, and all other rights
of any kind whatsoever of the Grantor accruing thereunder or pertaining
thereto (Patents and Patent Licenses being, collectively, the "Patent
Collateral").
"Trademark License": all United States written license
agreements with any unaffiliated Person in connection with any of the
Trademarks or such other Person's names or trademarks, whether the
Grantor is a licensor or a licensee under any such license agreement,
including, without limitation, the license agreements listed on
Schedule I attached hereto and made a part hereof, subject, in each
case, to the terms of such license agreements, and the right to prepare
for sale, sell and advertise for sale, all Inventory (as defined in the
Borrower Security Agreement) now or hereafter covered by such licenses.
"Trademarks": all United States trademarks, service marks,
trade names, trade dress or other indicia of trade origin, trademark
and service mark registrations, and applications for trademark or
service mark registrations (except for "intent to use" applications for
trademark or service mark registrations filed pursuant to Section 1(b)
of the Lanham Act, unless and until an Amendment to Allege Use or a
Statement
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<PAGE> 3
of Use under Sections 1(c) and 1(d) of said Act has been filed), and
any renewals thereof, including, without limitation, each registration
and application identified in Schedule I attached hereto and made a
part hereof, and including without limitation (a) the right to sue or
otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (b) all income, royalties,
damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments
for past or future infringements thereof), and (c) all rights
corresponding thereto in the United States and all other rights of any
kind whatsoever of the Grantor accruing thereunder or pertaining
thereto, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each such trademark,
service mark, trade name, trade dress or other indicia of trade origin
(Trademarks and Trademark Licenses being, collectively, the "Trademark
Collateral").
(b) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2 Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations the Grantor hereby
assigns, pledges and grants, subject to existing licenses granted by the Grantor
in the ordinary course of business with respect to the Collateral (as
hereinafter defined), to the Administrative Agent, for the ratable benefit of
the Lenders, a security interest in all of the following property now owned or
at any time hereafter acquired by the Grantor or in which the Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"):
(i) all Trademarks;
(ii) all Trademark Licenses;
(iii) all Patents;
(iv) all Patent Licenses;
(v) all General Intangibles connected with the
use of or symbolized by the Trademarks and Patents; and
(vi) to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing;
provided, that the foregoing grant of a security interest with respect to
General Intangibles, Patent Licenses and Trademark Licenses shall not include a
security interest in, and the Collateral shall not include, any Patent License
or Trademark License with or issued by Persons other than a Subsidiary of the
Grantor that would otherwise be included in the Collateral to the extent that
the grant by the Grantor of such security interest is prohibited by the terms
and provisions of the written agreement or document or instrument creating or
evidencing such license or permit or Patent License or Trademark License, or
gives the other party thereto the right to terminate such Patent License or
Trademark License in the event of the grant of a security interest with respect
thereto. The Grantor shall use its reasonable best efforts to (i) avoid entering
into agreements or contracts which would prohibit the Grantor from granting a
security interest in such Patent Licenses or Trademark Licenses pursuant to the
terms of this Agreement and (ii) cause each such Patent License or Trademark
License entered into, created or made by it after the Effective Date to be
subject to the Lien and security interest created pursuant to this Agreement.
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<PAGE> 4
SECTION 3. Grantor Remains Liable; Limitations on
Administrative Agent's and Lenders' Obligations. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Administrative Agent of
any of the rights hereunder shall not release the Grantor from any of its duties
or obligations under the contracts and agreements included in the Collateral,
and (c) neither the Administrative Agent, the Other Representatives, nor any
Lender shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement, nor shall the
Administrative Agent, the Other Representatives, or any Lender be obligated to
perform any of the obligations or duties of the Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
4 Representations and Warranties. The Grantor represents and
warrants as to itself and its Collateral as follows:
(a) Title; No Other Liens. Except for the Liens granted to the
Administrative Agent, for the ratable benefit of the Lenders, pursuant
to this Agreement and the other Liens permitted to exist on the
Collateral pursuant to the Loan Documents (including without limitation
any Lien permitted to exist pursuant to Section 8.3 of the Credit
Agreement), the Grantor is (or, in the case of after-acquired
Collateral, will be) the sole, legal and beneficial owner of the entire
right, title and interest in and to the Trademarks set forth on
Schedule I hereto and the Patents set forth in Schedule II hereto free
and clear of any and all Liens. No security agreement, financing
statement or other public notice similar in effect with respect to all
or any part of the Collateral is on file or of record in any public
office (including, without limitation, the United States Patent and
Trademark Office), except such as may have been filed in favor of the
Administrative Agent, for the ratable benefit of the Lenders, pursuant
to this Agreement or as may be permitted pursuant to the Loan
Documents.
(b) Perfected First Priority Liens. (i) This Agreement is
effective to create, as collateral security for the Obligations, valid
and enforceable Liens on the Collateral in favor of the Administrative
Agent for the ratable benefit of the Lenders, except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditor's rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(ii) Except with regard to Liens (if any) on Specified
Assets, and except with regard to Liens upon Patents and Trademarks and
Patent Licenses and Trademark Licenses, which Liens, to the extent not
otherwise perfected by the filing of financing statements under the
Code in accordance herewith, would in the case of Patents and
Trademarks listed in Schedule I and II hereto, or in the case of Patent
Licenses and Trademark licenses listed in Schedule I and II hereto may,
be perfected upon the filing, acceptance and recordation thereof in the
United States Patent and Trademark Office, upon the completion of the
Filings, the Liens created pursuant to this Agreement will constitute
valid Liens on and (to the extent provided herein) perfected security
interests in the Collateral in favor of the Administrative Agent for
the ratable benefit of the Lenders, and will be prior to all other
Liens of all other Persons other than Permitted Liens, and enforceable
as such as against all other Persons other than Ordinary Course Buyers,
except to the extent that the recording of an assignment or other
transfer of title to the Administrative Agent or the recording of other
applicable documents in the United States Patent and Trademark Office
or United States Copyright Office may be necessary for perfection or
enforceability, and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing. As used in this Section 4(b)(ii), the following
terms shall have the following meanings:
"Filings": the filing or recording of the Financing
Statements, any Patent and Trademark Security Agreement as set
forth in Schedule __, and any filings after the Closing Date
in any other jurisdiction as may be necessary under any
Requirement of Law.
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<PAGE> 5
"Financing Statements": the financing statements
delivered to the Administrative Agent by the Borrower on the
Closing Date for filing in the jurisdictions listed in
Schedule 6.1(m) to the Credit Agreement.
"Permitted Liens": Liens permitted pursuant to the
Loan Documents, including without limitation those permitted
to exist pursuant to subsection 8.3 of the Credit Agreement.
"Specified Assets": the following property and assets
of the Borrower:
(1) Patents, Patent Licenses, Trademarks and
Trademark Licenses to the extent that (a) Liens
thereon which cannot be perfected by the filing of
financing statements under the Uniform Commercial
Code or by the filing and acceptance thereof in the
United States Patent and Trademark Office or (b) such
Patents, Patent Licenses, Trademarks and Trademark
Licenses are not, individually or in the aggregate,
material to the business of Grantor and its
Subsidiaries taken as a whole;
(2) Copyrights and Copyright Licenses and
Accounts or receivables arising therefrom to the
extent that the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction is not
applicable to the creation or perfection of Liens
thereon; and
(3) Collateral for which the perfection of
Liens thereon requires filings in or other actions
under the laws of jurisdictions outside the United
States of America, any State, territory or dependency
thereof or the District of Columbia;
(c) Consents. No consent of any party (other than the Grantor)
to any Patent License or Trademark License constituting Collateral is
required, or purports to be required, to be obtained by or on behalf of
the Grantor in connection with the execution, delivery and performance
of this Agreement that has not been obtained. Each Patent License and
Trademark License constituting Collateral is in full force and effect
and constitutes a valid and legally enforceable obligation of the
Grantor and (to the knowledge of the Grantor) each other party thereto
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor's rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and
except to the extent the failure of any such Patent License or
Trademark License constituting Collateral to be in full force and
effect or valid or legally enforceable would not be reasonably
expected, in the aggregate, to have a material adverse effect on the
value of the Collateral (as defined in the Credit Agreement). No
consent or authorization of, filing with or other act by or in respect
of any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of any of
the Patent Licenses or Trademark Licenses constituting Collateral by
any party thereto other than those which have been duly obtained, made
or performed and are in full force and effect and those the failure of
which to make or obtain would not be reasonably expected, in the
aggregate, to have a material adverse effect on the value of the
Collateral (as defined in the Credit Agreement). Neither the Grantor
nor (to the knowledge of the Grantor) any other party to any Patent
License or Trademark License constituting Collateral is in default in
the performance or observance of any of the terms thereof, except for
such defaults as would not reasonably be expected, in the aggregate, to
have a material adverse effect on the value of the Collateral (as
defined in the Credit Agreement). The right, title and interest of the
Grantor in, to and under each Patent License and Trademark License
constituting Collateral are not subject to any defense, offset,
counterclaim or claim which would be reasonably expected, either
individually or in the aggregate, to have a material adverse effect on
the value of the Collateral (as defined in the Credit Agreement).
(d) Schedules I and II are Complete; All Filings Have Been
Made. Set forth in Schedules I and II is a complete and accurate list
of the Trademarks and Patents owned by the Grantor as of the date
hereof. The Grantor has made all necessary filings and recordations to
protect and maintain its interest in the
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Trademarks and Patents set forth in Schedules I and II, including,
without limitation, all necessary filings and recordings, and payments
of all maintenance fees, in the United States Patent and Trademark
Office to the extent such Trademarks and Patents are material to the
Grantor's business. Set forth in Schedules I and II is a complete and
accurate list of all of the material Trademark Licenses and material
Patent Licenses owned by the Grantor as of the date hereof.
(e) The Trademarks and Trademark Licenses are Subsisting and
Not Adjudged Invalid. As of the date hereof, each trademark
registration and trademark application of the Grantor set forth in
Schedule I is subsisting as of the date hereof and has not been
adjudged invalid, unregisterable or unenforceable, in whole or in part,
and, to the best of the Grantor's knowledge, is valid, registrable and
enforceable. As of the date hereof, each of the Trademark Licenses set
forth in Schedule I is validly subsisting and has not been adjudged
invalid or unenforceable, in whole or in part, and, to the best of the
Grantor's knowledge, is valid and enforceable. As of the date hereof,
the Grantor has notified the Administrative Agent in writing of all
uses of any item of Trademark Collateral material to the Grantor's
business of which the Grantor is aware which could reasonably be
expected to lead to such item becoming invalid or unenforceable,
including unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with such
Collateral.
(f) The Patent and Patent Licenses are Subsisting and Not
Adjudged Invalid. As of the date hereof, each patent and patent
application of the Grantor set forth in Schedule II is subsisting and
has not been adjudged invalid, unpatentable or unenforceable, in whole
or in part, and, to the best of the Grantor's knowledge, is valid,
patentable and enforceable. As of the date hereof, each of the Patent
Licenses set forth in Schedule II is validly subsisting and has not
been adjudged invalid or unenforceable, in whole or in part, and, to
the best of the Grantor's knowledge, is valid and enforceable. As of
the date hereof, the Grantor has notified the Administrative Agent in
writing of all uses of any item of Patent Collateral material to the
Grantor's business of which the Grantor is aware which could reasonably
be expected to lead to such item becoming invalid or unenforceable.
(g) No Previous Assignments or Releases. As of the date
hereof, the Grantor has not made a previous assignment, sale, transfer
or agreement constituting a present or future assignment, sale,
transfer or encumbrance of any of the Collateral, except with respect
to exclusive licenses granted in the ordinary course of business or as
permitted by this Agreement or the Loan Documents. As of the date
hereof, the Grantor has not granted any license, shop right, release,
covenant not to sue, or non-assertion assurance to any Person with
respect to any part of the Collateral except in the ordinary course of
business.
(h) Proper Statutory Notice. The Grantor has marked its
products with the trademark registration symbol 7, the numbers of all
appropriate patents, the common law trademark symbol J, or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(i) No Knowledge of Claims Likely to Arise. Except for the
Trademark Licenses and Patent Licenses listed in Schedules I and II
hereto, the Grantor has no knowledge of the existence of any right or
any claim (other than as provided by this Agreement or the Loan
Documents) that is likely to be made under or against any item of
Collateral contained on Schedules I and II which would have a Material
Adverse Effect.
(j) No Knowledge of Existing or Threatened Claims. No claim
has been made and is continuing or, to the best of the Grantor's
knowledge, threatened that the use by the Grantor of any item of
Collateral is invalid or unenforceable or that the use by the Grantor
of any Collateral does or may violate the rights of any Person, which
would have a Material Adverse Effect. To the best of the Grantor's
knowledge, there is currently no infringement or unauthorized use of
any item of Collateral contained on Schedules I and II which would have
a Material Adverse Effect.
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5 Covenants. The Grantor covenants and agrees with the
Administrative Agent, the Other Representatives and the Lenders that, from and
after the date of this Agreement until the payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit:
(a) Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the written request of
the Administrative Agent or the Grantor, as the case may be, and at the
sole expense of the Grantor, the Grantor or the Administrative Agent,
as the case may be, will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Administrative Agent or the Grantor may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with
respect to the Liens created hereby. The Grantor also hereby authorizes
the Administrative Agent to file any such financing or continuation
statement without the signature of the Grantor to the extent permitted
by applicable law. A carbon, photostatic or other reproduction of this
Agreement shall be sufficient as a financing statement for filing in
any jurisdiction. The Administrative Agent agrees to notify the Grantor
and the Grantor agrees to notify the Administrative Agent of any
financing or continuation statement filed by it pursuant to this
Section 5(a), provided that any failure to give any such notice shall
not affect the validity or effectiveness of any such filing.
(b) Indemnification and Expenses. The Grantor agrees to pay,
and to save the Administrative Agent, the Other Representatives and the
Lenders harmless from, any and all liabilities and reasonable costs and
expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay by the
Grantor in complying with any material Requirement of Law applicable to
any of the Collateral, or (ii) in connection with any of the
transactions contemplated by this Agreement, provided that such
indemnity shall not, as to the Administrative Agent, any Other
Representatives or any Lender, be available to the extent that such
liabilities, costs and expenses resulted from the gross negligence or
willful misconduct of the Administrative Agent, any Other
Representative or any Lender. In any suit, proceeding or action brought
by the Administrative Agent, any Other Representative or any Lender
under any of the Collateral for any sum owing thereunder, or to enforce
any of the Collateral, the Grantor will save, indemnify and keep the
Administrative Agent, such Other Representative and such Lender
harmless from and against all expense, loss or damage suffered by
reason of any defense or counterclaim raised in any such suit,
proceeding or action.
(c) Maintenance of Records. (i) The Grantor will keep and
maintain at its own cost and expense reasonably satisfactory and
complete records of the Collateral, and shall mark such records to
evidence this Agreement and the Liens and the security interests
created hereby. For the Administrative Agent's and the Lenders' further
security, the Administrative Agent, for the ratable benefit of the
Lenders, shall have a security interest in all of the Grantor's books
and records pertaining to the collateral, and the Grantor shall permit
the Administrative Agent or its representatives to review such books
and records upon reasonable advance notice during normal business hours
at the location where such books and records are kept and at the
reasonable request of the Administrative Agent.
(d) Right of Inspection. Upon reasonable advance notice to the
Grantor and at reasonable intervals, or at any time and from time to
time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent and the Lenders and their respective
representatives shall have reasonable access during normal business
hours to all the books, correspondence and records of the Grantor, and
the Administrative Agent and the Lenders and their respective
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees
to render to the Administrative Agent and the Lenders, at the Grantor's
reasonable cost and expense, such clerical and other assistance as may
be reasonable requested with regard thereto.
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<PAGE> 8
(e) Compliance with Laws, etc. The Grantor will comply in all
material respects with all Requirements of Law applicable to the
Collateral or any part thereof, except to the extent that the failure
to so comply would not be reasonably expected to materially adversely
affect in the aggregate the Administrative Agent's or the Lenders'
rights hereunder, the priority of their Liens on the Collateral or the
value of the Collateral (as defined in the Credit Agreement).
(f) Further Identification of Collateral. The Grantor will
furnish to the Administrative Agent and the Lenders from time to time
such statements and schedules further identifying and describing the
Collateral, and such other reports in connection with the Collateral,
as the Administrative Agent may reasonably request, all in reasonable
detail.
(g) Security Interest in Any Newly Acquired Collateral. The
Grantor agrees that, should it obtain an ownership interest in any
Trademark, Patent, Trademark License or Patent License, which is not
now a part of the Collateral, (i) the provisions of Section 2 shall
automatically apply thereto, (ii) any such Trademark, Patent, Trademark
License and Patent License shall automatically become part of the
Collateral, and (iii) with respect to any ownership interest in any
Trademark, Patent, Trademark License or Patent License that the Grantor
should obtain which the Grantor reasonably deems is material to its
business, it shall give notice thereof to the Administrative Agent and
the Lenders in writing, in reasonable detail, at their respective
addresses set forth in the Credit Agreement within 45 days after the
end of the calendar quarter in which such ownership interest is
obtained. The Grantor authorizes the Administrative Agent to modify
this Agreement by amending Schedules I and II (and will cooperate
reasonably with the Administrative Agent in effecting any such
amendment) to include on Schedule I any Trademark and Trademark License
and on Schedule II any Patent or Patent License of which it receives
notice under this Section.
(h) Maintenance of the Trademark Collateral. The Grantor
agrees to take all necessary steps, including, without limitation, in
the United States Patent and Trademark Office or in any court, to (i)
maintain each trademark registration and each Trademark License
identified on Schedule I hereto, and (ii) pursue each trademark
application now or hereafter identified in Schedule I hereto,
including, without limitation, the filing of responses to office
actions issued by the United States Patent and Trademark Office, the
filing of applications for renewal, the filing of affidavits under
Sections 8 and 15 of the United States Trademark Act, and the
participation in opposition, cancellation, infringement and
misappropriation proceedings, except, in each case in which the Grantor
has reasonably determined that any of the foregoing is not of material
economic value to it. The Grantor agrees to take corresponding steps
with respect to each new or acquired trademark registration, trademark
application or any rights obtained under any Trademark License, in each
case, which it is now or later becomes entitled, except in each case in
which the Grantor has reasonably determined that any of the foregoing
is not of material economic value to it. Any expenses incurred in
connection with such activities shall be borne by the Grantor.
(i) Maintenance of the Patent Collateral. The Grantor agrees
to take all necessary steps, including, without limitation, in the
United States Patent and Trademark Office or in any court, to (i)
maintain each patent and each Patent License identified on Schedule II
hereto, and (ii) pursue each patent application, now or hereafter
identified in Schedule II hereto, including, without limitation, the
filing of divisional, continuation, continuation-in-part and substitute
applications, the filing of applications for reissue, renewal or
extensions, the payment of maintenance fees, and the participation in
interference, reexamination, opposition, infringement and
misappropriation proceedings, except, in each case in which the Grantor
has reasonably determined that any of the foregoing is not of material
economic value to it. The Grantor agrees to take corresponding steps
with respect to each new or acquired patent, patent application, or any
rights obtained under any Patent License, in each case, which it is now
or later becomes entitled, except in each case in which the Grantor has
reasonably determined that any of the foregoing is not of material
economic value to it. Any expenses incurred in connection with such
activities shall be borne by the Grantor.
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(j) Grantor Shall Not Abandon any Collateral. The Grantor
shall not abandon any trademark registration, patent or any pending
trademark or patent application, without the written consent of the
Administrative Agent, unless the Grantor shall have previously
determined that such use or the pursuit or maintenance of such
trademark registration, patent or pending trademark or patent
application is not of material economic value to it, in which case, the
Grantor will, at least annually, give notice of any such abandonment to
the Administrative Agent and the Lenders in writing, in reasonable
detail, at their respective addresses set forth in the Credit
Agreement.
(k) Infringement of Any Collateral. In the event that the
Grantor becomes aware that any item of the Collateral which the Grantor
has reasonably determined to be material to its business is infringed
or misappropriated by a third party, the Grantor shall promptly notify
the Administrative Agent and the Lenders promptly and in writing, in
reasonable detail, at their respective addresses set forth in the
Credit Agreement, and shall take such actions as the Grantor or the
Administrative Agent deems reasonably appropriate under the
circumstances to protect such Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense
incurred in connection with such activities shall be borne by the
Grantor. The Grantor will advise the Administrative Agent and the
Lenders promptly and in writing, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, of any adverse
determination or the institution of any proceeding (including, without
limitation, the institution of any proceeding in the United States
Patent and Trademark Office or any court) regarding any item of the
Collateral which has a Material Adverse Effect.
(l) Use of Statutory Notice. The Grantor shall mark its
products with the trademark registration symbol 7, the numbers of all
appropriate patents, the common law trademark symbol J, or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(m) Limitation on Liens on Collateral. The Grantor will not
create, incur or permit to exist, will defend the Collateral against,
and will take such other action as is reasonably necessary to remove,
any Lien or material adverse claim on or to any of the Collateral,
other than exclusive licenses granted in the ordinary course of
business and the Liens created by this Agreement and other than as
permitted pursuant to the Loan Documents, and will defend the right,
title and interest of the Administrative Agent and the Lenders in and
to any of the Collateral against the claims and demands of all Persons
whomsoever.
(n) Limitations on Dispositions of Collateral. Without the
prior written consent of the Administrative Agent, the Grantor will not
sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract
to do so, except with respect to exclusive licenses in the ordinary
course of business or as permitted by this Agreement or the Loan
Documents.
(o) Notices. The Grantor will advise the Administrative Agent
and the Lenders promptly, in reasonable detail, at their respective
addresses set forth in the Credit Agreement, (i) of any Lien (other
than Liens created hereby or permitted under the Loan Documents) on, or
material adverse claim asserted against, Patents or Trademarks and (ii)
of the occurrence of any other event which would reasonably be expected
in the aggregate to have a material adverse effect on the aggregate
value of the Collateral or the Liens created hereunder.
6 Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Grantor and in the
name of the Grantor or in its own name, from time to time in the Administrative
Agent's discretion, for the purpose of carrying out the terms of this Agreement,
to take any and all appropriate action and to execute any and all documents and
instruments which
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<PAGE> 10
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, the Grantor hereby gives the
Administrative Agent the power and right, on behalf of the Grantor, without
notice to or assent by the Grantor, to do the following at any time when any
Event of Default shall have occurred and be continuing, and to the extent
permitted by law:
(i) to execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's, the Other
Representatives' and the Lenders' security interest in any of the
Collateral;
(ii) in the name of the Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any General Intangible (to the extent that any of the
foregoing constitute Collateral) or with respect to any other
Collateral and to file any claim or to take any other action or
institute any proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any such General
Intangible or with respect to any such other Collateral whenever
payable;
(iii) to pay or discharge Liens placed on the Collateral,
other than Liens permitted under this Agreement or the Loan Documents;
and
(iv) (A) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) to ask for, or demand, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any of the Collateral; (C) to sign and indorse any invoices,
freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices
and other documents in connection with any of the Collateral; (D) to
commence and prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the Collateral
or any thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding brought
against the Grantor with respect to any of the Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described
in clause (E) above and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem
appropriate; (G) subject to any pre-existing rights or licenses, to
assign any Patent or Trademark constituting Collateral (along with the
goodwill of the business to which any such Patent or Trademark
pertains), for such term or terms, on such conditions, and in such
manner, as the Administrative Agent shall in its sole discretion
determine; and (H) generally, to sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and to do, at the
Administrative Agent's option and the Grantor's expense, at any time,
or from time to time, all acts and things which the Administrative
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's, the Other Representatives'
and the Lenders' Liens thereon and to effect the intent of this
Agreement, all as fully and effectively as the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
(b) Other Powers. The Grantor also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 9 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
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(c) No Duty on the Part of Administrative Agent, Other
Representatives or Lenders. The powers conferred on the Administrative Agent,
the Other Representatives and the Lenders hereunder are solely to protect the
Administrative Agent's, the Other Representatives' and the Lenders' interests in
the Collateral and shall not impose any duty upon the Administrative Agent, any
Other Representative or any Lender to exercise any such powers. The
Administrative Agent, the Other Representatives and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7 Performance by Administrative Agent of Grantor's
Obligations. If the Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall itself perform or comply, or otherwise cause
performance or compliance, with such agreement, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum 2% above the rate applicable
to ABR Loans, shall be payable by the Grantor to the Administrative Agent on
demand and shall constitute Obligations secured hereby.
8 Proceeds. It is agreed that if an Event of Default shall
occur and be continuing, (a) all Proceeds of any Collateral received by the
Grantor consisting of cash, checks and other near-cash items shall be held by
the Grantor in trust for the Administrative Agent and the Lenders, segregated
from other funds of the Grantor, and at the request of the Administrative Agent
shall, forthwith upon receipt by the Grantor, be turned over to the
Administrative Agent in the exact form received by the Grantor (duly indorsed by
the Grantor to the Administrative Agent, if required by the Administrative
Agent), and (b) any and all such Proceeds received by the Administrative Agent
(whether from the Grantor or otherwise) may, in the sole discretion of the
Administrative Agent, be held by the Administrative Agent, for the ratable
benefit of the Lenders, as collateral security for the Obligations (whether
matured or unmatured), and/or then or at any time thereafter may be applied by
the Administrative Agent against, the Obligations then due and owing. Any
balance of such Proceeds remaining after the payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit shall be paid over to the Grantor or to
whomsoever may be lawfully entitled to receive the same.
9 Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to
purchase, or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), but subject to any pre-existing rights
or licenses, in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent, any Other
Representative or any Lender or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. The Administrative
Agent, any Other Representative or any Lender shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Grantor, which right or equity is hereby waived or released. The Grantor
further agrees, at the Administrative Agent's request, upon the occurrence and
during the continuance of an Event of Default, to assemble the Collateral and
make it available to the Administrative Agent at places which the Administrative
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
In the event of any sale, assignment, or other disposition of any of the
Collateral, the goodwill of the business connected with and symbolized by any
Trademark Collateral subject to such disposition shall be included, and the
Grantor shall supply to the Administrative Agent or its designee the Grantor's
know-how and expertise relating to the Collateral subject to such disposition,
and the Grantor's notebooks, studies, reports,
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records, documents and things embodying the same or relating to the inventions,
processes or ideas covered by, and to the manufacture of any products under or
in connection with, the Collateral subject to such disposition, and the
Grantor's customer's lists, studies and surveys and other records and documents
relating to the distribution, marketing, advertising and sale of products
relating to the Collateral subject to such disposition. The Administrative Agent
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Administrative Agent, the Other Representatives and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations then due
and owing, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the Grantor. To the
extent permitted by applicable law, the Grantor waives all claims, damages and
demands it may acquire against the Administrative Agent, any Other
Representative or any Lender arising out of the repossession, retention or sale
of the Collateral, other than any such claims, damages and demands that may
arise from the gross negligence or willful misconduct of any of them. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
days before such sale or other disposition. The Grantor shall remain liable for
any deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the then outstanding Obligations, including
the reasonable fees and disbursements of any attorneys employed by the
Administrative Agent, any Other Representative or any Lender to collect such
deficiency.
10 Limitation on Duties Regarding Preservation of Collateral.
The Administrative Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account. None
of the Administrative Agent, any Other Representative, any Lender, nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Grantor or any other Person.
11 Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled with
an interest and are irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
12 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13 Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
14 No Waiver; Cumulative Remedies. None of the Administrative
Agent, any Other Representative nor any Lender shall by any act (except by a
written instrument pursuant to Section 15 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any Other Representative or
any Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any Other Representative or any Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such Other Representative or such Lender would otherwise
have on any future occasion. The
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rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
15 Amendments in Writing; No Waiver; Cumulative Remedies;
Successors and Assigns. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Grantor and the Administrative Agent in accordance
with Section 11.1 of the Credit Agreement. This Agreement shall be binding upon
the successors and assigns of the Grantor and shall inure to the benefit of the
Administrative Agent, the Other Representatives and the Lenders and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent.
16. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with Section 11.2 of the
Credit Agreement.
17. Authority of Administrative Agent. The Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Administrative
Agent, the Other Representatives and the Lenders, be governed by the Loan
Documents and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Grantor, the Administrative Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation to make any inquiry
respecting such authority.
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18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
19. Release of Collateral and Termination. (a) At such time
as the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing shall have occurred, the Commitments have been
terminated and the Letters of Credit have expired, terminated or been returned
to the Issuing Lender, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and the Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantor. Upon request of the Grantor following any such termination, the
Administrative Agent shall deliver (at the sole cost and expense of the Grantor)
to the Grantor any Collateral held by the Administrative Agent hereunder, and
execute and deliver (at the sole cost and expense of such Grantor) to the
Grantor such documents as the Grantor shall reasonably request to evidence such
termination.
(b If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Grantor (at the sole cost and expense of the Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
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20. Incorporation of Provisions of Borrower Security
Agreement. The Grantor hereby acknowledges and affirms that the rights and
remedies of the Administrative Agent with respect to the security interest in
the Collateral made and granted hereby are more fully set forth in the Borrower
Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein. Nothing in this Agreement shall
defer or impair the attachment or perfection of any security interest in any
collateral covered by the Borrower Security Agreement which would attach or be
perfected pursuant to the terms thereof without action by the Grantor or any
other Person.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered as of the date first above written.
REMINGTON ARMS COMPANY, INC.
By:
-----------------------------------
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK,
, as Administrative Agent
By:
---------------------------
Title:
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Schedule I
TRADEMARKS AND TRADEMARK LICENSES
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Schedule II
PATENTS AND PATENT LICENSES
<PAGE> 1
Exhibit 4.5
HOLDING STOCK PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 28, 2000, made by RACI
HOLDING, INC., a Delaware corporation (the "Pledgor") in favor of THE CHASE
MANHATTAN BANK, a New York banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the several banks and other financial
institutions (collectively, the "Lenders") from time to time parties to the
Amended and Restated Credit Agreement, dated as of April 28, 2000 (as the same
may be amended, supplemented, waived or otherwise modified from time to time,
the "Credit Agreement"), among Remington Arms Company, Inc., a Delaware
corporation (the "Borrower"), the Administrative Agent, Chase Securities Inc.
and Banc of America Securities LLC, as joint lead arrangers, Bank of America,
N.A., as syndication agent, Goldman Sachs Credit Partners, L.P., as
documentation agent (collectively the "Other Representatives") and the Lenders.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Extensions of Credit (as defined in the Credit
Agreement) to the Borrower upon the terms and subject to the conditions set
forth in the Credit Agreement;
WHEREAS, the Pledgor is the legal and beneficial owner of the
shares of Pledged Stock (as hereinafter defined) issued by the Borrower; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective initial Extensions of Credit to the Borrower
under the Credit Agreement that the Pledgor shall have executed and delivered
this Pledge Agreement to the Administrative Agent, for the ratable benefit of
the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower, the Pledgor hereby agrees with the
Administrative Agent, for the ratable benefit of the
Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as defined
therein.
(b) The following terms shall have the following
meanings:
"Additional Pledged Stock": as defined in Section 5(a).
"Agreement": this Pledge Agreement, as the same may be
amended, supplemented, waived or otherwise modified from time to time.
"Code": the Uniform Commercial Code from time to time in
effect in the State of New York.
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<PAGE> 2
"Collateral": the Pledged Stock and all Proceeds thereof.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower or the Pledgor to the Administrative Agent,
the Other Representatives and the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Notes, the Letters of Credit, the other
Loan Documents, any Interest Rate Agreement entered into with any
Lender, any Guarantee Obligations of the Borrower referred to in
Section 8.4(b) of the Credit Agreement as to which any Lender is a
beneficiary, and any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account
of principal, interest, reimbursement obligations, amounts payable in
connection with a termination of any transaction entered into pursuant
to an Interest Rate Agreement entered into with any Lender, amounts
payable to any Lender in connection with any such Guarantee Obligation,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, stock options
or similar rights of any nature whatsoever or any investment property
(as defined in the Code) in the Borrower that may be issued or granted
by the Borrower to the Pledgor while this Agreement is in effect,
including the Additional Pledged Stock.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Code and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Stock,
collections thereon or distributions with respect thereto.
"Securities Act": the Securities Act of 1933, as amended.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
section and paragraph references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor
hereby grants to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in the Collateral, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, and hereby agrees
that it will deliver or cause to be delivered to the Administrative Agent, for
the ratable benefit of the Lenders, all certificates representing the Pledged
Stock on the Effective Date.
3. Stock Powers. Concurrently with the delivery to the
Administrative Agent of each certificate representing any Pledged Stock pursuant
to Section 2 above, the Pledgor shall deliver an undated stock power covering
such certificate, duly executed in blank by the Pledgor with, if the
Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. The Pledgor
represents and warrants that:
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<PAGE> 3
(a) The Pledged Stock constitutes all the issued and
outstanding shares of all classes of the capital stock of the Borrower
held by the Pledgor.
(b) All the Pledged Stock has been (or, with respect to
Additional Pledged Stock, when pledged to the Administrative Agent will
be) duly and validly issued and are (or, with respect to Additional
Pledged Stock, when pledged to the Administrative Agent, will be) fully
paid and nonassessable.
(c) The Pledgor is (or, with respect to Additional
Pledged Stock, when pledged to the Administrative Agent, will be) the
record and beneficial owner of, and has (or, with respect to Additional
Pledged Stock, when pledged to the Administrative Agent, will have)
good and marketable title to, the Pledged Stock, free of any and all
Liens or options in favor of, or material adverse claims on any of the
Pledged Stock by, any other Person, except the security interest
created by this Agreement and Liens arising by operation of law.
(d) Upon delivery to the Administrative Agent of all
stock certificates evidencing any Pledged Stock, the security interest
created by this Agreement, assuming the continuing possession of the
Pledged Stock by the Administrative Agent, will constitute a valid and
perfected first priority security interest in the Collateral to the
extent provided in the Code, enforceable in accordance with its terms
against all creditors of the Pledgor and any Persons purporting to
purchase any Collateral from the Pledgor, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; provided, however, that the above representation and
warranty does not apply to any Lien arising by operation of law and
entitled to a priority over the security interest created by this
Agreement.
5. Covenants. The Pledgor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Agreement until payment in full of the Notes, the Reimbursement Obligations and
the other Obligations then due and owing, the termination of the Commitments and
the expiration, termination or return to the Issuing Lender of the Letters of
Credit:
(a) If the Pledgor shall, as a result of its ownership of
the Pledged Stock, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), stock option or similar
rights, whether in addition to, in substitution of, as a conversion of,
or in exchange for any Pledged Stock, or otherwise in respect thereof
(collectively, the "Additional Pledged Stock"), the Pledgor shall
accept the same as the agent of the Administrative Agent, the Other
Representatives and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to
the Administrative Agent in the exact form received, duly indorsed by
the Pledgor to the Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by
the Pledgor and with, if the Administrative Agent so requests,
signature guaranteed, to be held by the Administrative Agent, subject
to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Stock upon
the liquidation or dissolution of the Borrower shall be paid over to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any property shall
be distributed upon or with respect to the Pledged Stock pursuant to
the recapitalization or reclassification of the capital of the Borrower
or pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations. If any
such sums of money or property so paid or distributed in respect of the
Pledged Stock shall be received by the Pledgor, the Pledgor shall,
until such money or property is paid or delivered to the Administrative
Agent, hold such money or property in trust
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<PAGE> 4
for the Administrative Agent the Other Representatives and the Lenders,
segregated from other funds of the Pledgor, as additional collateral
security for the Obligations.
(b) Without the prior written consent of the
Administrative Agent, the Pledgor will not (1) vote to enable, or take
any other action to permit, the Borrower to issue any stock or other
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of the Borrower, to any
Person other than the Pledgor, (2) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral, or (3) create, incur or permit to exist any Lien or option
in favor of, or any material adverse claim of any Person with respect
to, any of the Collateral, or any interest therein, except for the
security interests created by this Agreement and Liens arising by
operation of law.
(c) The Pledgor shall defend the security interest
created by this Agreement as a perfected security interest against
claims and demands of all Persons whomsoever. At any time and from time
to time, upon the written request of the Administrative Agent, and at
the sole expense of the Pledgor, the Pledgor will promptly and duly
execute and deliver such further instruments and documents and take
such further actions as the Administrative Agent may reasonably request
for the purposes of obtaining or preserving the full benefits of this
Agreement and of the rights and powers herein granted. In the event
that an Event of Default has occurred and is continuing, if any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any instrument (including any promissory note) or
chattel paper (in each case as defined in the Code), such instrument or
chattel paper shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative
Agent, to be held as Collateral pursuant to this Agreement. Prior to
such delivery, the Pledgor shall hold all such instruments or chattel
paper in trust for the Administrative Agent, for the ratable benefit of
the Lenders, and shall not commingle any of the foregoing with any
assets of the Pledgor.
(d) The Pledgor shall pay, and save the Administrative
Agent, the Other Representatives and the Lenders harmless from, any and
all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other similar taxes which may be
payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated
by this Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the Administrative Agent shall
have given notice to the Pledgor of the Administrative Agent's intent to
exercise its corresponding rights pursuant to Section 7 below, the Pledgor shall
be permitted to receive all dividends and distributions paid or made in respect
of the Pledged Stock and to exercise all voting and corporate and other rights
with respect to the Pledged Stock; provided, however, that no vote shall be cast
or corporate right exercised or other action taken which would materially impair
the Collateral (other than pursuant to a transaction permitted under the Credit
Agreement) or result in any violation of any provision of the Credit Agreement,
the Notes, this Agreement or any other Loan Document.
7. Rights of the Lenders, the Other Representatives and
the Administrative Agent. If an Event of Default shall occur and be continuing
and the Administrative Agent shall give notice to the Pledgor of its intent to
exercise such rights, (i) the Administrative Agent shall have the right to
receive any and all cash dividends paid in respect of the Pledged Stock and make
application thereof to the Obligations in such order as the Administrative Agent
may determine and (ii) the Administrative Agent shall have the right to cause
all of the Pledged Stock to be registered in the name of the Administrative
Agent or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to such Pledged
Stock at any meeting of shareholders of the Borrower or otherwise and (B) any
and all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the
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<PAGE> 5
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of the Issuer, or upon the exercise by the
Pledgor or the Administrative Agent of any right, privilege or option pertaining
to such Pledged Stock, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
(other than for its gross negligence or willful misconduct) except to account
for property actually received by it, but the Administrative Agent shall have no
duty to the Pledgor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing; provided that
the Administrative Agent shall not exercise any voting or other consensual
rights pertaining to the Pledged Stock in any way that would constitute an
exercise of the remedies described in Section 8 other than in accordance with
such Section 8.
8. Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted in this Agreement and in
any other instrument or agreement securing, evidencing or relating to the
Obligations. Without limiting the generality of the foregoing, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase
or otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Administrative Agent, any Other Representative or any
Lender or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent, any Other
Representative or any Lender shall have the right, to the extent permitted by
law, upon any such sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Pledgor,
which right or equity is hereby waived or released. The Administrative Agent
shall apply any Proceeds from time to time held by it and the net proceeds of
any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent, the Other Representatives and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements of
counsel to the Administrative Agent, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect, and only after
such application and after the payment by the Administrative Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Administrative Agent account for the surplus,
if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor
waives all claims, damages and demands it may acquire against the Administrative
Agent, any Other Representative or any Lender arising out of the repossession,
retention or sale of the Collateral, other than any such claims, damages and
demands that may arise from the gross negligence or willful misconduct of any of
them. If any notice of a proposed sale or other disposition of Collateral shall
be required by law, such notice shall be deemed reasonable and proper if given
at least 10 days before such sale or other disposition. The Pledgor waives and
agrees not to assert any rights or privileges which it may acquire under Section
9-112 of the Code. The Pledgor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of Collateral are insufficient to pay
the then outstanding Obligations and the fees and disbursements of any attorneys
employed by the Administrative Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales. (a) If the
Administrative Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to Section 8 hereof, and if in the reasonable opinion
of the Administrative Agent it is necessary or reasonably advisable to have the
Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act, the Pledgor will use its best efforts to cause
the Borrower (i) to execute and deliver, and cause the directors and officers of
the Borrower to execute and deliver, all such
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<PAGE> 6
instruments and documents, and do or cause to be done all such other acts as may
be, in the reasonable opinion of the Administrative Agent, necessary or
reasonably advisable to register the Pledged Stock to be sold, or that portion
thereof to be sold under the provisions of the Securities Act, (ii) to use its
best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of not more than one year from
the date of the first public offering of the Pledged Stock, or that portion
thereof to be sold, ending when all such Pledged Stock is sold, and (iii) to
make all amendments thereto and/or to the related prospectus which, in the
reasonable opinion of the Administrative Agent, are necessary or reasonably
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto. If the Administrative Agent shall determine to exercise its right to
sell any or all of the Pledged Stock pursuant to Section 8 hereof, and if in the
reasonable opinion of the Administrative Agent it is necessary or reasonably
advisable to comply with the provisions of the securities or "Blue Sky" laws of
any jurisdiction, the Pledgor agrees to use its best efforts to cause the
Borrower to comply with the provisions of the securities or "Blue Sky" laws of
any and all jurisdictions which the Administrative Agent shall reasonably
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Administrative Agent
may be unable to effect a public sale of any or all the Pledged Stock, by reason
of certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Borrower to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if the Borrower would agree to do so.
(c) The Pledgor further agrees to use its best efforts to
do or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Stock pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Pledgor further agrees that a breach of any of the
covenants contained in this Section will cause irreparable injury to the
Administrative Agent, the Other Representatives and the Lenders, that the
Administrative Agent, the Other Representatives and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section shall be specifically enforceable
against the Pledgor, and, to the extent permitted by law, the Pledgor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred and is continuing under the Credit Agreement.
10. Irrevocable Authorization and Instruction to the
Borrower. The Pledgor hereby authorizes and instructs the Borrower to comply
with any instruction received by it from the Administrative Agent in writing
that (a) states that an Event of Default has occurred and is continuing and (b)
is otherwise in accordance with the terms of this Agreement, without any other
or further instructions from the Pledgor, and the Pledgor agrees that the
Borrower shall be fully protected in so complying.
11. Administrative Agent's Appointment as
Attorney-in-Fact. (a) The Pledgor hereby irrevocably constitutes and appoints
the Administrative Agent and any officer or agent of the Administrative Agent,
with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the Pledgor and
in the name of the Pledgor or in the Administrative Agent's own name, from time
to time in the Administrative Agent's discretion, in the event that an Event of
Default has occurred and is continuing, and to the extent permitted by law, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or reasonably desirable to accomplish the
purposes of this
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Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of attorney granted
in Section 11(a). All powers, authorizations and agencies contained in this
Agreement with respect to the Collateral are powers coupled with an interest and
are irrevocable until payment in full of the Notes, the Reimbursement
Obligations and the other Obligations then due and owing, the termination of the
Commitments and the expiration, termination or return to the Issuing Lender of
the Letters of Credit.
12. Duty of Administrative Agent. The Administrative
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. None of the Administrative Agent, any Other Representative, any Lender
nor any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other Person or
to take any other action whatsoever with regard to the Collateral or any part
thereof.
13. Execution of Financing Statements. Pursuant to
Section 9-402 of the Code, the Pledgor authorizes the Administrative Agent to
file financing statements with respect to the Collateral without the signature
of the Pledgor in such form and in such filing offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A carbon, photostatic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction.
14. Authority of Administrative Agent. The Pledgor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Administrative
Agent, the Other Representatives and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Pledgor, the Administrative Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and neither the Pledgor nor the Borrower shall be under any obligation
to make any inquiry respecting such authority.
15. Notices. All notices, requests and demands under this
Agreement shall be given in accordance with Section 11.2 of the Credit
Agreement, except that notice to the Pledgor shall be given at the address set
forth under its signature below.
16. Release of Collateral and Termination. (a) At such
time as the payment in full of the Notes, the Reimbursement Obligations and the
other Obligations then due and owing shall have occurred, the Commitments have
been terminated and the Letters of Credit have expired, terminated or been
returned to the Issuing Lender, the Collateral shall be released from the Liens
created hereby, and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
the Pledgor hereunder shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the Pledgor. Upon request of the Pledgor following any such
termination, the Administrative Agent shall deliver (at the sole cost and
expense of the Pledgor) to the Pledgor any Collateral held by the Administrative
Agent hereunder, and execute and deliver (at the sole cost and expense of the
Pledgor) to the Pledgor such documents as the Pledgor shall reasonably request
to evidence such termination.
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(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by the Pledgor in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Pledgor (at the sole cost and expense of the Pledgor) all releases or other
documents necessary or reasonably desirable for the release of the Liens created
hereby on such Collateral.
17. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18. Amendments in Writing; No Waiver; Cumulative
Remedies. (a) None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Pledgor and the Administrative Agent in accordance with Section
11.1 of the Credit Agreement.
(b) Neither the Administrative Agent, any Other
Representative nor any Lender shall by any act (except by a written instrument
pursuant to paragraph 18(a) hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent, any Other Representative or any Lender, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent, any Other Representative or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent, such Other
Representative or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
19. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or to be taken into consideration in the interpretation
hereof.
20. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Administrative Agent, the Other Representatives and the Lenders
and their successors and assigns.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
RACI HOLDING, INC.
By:
--------------------------------
Title:
Address for Notices
870 Remington Drive
P.O. Box 700
Madison, NC 27025
Attention: Chief Financial Officer
Telecopy: (336) 548-8629
AGREED TO AND ACCEPTED
AS OF THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
--------------------------
Title:
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<PAGE> 10
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the
Holding Stock Pledge Agreement (as the same may be amended, supplemented, waived
or otherwise modified from time to time, the "Pledge Agreement") dated as of
April 28, 2000 made by RACI Holding Inc. in favor of The Chase Manhattan Bank,
as administrative agent (in such capacity, the "Administrative Agent") for the
several banks and other financial institutions (collectively, the "Lenders")
from time to time parties to the Amended and Restated Credit Agreement dated as
of April 12, 2000 among the undersigned, the Lenders, Chase Securities Inc. and
Banc of America Securities LLC, as joint lead arrangers, Bank of America, N.A.,
as syndication agent, Goldman Sachs Credit Partners, L.P., as documentation
agent (collectively the "Other Representatives") and the Administrative Agent.
The undersigned agrees for the benefit of the Administrative Agent, the Other
Representatives and the Lenders as follows:
1. The undersigned will be bound by the terms of the
Pledge Agreement and will comply with such terms insofar as such terms
are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in
paragraph 5(a) of the Pledge Agreement.
3. The terms of paragraph 9 of the Pledge Agreement
shall apply to it, mutatis mutandis, with respect to all actions that
may be required of it under or pursuant to or arising out of Section 9
of the Pledge Agreement.
REMINGTON ARMS COMPANY, INC.
By:
------------------------------
Title:
----------------------------
Address for Notices:
870 Remington Drive
P.O. Box 700
Madison, NC 27025
Telecopy: (336) 548-8629
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SCHEDULE 1
TO PLEDGE AGREEMENT
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
Stock
Class of Certificate No. of
Issuer Stock* No. Shares
- ------ -------- ---------- ------
<S> <C> <C> <C>
Remington Arms Company, Inc. 1,
</TABLE>
- ----------------------------
* Stock is common stock unless otherwise indicated.
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<PAGE> 1
Exhibit 4.6
HOLDING GUARANTEE
GUARANTEE, dated as of April 28, 2000, made by RACI HOLDING,
INC., a Delaware corporation (the "Guarantor") in favor of THE CHASE MANHATTAN
BANK, a New York banking corporation, as administrative agent (in such capacity,
the "Administrative Agent") for the several banks and other financial
institutions (the "Lenders") from time to time parties to the Amended and
Restated Credit Agreement, dated as of April 28, 2000 (as the same may be
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among Remington Arms Company, Inc., a Delaware corporation
(the "Borrower"), the Lenders, Chase Securities Inc. and Banc of America
Securities LLC, as joint lead arrangers, Bank of America, N.A., as syndication
agent, Goldman Sachs Credit Partners, L.P., as documentation agent,
(collectively the "Other Representatives") and the Administrative Agent.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Extensions of Credit (as defined in the Credit
Agreement) to the Borrower upon the terms and subject to the conditions set
forth therein;
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective initial Extensions of Credit to the Borrower
under the Credit Agreement that the Guarantor shall have executed and delivered
this Guarantee to the Administrative Agent, for the ratable benefit of the
Lenders; and
WHEREAS, the Guarantor is the owner of all the issued and
outstanding capital stock of the Borrower, and it is to the advantage of
Guarantor that the Lenders make the Extensions of Credit to the Borrower;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to induce the Lenders to make their respective
Extensions of Credit to the Borrower under the Credit Agreement, the Guarantor
hereby agrees with the Administrative Agent, for the ratable benefit of the
Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as defined
therein. The following terms shall have the following meanings:
"Guarantee": this Guarantee, as the same may be amended,
supplemented, waived or otherwise modified from time to time.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Borrower to the Administrative Agent, the Other
Representatives and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, the Letters of Credit, the other Loan
Documents, any Interest Rate Agreement entered into with any Lender,
any Guarantee Obligations of the Borrower referred to in Section 8.4(b)
of the Credit Agreement as to which any Lender is a beneficiary, and
any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a
termination of any transaction entered into pursuant to
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an Interest Rate Agreement entered into with any Lender, amounts
payable to any Lender in connection with any such Guarantee Obligation,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Loan Document).
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Guarantee. (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due and
payable (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) The Guarantor further agrees to pay any and all reasonable
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Administrative Agent, any Other
Representative or any Lender in enforcing, or obtaining advice of counsel in
respect of, any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
the Guarantor under this Guarantee. This Guarantee shall remain in full force
and effect until the payment in full of the Notes, the Reimbursement Obligations
and the other Obligations then due and owing, the termination of the Commitments
and the expiration, termination or return to the Issuing Lender of the Letters
of Credit, notwithstanding that from time to time prior thereto the Borrower may
be free from any Obligations.
(c) No payment or payments made by the Borrower or any other
Person or received or collected by the Administrative Agent, any Other
Representative or any Lender from the Borrower or any other Person by virtue of
any action or proceeding or any set-off or appropriation or application, at any
time or from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Guarantor hereunder which shall, notwithstanding any such payment or
payments other than payments made by the Guarantor in respect of the Obligations
or payments received or collected from the Guarantor in respect of the
Obligations pursuant to this Guarantee, remain liable for the Obligations until
payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing, the termination of the Commitments and the
expiration, termination or return to the Issuing Lender of the Letters of
Credit.
(d) The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent, any Other
Representative or any Lender on account of its liability hereunder, it will
notify the Administrative Agent, such Other Representative and such Lender in
writing that such payment is made under this Guarantee for such purpose.
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3. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default under Section 9(a) of the Credit Agreement,
the Administrative Agent and each Lender is hereby irrevocably authorized at any
time and from time to time without notice to the Guarantor, any such notice
being expressly waived by the Guarantor to the extent permitted by applicable
law, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against or on account of the
obligations and liabilities of the Guarantor to the Administrative Agent or such
Lender hereunder with respect to any amount then due and payable under Section
9(a) of the Credit Agreement, whether or not the Administrative Agent or such
Lender has made any demand for payment and although such obligations and
liabilities may be contingent or unmatured. The Administrative Agent and each
Lender, as the case may be, shall notify the Guarantor promptly of any such
set-off and the application made by the Administrative Agent or such Lender, as
the case may be, of the proceeds thereof; provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Administrative Agent and each Lender under this paragraph are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or such Lender may have.
4. No Subrogation. Notwithstanding anything to the contrary in
this Guarantee, the Guarantor hereby irrevocably waives all rights which may
have arisen in connection with this Guarantee to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of the Administrative Agent, any Other
Representative or any Lender against the Borrower or against any collateral
security or guarantee or right of offset held by the Administrative Agent, any
Other Representative or any Lender for the payment of the Obligations. The
Guarantor hereby further irrevocably waives all contractual, common law,
statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against the Borrower or any other
Person which may have arisen in connection with this Guarantee. So long as the
Obligations remain outstanding, if any amount shall be paid by or on behalf of
the Borrower to the Guarantor on account of any of the rights waived in this
paragraph, such amount shall be held by the Guarantor in trust for the
Administrative Agent and each Lender, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be held
as collateral security for the Obligations (whether matured or unmatured),
and/or then or at any time thereafter may be applied against the Obligations
then due and owing in such order as the Administrative Agent may determine. The
provisions of this paragraph shall survive the termination of this Guarantee,
the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations, the termination of the Commitments and the expiration, termination
or return of the Letters of Credit.
5. Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Guarantor, and without notice to
or further assent by the Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and the Credit Agreement,
any Notes, and the other Loan Documents (other than this Agreement) and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders, as the case may be) may deem advisable from time
to time, and any collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold,
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exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for this
Guarantee or any property subject thereto. When making any demand hereunder
against the Guarantor, the Administrative Agent or any Lender may, but shall be
under no obligation to, make a similar demand on the Borrower or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from the Borrower or any such other
guarantor or any release of the Borrower or such other guarantor shall not
relieve the Guarantor of its obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Administrative Agent, any Other Representative or any Lender against
the Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent, any
Other Representative or any Lender upon this Guarantee or acceptance of this
Guarantee; the 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 Guarantee; and all dealings between the Borrower
or the Guarantor, on the one hand, and the Administrative Agent, the Other
Representatives and the Lenders, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or the Guarantor with respect
to the Obligations. To the extent permitted by law, this Guarantee shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Credit Agreement,
any Note, or any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent, any
Other Representative or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower against the Administrative Agent,
any Other Representative or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or the Guarantor) (other
than payment in full of the Obligations) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Administrative Agent, any Other Representative and any Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the Borrower or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Administrative Agent, any Other Representative
or any Lender to pursue such other rights or remedies or to collect any payments
from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve the Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent, any Other Representative or any Lender against the Guarantor. This
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Guarantor and its successors and
assigns thereof, and shall inure to the benefit of the Administrative Agent, the
Other Representatives and the Lenders, and their respective successors,
indorsees, transferees and assigns, until the payment in full of the Notes, the
Reimbursement Obligations, the other Obligations then due and owing and the
obligations of the Guarantor under this Guarantee then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit, notwithstanding that from time to time
during the term of the Credit Agreement the Borrower may be free from any
Obligations, upon the occurrence of all of which this Guarantee shall, subject
to paragraph 7 hereof, terminate.
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7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent, any Other Representative or
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. The Guarantor hereby agrees that the Obligations
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent set forth in Section 11.2 of
the Credit Agreement.
9. Representations and Warranties. The Guarantor
represents and warrants to the Administrative Agent, the Other Representatives
and the Lenders that:
(a) the Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own and
operate its property, to lease the property it operates and to conduct
the business in which it is currently engaged;
(b) the Guarantor has the corporate power and authority to
make, deliver and perform its obligations under this Guarantee and has
taken all necessary corporate action to authorize its execution,
delivery and performance of this Guarantee and the other Loan Documents
to which it is a party;
(c) each of this Guarantee and the other Loan Documents to
which it is a party has been duly executed and delivered on behalf of
the Guarantor and constitutes a legal, valid and binding obligation of
the Guarantor enforceable against the Guarantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law);
(d) the execution, delivery and performance of this Guarantee
and the other Loan Documents to which it is a party will not violate
any Requirement of Law or Contractual Obligation of the Guarantor in
any respect that would reasonably be expected to have a Material
Adverse Effect and will not result in, or require, the creation or
imposition of any Lien on any of the properties or revenues of the
Guarantor pursuant to any such Requirement of Law or Contractual
Obligation (other than pursuant to any Loan Document);
(e) no consent or authorization of, filing with, or other act
by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee and the other Loan
Documents to which the Guarantor is a party;
(f) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or
against any of its properties or revenues (i) with respect to this
Guarantee and the other Loan Documents to which it is a party or any of
the transactions contemplated hereby or thereby or (ii) which would
reasonably be expected to have a Material Adverse Effect;
(g) the Guarantor has good record and marketable title in fee
simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its
other
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material property, and none of such property is subject to any Lien
except for Liens of any of the types referred to in Section 8.3 of the
Credit Agreement; and
(h) the Guarantor has filed or caused to be filed all United
States federal income tax returns and all other material tax returns
which, to the knowledge of the Guarantor, are required to be filed and
has paid (a) all taxes shown to be due and payable on said returns or
(b) all taxes shown to be due and payable on any assessments of which
it has received notice made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any (i) taxes, fees or other
charges with respect to which the failure to pay, in the aggregate,
would not have a Material Adverse Effect, or (ii) taxes, fees or other
charges the amount or validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Guarantor or any of its Subsidiaries); and no tax Lien has been filed,
and, to the knowledge of the Guarantor, no claim is being asserted,
with respect to any such tax, fee or other charge.
(i) Since December 31, 1999 there has been no development or
event which has had or would be reasonably expected to have a Material
Adverse Effect.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on the date of
each Extension of Credit to the Borrower under the Credit Agreement as though
made hereunder on and as of such date.
10. Covenants. The Guarantor hereby covenants and agrees with
the Administrative Agent, the Other Representatives and the Lenders that, from
and after the date of this Guarantee until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit,
(a) the Guarantor shall not, and shall not permit the
Borrower or any of its other Subsidiaries to, take
any action or fail to take any action, as the case
may be, if such action or failure would result in a
violation of any of the covenants of the Borrower
contained in Sections 7 and 8 of the Credit
Agreement,
(b) the Guarantor shall not conduct, transact or
otherwise engage in, or commit to transact, conduct
or otherwise engage in, any business or operations
other than (i) transactions contemplated by the Loan
Documents and the provision of administrative, legal,
accounting and management services to any of the
Borrower and its Subsidiaries, (ii) the ownership of
the capital stock of the Borrower, and the exercise
of rights and performance of obligations in
connection therewith, (iii) the entry into, and
exercise of rights and performance of obligations in
respect of, (A) this Guarantee and the other Loan
Documents to which the Guarantor is a party, and any
other agreement to which it is a party on the date
hereof, in each case as amended, supplemented, waived
or otherwise modified from time to time, and any
refinancings, refundings, renewals or extensions
thereof, (B) contracts and agreements with officers,
directors and employees of the Guarantor or a
Subsidiary thereof relating to their employment or
directorships, (C) insurance policies and related
contracts and agreements, (D) equity subscription
agreements, registration rights agreements, voting
and other stockholder agreements, engagement letters,
underwriting agreements and other agreements in
respect of its equity securities or any offering,
issuance or sale thereof, including but not limited
to in respect of Management Subscription Agreements
and (E) the Holding Subordinated Note Guarantee, (iv)
the offering, issuance, sale and repurchase or
redemption of, and
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dividends or distributions on, its equity securities,
(v) the filing of registration statements, and
compliance with applicable reporting and other
obligations, under federal, state or other securities
laws, (vi) the listing of its equity securities and
compliance with applicable reporting and other
obligations in connection therewith, (vii) the
retention of (and the entry into, and exercise of
rights and performance of obligations in respect of,
contracts and agreements with) transfer agents,
private placement agents, underwriters, counsel,
accountants and other advisors and consultants,
(viii) the performance of obligations under and
compliance with its certificate of incorporation and
by-laws, or any applicable law, ordinance,
regulation, rule, order, judgment, decree or permit,
including, without limitation, as a result of or in
connection with the activities of the Borrower and
its Subsidiaries, (ix) the incurrence and payment of
its operating and business expenses and any taxes for
which it may be liable, (x) making loans to, or other
Investments in, or incurrence of Indebtedness to, its
Subsidiaries, and (xi) other activities incidental or
related to the foregoing,
(c) The Guarantor shall not own, lease, manage or
otherwise operate any properties or assets other than
in connection with the activities described in clause
(b) above, or incur, create, assume or suffer to
exist any Indebtedness or Guarantee Obligations or
other liabilities or financial obligations other than
as may be incurred, created or assumed or exist in
connection with the activities described in clause
(b) above (including but not limited to Guarantee
Obligations in connection with (i) Management
Subscription Agreements and (ii) the Holding
Subordinated Note Guarantee),
(d) the Guarantor shall (i) preserve, renew and keep in
full force and effect its corporate existence and
(ii) comply in all material respects with all
Contractual Obligations and Requirements of Law
applicable to it, except to the extent that the
failure to comply therewith would not reasonably be
expected, in the aggregate, to have a Material
Adverse Effect and
(e) the Guarantor shall not amend, modify or change, or
consent to any amendment, modification or change to
any material term of the Holding Subordinated Note
Guarantee (including, without limitation, the
subordination provisions thereof, covenants, stated
maturity, principal amount or rate of payment of
interest) in a manner that would have an adverse
effect on the interests of the Administrative Agent
or the Lenders hereunder or under any Loan Document
without the prior consent of the Required Lenders.
11. Further Assurances. The Guarantor hereby covenants and
agrees with the Administrative Agent, the Other Representatives and the Lenders
that, from and after the date of this Guarantee until payment in full of the
Notes, the Reimbursement Obligations and the other Obligations then due and
owing, the termination of the Commitments and the expiration, termination or
return to the Issuing Lender of the Letters of Credit, at any time and from time
to time, upon the written request of the Administrative Agent, and at the sole
expense of the Guarantor, the Guarantor will promptly and duly execute and
deliver such further instruments and documents and take such further actions as
the Administrative Agent may reasonably request for the purposes of obtaining or
preserving the full benefits of this Guarantee and of the rights and powers
herein granted.
12. Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as among
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the Administrative Agent, the Other Representatives and the Lenders, be governed
by the Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Administrative Agent and
the Guarantor, the Administrative Agent shall be conclusively presumed to be
acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and the Guarantor shall not be under any obligation to make
any inquiry respecting such authority.
13. Notices. All notices, requests and demands under this
Guarantee shall be given in accordance with Section 11.2 of the Credit Agreement
and, in the case of the Guarantor, its address or transmission number for
notices shall be as set forth under its signature below.
The Administrative Agent, each Other Representative, each
Lender and the Guarantor may change its address and transmission numbers for
notices by notice in the manner provided in Section 11.2 of the Credit
Agreement.
14. Counterparts. This Guarantee may be executed on any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the counterparts of
this Guarantee shall be lodged with the Administrative Agent.
15. Severability. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Integration. This Guarantee represents the entire
agreement of the Guarantor and the Administrative Agent with respect to the
subject matter hereof and there are no promises or representations by the
Guarantor, the Administrative Agent, any Other Representative or any Lender
relative to the subject matter hereof not reflected or referred to herein.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the Administrative Agent in accordance with Section 11.1 of
the Credit Agreement.
(b) Neither the Administrative Agent, any Other Representative
nor any Lender shall by any act (except by a written instrument pursuant to
paragraph 17(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent, any Other Representative or any Lender, any right, power
or privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Administrative Agent, any Other Representative or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent, such Other
Representative or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
18. Section Headings. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
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19. Submission To Jurisdiction; Waivers. Each party hereto
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Guarantor, the applicable Lender, the applicable Other
Representative or the Administrative Agent, as the case may be, at the
address referred to in paragraph 13 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this paragraph any punitive damages.
20. WAIVERS OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
21. Acknowledgements. The Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee and the other Loan Documents
to which it is a party;
(b) none of the Administrative Agent, any Co-Agent nor any
Lender has any fiduciary relationship with or duty to the Guarantor
arising out of or in connection with this Guarantee or any of the other
Loan Documents, and the relationship between the Administrative Agent,
the Other Representatives and Lenders, on one hand, and the Borrower
and the Guarantor, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower, the
Guarantor and the Lenders.
22. Successors and Assigns. This Guarantee shall be binding
upon the respective successors and assigns of the Guarantor, the Administrative
Agent, the Other Representatives and the Lenders, and shall inure
9
<PAGE> 10
to the benefit of the Administrative Agent, the Other Representatives and the
Lenders and their respective successors and assigns.
10
<PAGE> 11
23. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
RACI HOLDING, INC.
By:
---------------------------------
Title:
----------------------------
Address for Notices:
870 Remington Drive
P.O. Box 700
Madison, NC 27025
Attention: Chief Financial Officer
Telecopy: (336) 548-8629
ACKNOWLEDGED AND AGREED AS
OF THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
---------------------------------
Title:
----------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF RACI HOLDING, INC. FOR THE YEAR-TO-DATE ENDED MARCH 31,
2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 600
<SECURITIES> 0
<RECEIVABLES> 119,500
<ALLOWANCES> 2,900
<INVENTORY> 80,300
<CURRENT-ASSETS> 224,900
<PP&E> 151,300
<DEPRECIATION> 65,500
<TOTAL-ASSETS> 399,500
<CURRENT-LIABILITIES> 96,600
<BONDS> 86,800
0
0
<COMMON> 0
<OTHER-SE> 132,000
<TOTAL-LIABILITY-AND-EQUITY> 399,500
<SALES> 96,600
<TOTAL-REVENUES> 96,600
<CGS> 64,300
<TOTAL-COSTS> 64,300
<OTHER-EXPENSES> 19,600
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,900
<INCOME-PRETAX> 9,800
<INCOME-TAX> 4,000
<INCOME-CONTINUING> 5,800
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,800
<EPS-BASIC> 7.34
<EPS-DILUTED> 7.12
</TABLE>
<PAGE> 1
EXHIBIT 99.1
RACI HOLDING, INC. AND SUBSIDIARIES
RECONCILIATION OF INCOME FROM OPERATIONS TO EBITDA (A)
(Dollars in Millions)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------
2000 1999
------ -------
(Unaudited)
<S> <C> <C>
Net Income from Operations (A) $ 5.8 $ 4.5
Interest Expense 2.9 4.0
Provision for Income Taxes 4.0 3.0
Depreciation and Amortization (B) 4.0 3.8
Other Noncash Charges (C) 0.1 0.5
Nonrecurring and Restructuring Expense (D) -- (0.2)
----- -----
Total 11.0 11.1
----- -----
EBITDA $16.8 $15.6
===== =====
</TABLE>
Notes:
(A) EBITDA as presented may not be comparable to similar measures reported
by other companies. Generally, EBITDA is defined to consist of net
income (loss), adjusted to exclude cash interest expense, income tax
expense, depreciation, amortization, noncash expenses and charges, gain
or loss on sale or write-off of assets and extraordinary, unusual or
nonrecurring gains, losses, charges or credits. EBITDA is presented to
facilitate a more complete analysis of the Company's financial
performance, by adding back non-cash and nonrecurring items to
operating income, as an indicator of the Company's ability to generate
cash to service debt and other fixed obligations. Investors should not
rely on EBITDA as an alternative to operating income or cash flows, as
determined in accordance with generally accepted accounting principles,
as an indicator of the Company's operating performance, liquidity or
ability to meet cash needs. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations" for further
discussion of the Company's operating income and cash flows.
(B) Excludes amortization of deferred financing costs of $0.4 for the
year-to-date period ended March 31, 2000 and $0.5 amortization of
deferred financing costs for the comparable year-to-date period, which
is included in interest expense.
(C) Noncash charges consist of a $0.1 a pension accrual for the three
months ended March 31, 2000 and a $0.4 pension accrual and $0.1 for
loss on disposal of assets in 1999.
(D) Nonrecurring and restructuring expenses excluded in calculating EBITDA
consist of $0.2 nonrecurring professional fee, related to a proposed
transaction that was not consummated, offset by $0.4 write-down of
restructuring accrual for the year-to-date period ended March 31, 1999.
