<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2 to
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
Under the Securities Exchange Act of 1934
--------------------
TRICO PRODUCTS CORPORATION
(Name of Subject Company)
STANT EXPANSION CORPORATION
STANT CORPORATION
(Bidders)
--------------------
Common Stock, No Par Value
(Title of Class of Securities)
--------------------
896114105
(CUSIP Number of Class of Securities)
--------------------
ANTHONY W. GRAZIANO, JR., ESQ.
STANT EXPANSION CORPORATION
C/O STANT CORPORATION
425 COMMERCE DRIVE
RICHMOND, INDIANA 47374
(317) 962-6655
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copies to:
TIMOTHY G. MASSAD, ESQ.
CRAVATH, SWAINE & MOORE
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
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Page 1 of ___ pages
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<TABLE>
<CAPTION>
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CUSIP No. 896114105 14D-1 and 13D Page 2 of Pages
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<S> <C> <C>
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1 NAME OF REPORTING PERSONS:
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stant Expansion Corporation (35-1936445)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCES OF FUNDS
AF
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
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7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
Approximately 1,759,250
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8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [ ]
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9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 93.5% of the Shares outstanding as of
December 12, 1994*
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10 TYPE OF REPORTING PERSON
CO
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</TABLE>
* See footnote on following page.
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<TABLE>
<CAPTION>
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CUSIP No. 896114105 14D-1 and 13D Page 3 of Pages
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<S> <C> <C>
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1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stant Corporation (35-1768429)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCES OF FUNDS
BK
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
Approximately 1,759,250
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8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [ ]
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9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
Approximately 93.5% of the Shares outstanding as of
December 12, 1994*
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10 TYPE OF REPORTING PERSON
CO
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</TABLE>
* On December 12, 1994, Stant Expansion Corporation (the 'Purchaser'), a
wholly owned subsidiary of Stant Corporation, accepted for payment
approximately 1,759,250 shares of common stock, no par value (the 'Shares'),
of Trico Products Corporation, representing all the Shares validly tendered as
of Midnight, New York City time, on December 12, 1994, pursuant to the
Purchaser's tender offer for all outstanding Shares for a price of $85.00 per
Share, net to the seller in cash.
<PAGE>
4
Stant Corporation ('Parent') and Stant Expansion Corporation
('Sub') hereby amend and supplement their combined Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D originally filed on November 14,
1994, as amended by Amendment No. 1 thereto filed on December 1, 1994 (as so
amended, the 'Statement'), with respect to an offer (the 'Offer') to purchase
all outstanding shares of common stock, no par value, of Trico Products
Corporation, a New York corporation (the 'Company'), on the terms described in
the Offer to Purchase dated November 14, 1994. Capitalized terms not defined
herein have the meanings assigned thereto in the Statement.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On December 12, 1994, Parent entered into a Credit
Agreement dated as of December 12, 1994, among Parent, various lending
institutions and Chemical Bank, as agent. Such Credit Agreement was entered
into as contemplated by the Commitment Letter. A copy of the Credit Agreement
is filed as Exhibit (a)(11) herewith.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE COMPANY'S SECURITIES.
On December 12, 1994, Parent, Sub and the Company entered into
an amendment and restatement of Section 9.3(c) of the Merger Agreement as set
forth in Exhibit (c)(4) hereto.
ITEM 10. ADDITIONAL INFORMATION.
(g) On December 13, 1994, Parent issued a press release
announcing that (i) the Purchaser's Offer had expired pursuant to its terms at
Midnight, New York City time, on December 12, 1994, at which time
approximately 1,759,250 Shares, representing approximately 93.5% of the
outstanding Shares, had been tendered pursuant to the Offer and (ii) the
Purchaser had accepted for payment all such tendered Shares. A copy of the
press release is attached hereto as Exhibit (a)(12).
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(11) Credit Agreement dated as of December 12, 1994, among
Stant Corporation, various lending institutions and
Chemical Bank, as agent.
(a)(12) Press release dated December 13, 1994.
(c)(4) Amendment dated as of December 12, 1994 to the
Agreement and Plan of Merger dated as of November 8,
1994, by and among Parent, Sub and the Company.
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5
SIGNATURE
After due inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and
correct.
Dated: December 13, 1994
STANT EXPANSION CORPORATION.,
by
/s/ Anthony W. Graziano, Jr.
--------------------------------------------------
Name: Anthony W. Graziano, Jr.
Title: Vice President, General Counsel and
Secretary
STANT CORPORATION,
by
/s/ Anthony W. Graziano, Jr.
--------------------------------------------------
Name: Anthony W. Graziano, Jr.
Title: Vice President, General Counsel and
Secretary
<PAGE>
6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Sequentially
Numbered Pages
- ---------- ----------- --------------
<S> <C> <C>
(a)(11) Credit Agreement dated as of December 12,
1994, among Stant Corporation, various
lending institutions and Chemical Bank,
as agent.
(a)(12) Press release dated December 13, 1994.
(c)(4) Amendment dated as of December 12, 1994 to the
Agreement and Plan of Merger dated as of November 8, 1994,
by and among Parent, Sub and the Company.
</TABLE>
STATEMENT OF DIFFERENCES
The section mark symbol is expressed as ss.
CREDIT AGREEMENT, dated as of December 12, 1994, among STANT CORPORATION
(the 'Borrower'), a Delaware corporation, the lending institutions listed from
time to time on Annex I hereto (each a 'Bank' and, collectively, the 'Banks'),
and CHEMICAL BANK, as agent (the 'Agent'). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so
defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein, the
Banks are willing to make available to the Borrower the credit facilities
provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitment. Subject to and upon the terms and conditions herein set
forth, each Bank severally agrees to make a loan or loans (each a 'Loan' and,
collectively, the 'Loans') to the Borrower, which Loans shall be drawn, to the
extent such Bank has a commitment under such Facility, under the Term Facility,
the Revolving Facility or the Swingline Facility, as set forth below:
(a) Loans under the Term Facility (each a 'Term Loan' and, collectively,
the 'Term Loans'): (i) shall be made pursuant to (x) an initial borrowing on the
Initial Borrowing Date and (y) a second borrowing on the Merger Borrowing Date;
(ii) except as hereinafter provided, may, at the option of the Borrower, be
incurred and maintained as, and/or converted into Base Rate Loans or Eurodollar
Loans, provided that all Term Loans made by all Banks pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist entirely
of Term Loans of the same Type; and (iii) shall not exceed in aggregate
principal amount for any Bank at the time of incurrence thereof the Term
Commitment, if any, of such Bank as in effect on such date. Once repaid, Term
Loans borrowed hereunder may not be reborrowed.
(b) Loans under the Revolving Facility (each a 'Revolving Loan' and,
collectively, the 'Revolving Loans'): (i) shall be made at any time and from
time to time on and after the Initial Borrowing Date and prior to the Maturity
Date; (ii) except as hereinafter provided, may, at the option of the Borrower,
be incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that all Revolving Loans
<PAGE>
made as part of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Revolving Loans of the same Type; (iii) may be repaid and
reborrowed in accordance with the provisions hereof; and (iv) shall not exceed
for any Bank at any time outstanding that aggregate principal amount which, when
added to the product of (x) such Bank's Percentage and (y) the sum of (I) the
aggregate amount of Letter of Credit Outstandings at such time and (II) the
aggregate principal amount of all Swingline Loans then outstanding, equals the
Revolving Commitment of such Bank at such time.
(c)(I) Subject to and upon the terms and conditions herein set forth, the
Swingline Lender agrees, at any time and from time to time after the Initial
Borrowing Date and prior to the Swingline Expiry Date, to make a loan or loans
(each a 'Swingline Loan' and, collectively, the 'Swingline Loans') to the
Borrower, which Swingline Loans: (i) shall be made and maintained as Base Rate
Loans or such other interest rate that is acceptable to the Borrower and the
Swingline Lender; (ii) shall not exceed at any time outstanding the Swingline
Commitment; (iii) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of all Revolving
Loans then outstanding and all Letter of Credit Outstandings at such time, the
Total Revolving Commitment then in effect; and (iv) may be repaid and reborrowed
in accordance with the provisions hereof. On the Swingline Expiry Date, all
Swingline Loans shall be repaid in full.
(II) The Swingline Lender shall not make any Swingline Loan after receiving
a written notice from the Borrower or any Bank stating that a Default or an
Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice of (i) rescission of all such notices
from the party or parties originally delivering such notice (which notice of
rescission such Person or Persons shall give to the Swingline Lender when such
Person or Persons believe in good faith that such Default or Event of Default is
no longer continuing) or (ii) the waiver of such Default or Event of Default by
the Required Banks. Also, the Swingline Lender shall have no obligation to make
any Swingline Loan in the event a Bank Default exists unless the Swingline
Lender has entered into arrangements reasonably satisfactory to it and the
Borrower to eliminate the Swingline Lender's risk with respect to any such
Defaulting Bank's or Banks' obligations to fund Mandatory Borrowings, including
by collateralizing such Defaulting Bank's or Banks' Revolving Percentages of the
Swingline Loans outstanding from time to time. On any Business Day, the
Swingline Lender may, in its sole discretion, give notice to the Banks that all
then outstanding Swingline Loans shall be funded with a Borrowing of Revolving
Loans (provided that such notice shall be deemed to have been automatically
given upon the occurrence of an Event of Default under Section 9.05), in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a 'Mandatory Borrowing') shall be made on the immediately succeeding
Business Day by all Banks with a Revolving Commitment pro rata based on each
such Bank's Percentage and the proceeds thereof shall be applied directly to the
Swingline Lender to repay such
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outstanding Swingline Loans. Each Bank with a Revolving Commitment hereby
irrevocably agrees to make such Revolving Loans pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified to it in writing by the Swingline Lender
notwithstanding: (i) that the amount of the Mandatory Borrowing may not comply
with the minimum amount for a Borrowing specified in Section 1.02; (ii) whether
any conditions specified in Section 5 are then satisfied; (iii) the date of such
Mandatory Borrowing; and (iv) any reduction in the Total Revolving Commitment
after any such Swingline Loans were made. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code in respect of the Borrower), each Bank with a
Revolving Commitment hereby agrees that it shall forthwith purchase from the
Swingline Lender (without recourse or warranty) such assignment of the
outstanding Swingline Loans as shall be necessary to cause such Banks to share
in such Swingline Loans ratably based upon their respective Percentages,
provided that all interest payable on such Swingline Loans shall be for the
account of the Swingline Lender until the date the respective assignment is
purchased and, to the extent attributable to the purchased assignment, shall be
payable to the Bank purchasing same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount of each
Borrowing under a Facility shall not be less than the Minimum Borrowing Amount
for such Facility (except that Mandatory Borrowings shall be made in the amounts
required by Section 1.01(c)). More than one Borrowing may be incurred on any
day, provided that at no time shall there be outstanding more than eleven
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur Loans
under any Facility (other than the Swingline Facility and any Mandatory
Borrowings), it shall give the Agent at its Notice Office, prior to 12:00 Noon
(New York time), at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar
Loans and at least one Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Base Rate Loans to be made
hereunder, provided that the Borrower shall be permitted to request an initial
Borrowing of Base Rate Loans hereunder by giving the Agent at its Notice Office,
prior to 10:00 A.M. (New York time), written notice (or telephonic notice
promptly confirmed in writing) on the date of such Borrowing. Each such notice
(a 'Notice of Borrowing') shall be in the form of Exhibit A and shall be
irrevocable and shall specify: (i) the Facility pursuant to which such Borrowing
is being made; (ii) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing; (iii) the date of Borrowing (which shall be a
Business Day); and (iv) whether the respective Borrowing shall consist of Base
Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the Interest Period to
be initially applicable thereto. The Agent shall promptly give each Bank written
notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing, of such
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Bank's proportionate share thereof and of the other matters covered by the
Notice of Borrowing.
(b) Whenever the Borrower desires to incur Swingline Loans hereunder, it
shall give the Swingline Lender no later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of such incurrence. Each such notice shall be
irrevocable and specify in each case (i) the date of Borrowing (which shall be a
Business Day) and (ii) the aggregate principal amount of the Swingline Loans to
be made pursuant to such Borrowing. The Swingline Lender shall promptly give the
Agent written notice (or telephonic notice promptly confirmed in writing) of
each proposed Borrowing of Swingline Loans and of the other matters covered by
the Notice of Borrowing.
(c) Mandatory Borrowings shall be made upon the notice specified in Section
1.01(c), with the Borrower irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(d) Without in any way limiting the obligation of the Borrower to confirm
in writing any telephonic notice permitted to be given hereunder, the Agent and
the Swingline Lender may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice believed by the Agent or the
Swingline Lender, as the case may be, in good faith to be from an Authorized
Officer of the Borrower as a person entitled to give telephonic notices under
this Agreement on behalf of the Borrower. In each such case, the Agent's and the
Swingline Lender's record of the terms of such telephonic notice shall be
conclusive absent manifest error.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (2:00 P.M. in the
case of Swingline Loans) (New York time) on the date specified in each Notice of
Borrowing, each Bank with a Commitment under the respective Facility will make
available its pro rata share of each Borrowing requested to be made on such date
in the manner provided below. All amounts shall be made available to the Agent
in U.S. dollars and immediately available funds at the Payment Office and the
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received. Unless the Agent shall have been notified by any Bank prior
to the date of Borrowing that such Bank does not intend to make available to the
Agent its portion of the Borrowing or Borrowings to be made on such date, the
Agent may assume that such Bank has made such amount available to the Agent on
such date of Borrowing, and the Agent, in reliance upon such assumption, may (in
its sole discretion and without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Agent by such Bank and the Agent has made available same
to the Borrower, the Agent shall be entitled to recover such corresponding
amount from such Bank. If such Bank does not pay
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<PAGE>
such corresponding amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Agent. The Agent shall also be entitled to recover
from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Agent to the Borrower to the date such
corresponding amount is recovered by the Agent, at a rate per annum equal to (x)
if paid by such Bank, the overnight Federal Funds Effective Rate or (y) if paid
by the Borrower, the then applicable rate of interest, calculated in accordance
with Section 1.08, for the respective Loans.
(b) Notwithstanding the foregoing, the Special Funding Procedures Letter
shall be executed by the Borrower and each Bank prior to the Initial Borrowing
Date to provide for mutually satisfactory arrangements whereby a pre-funding of
the initial Loans under this Agreement comprising Share Purchase Loans shall be
made in advance of the Tender Offer Closing Date.
(c) Nothing herein shall be deemed to relieve any Bank from its obligation
to fulfill its commitments hereunder or to prejudice any rights which the
Borrower may have against any Bank as a result of any default by such Bank
hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made to it by each Bank shall be evidenced: (i) if Term
Loans, by a promissory note substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each a 'Term Note' and,
collectively, the 'Term Notes'); (ii) if Revolving Loans, by a promissory note
substantially in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (each a 'Revolving Note' and, collectively, the 'Revolving
Notes'); and (iii) if Swingline Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-3, with blanks
appropriately completed in conformity herewith (the 'Swingline Note').
(b) The Term Note issued to each Bank with a Term Commitment shall: (i) be
executed by the Borrower; (ii) be payable to the order of such Bank and be dated
the Initial Borrowing Date; (iii) be in a stated principal amount equal to the
Term Commitment of such Bank and be payable in the principal amount of Term
Loans evidenced thereby; (iv) mature on the Maturity Date; (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Revolving Note issued to each Bank with a Revolving Commitment
shall: (i) be executed by the Borrower; (ii) be payable to the order of such
Bank and be dated the Initial Borrowing Date; (iii) be in a stated principal
amount equal to the Revolving
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Commitment of such Bank and be payable in the principal amount of Revolving
Loans evidenced thereby; (iv) mature on the Maturity Date; (v) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans and Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
subject to mandatory repayment as provided in Section 4.02; and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Swingline Note issued to the Swingline Lender shall: (i) be payable
to the order of the Swingline Lender and be dated the Initial Borrowing Date;
(ii) be in a stated principal amount equal to the Swingline Commitment and be
payable in the outstanding principal amount of the Swingline Loans evidenced
thereby; (iii) mature on the Swingline Expiry Date; (iv) bear interest as
provided in the appropriate clause of Section 1.08 in respect of the Base Rate
Loans evidenced thereby; (v) be subject to mandatory pre-payment as provided in
Section 4.02; and (vi) be entitled to the benefits of this Agreement and the
other Credit Documents.
(e) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will, prior to any transfer
of its Note, endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation or any
error in any such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on any
Business Day all or a portion at least equal to the applicable Minimum Borrowing
Amount of the outstanding principal amount of the Loans owing pursuant to a
single Facility (other than under the Swingline Facility, with all Swingline
Loans to at all times be maintained as Base Rate Loans) into a Borrowing or
Borrowings pursuant to such Facility of another Type of Loan, provided that (i)
no partial conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans made pursuant to such
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii)
Base Rate Loans may only be converted into Eurodollar Loans if no Default or
Event of Default is in existence on the date of the conversion and (iii)
Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be limited
in numbers as provided in Section 1.02. Each such conversion shall be effected
by the Borrower giving the Agent at its Notice Office, prior to 12:00 Noon (New
York time), at least three Business Days' (or one Business Day's, in the case of
a conversion into Base Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each a 'Notice of Conversion') specifying the
Loans to be so converted, the Type of Loans to be converted into and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Agent shall give each Bank prompt notice of
any such proposed conversion affecting any of its Loans.
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<PAGE>
1.07 Pro Rata Borrowings. All Borrowings of Loans (other than Swingline
Loans) under this Agreement shall be made by the Banks pro rata on the basis of
their Term Commitments or Revolving Commitments, as the case may be. It is
understood that no Bank shall be responsible for any default by any other Bank
in its obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans provided to be made by it hereunder, regardless of the failure
of any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Percentage plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear interest
from the date of the Borrowing thereof until maturity (whether by acceleration
or otherwise) at a rate per annum which shall at all times be the Applicable
Percentage plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall bear interest at a rate per annum equal to the Base Rate in effect from
time to time plus the sum of (i) 2% and (ii) the Applicable Percentage then in
effect for Base Rate Loans, provided that each Eurodollar Loan shall bear
interest after maturity (whether by acceleration or otherwise) until the end of
the Interest Period then applicable thereto at a rate per annum equal to 2% in
excess of the rate of interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any Borrowing to
but excluding the date of any repayment thereof and shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on the last Business Day of
each March, June, September and December, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period of six months, on the date occurring three months
after the first day of such Interest Period and (iii) in respect of each Loan,
on any prepayment or conversion (on the amount prepaid or converted), at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(e) All computations of interest hereunder shall be made in accordance with
Section 12.07(b).
(f) The Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the Borrower and
the Banks thereof.
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<PAGE>
1.09 Interest Periods. (a) At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Agent written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period shall extend beyond the Maturity Date;
(v) no Interest Period with respect to any Borrowing of Term Loans may
extend beyond any date upon which a Scheduled Repayment is required to be
made if, after giving effect to the selection of such Interest Period, the
aggregate principal amount of Term Loans maintained as Eurodollar Loans
with Interest Periods ending after such date would exceed the aggregate
principal amount of Term Loans permitted to be outstanding after such
Scheduled Repayment; and
(vi) no Interest Period may be elected at any time when a Default
under Section 9.01 or an Event of Default is then in existence.
(b) If upon the expiration of any Interest Period, the Borrower has failed
to (or may not) elect a new Interest Period to be applicable to the respective
Borrowing of
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Eurodollar Loans as provided above, the Borrower shall be deemed to have elected
to convert such Borrowing into a Borrowing of Base Rate Loans effective as of
the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in the
case of clause (i) below, the Agent or (y) in the case of clauses (ii) and (iii)
below, any Bank shall have determined on a reasonable basis (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the Effective Date
affecting the interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided
for in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder in an amount
which such Bank deems material with respect to any Eurodollar Loans (other
than any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or
similar charges) because of any change since the Effective Date in any
applicable law, governmental rule, regulation, guideline, order or request
(whether or not having the force of law), or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order or request (such as, for
example, but not limited to, a change in official reserve requirements,
but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate); or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with any
change since the Effective Date in any law, governmental rule, regulation,
guideline or order (or interpretation or application thereof);
then, and in any such event, such Bank (or the Agent in the case of clause (i)
above) shall (x) on such date and (y) within 10 Business Days of the date on
which such event no longer exists give notice (by telephone confirmed in
writing) to the Borrower and to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Banks). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion given by the Borrower with respect
to Eurodollar Loans which have not yet been incurred shall be deemed rescinded
by the Borrower or, in
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the case of a Notice of Borrowing, shall, at the option of the Borrower, be
deemed converted into a Notice of Borrowing for Base Rate Loans to be made on
the date of Borrowing contained in such Notice of Borrowing, (y) in the case of
clause (ii) above, the Borrower shall pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine) as shall be required to compensate such Bank for
such increased costs or reductions in amounts receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing the detailed
basis for the calculation thereof, which basis must be reasonable, submitted to
the Borrower by such Bank shall, absent manifest error, be final and conclusive
and binding upon all parties hereto) and (z) in the case of clause (iii) above,
the Borrower shall take one of the actions specified in Section 1.10(b) as
promptly as possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of
a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the Borrower shall)
either (i) if the affected Eurodollar Loan is then being made pursuant to a
Borrowing, by giving the Agent telephonic notice (confirmed promptly in writing)
thereof on the same date that the Borrower was notified by a Bank pursuant to
Section 1.10(a)(ii) or (iii), cancel said Borrowing or convert the related
Notice of Borrowing into one requesting a Borrowing of Base Rate Loans, or (ii)
if the affected Eurodollar Loan is then outstanding, upon at least one Business
Day's notice to the Agent, require the affected Bank to convert each such
Eurodollar Loan into a Base Rate Loan, provided that if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant
to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective Date, the
adoption or effectiveness of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Bank or its parent corporation with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, in each case made subsequent to
the Effective Date, has or would have the effect of reducing by an amount
reasonably deemed by such Bank to be material to the rate of return on such
Bank's or its parent corporation's capital or assets as a consequence of such
Bank's commitments or obligations hereunder to a level below that which such
Bank or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Bank's or
its parent corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank or its parent corporation for such reduction. Each
Bank, upon deter-
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mining in good faith that any additional amounts will be payable pursuant to
this Section 1.10(c), will give prompt written notice thereof to the Borrower,
which notice shall set forth the detailed basis of the calculation of such
additional amounts, which basis must be reasonable, although the failure to give
any such notice shall not release or diminish any of the Borrower's obligations
to pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice.
(d) Notwithstanding any other provision of Section 1.10 or 2.06, no Bank
shall demand compensation for any increased cost or reduction or other amount
referred to above or in Section 2.06 if it shall not at the time be the general
policy or practice of such Bank to demand such compensation in similar
circumstances under comparable provisions of other credit agreements.
1.11 Compensation. (a) The Borrower shall compensate each Bank, upon its
written request (which request shall set forth the detailed basis for requesting
and the method of calculating such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans) which such Bank
may sustain: (i) if for any reason (other than a default by such Bank or the
Agent) a Borrowing of Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a)); (ii)
if any repayment or conversion of any of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period applicable thereto; (iii) if any
prepayment of any of its Eurodollar Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Eurodollar Loans when required by the
terms of this Agreement or (y) an election made pursuant to Section 1.10(b).
(b) Notwithstanding anything in this Agreement to the contrary, to the
extent any notice required by Section 1.10, 2.06 or 4.04 is given by any Bank
more than 90 days after such Bank obtained, or reasonably should have obtained,
knowledge of the occurrence of the event giving rise to the additional costs of
the type described in such Section, such Bank shall not be entitled to
compensation under Section 1.10, 2.06 or 4.04 for any amounts incurred or
accruing prior to the giving of such notice to the Borrower.
1.12 Change of Lending Office. Each Bank agrees that, upon the occurrence
of any event giving rise to the operation of Section 1.10(a)(ii) or (iii),
1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Bank) to designate another lending office for any Loans or Commitments
affected by such event, provided that such designation is made on such terms
that such Bank and its lending office suffer no economic,
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legal or regulatory disadvantage, with the object of avoiding the consequence of
the event giving rise to the operation of any such Section. Nothing in this
Section 1.12 shall affect or postpone any of the obligations of the Borrower or
the right of any Bank provided in Section 1.10 or 4.04.
1.13 Replacement of Banks. If any Bank is owed increased costs or
additional amounts, or the Borrower receives notice from any Bank requesting
increased costs or additional amounts, in each case under Section 1.10, 2.06 or
4.04, the Borrower shall have the right, unless such Bank has theretofore
removed or cured the conditions which resulted in the obligation to pay such
increased costs or additional amounts or agreed to waive and otherwise forego
any right it may have to any payments provided for under Sections 1.10, 2.06 and
4.04, to replace in its entirety such Bank (the 'Replaced Bank'), on prior
written notice to the Agent and such Replaced Bank, with one or more other
Eligible Transferee or Transferees (collectively, the 'Replacement Bank')
acceptable to the Agent (which acceptance shall not be unreasonably withheld),
provided that at the time of any replacement pursuant to this Section 1.13, the
Replaced Bank and the Replacement Bank shall enter into one or more Assignment
Agreements, substantially in the form of Exhibit L (appropriately completed),
pursuant to which (i) the Replacement Bank shall acquire all of the Commitment
and outstanding Loans of the Replaced Bank and, in connection therewith, shall
pay to the Replaced Bank in respect thereof an amount equal to the sum of (a) an
amount equal to the principal of, and all accrued but unpaid interest on, all
outstanding Loans of the Replaced Bank and (b) an amount equal to all accrued,
but theretofore unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01
and (ii) the Borrower shall pay to the Replaced Bank any other amounts payable
to the Replaced Bank under this Agreement (including, without limitation,
amounts payable under Section 1.10 and/or 1.11). Upon the execution of the
respective assignment documentation, the payment of amounts referred to in the
preceding sentence and, if so requested by the Replacement Bank, delivery to the
Replacement Bank of a Note executed by the Borrower, the Replacement Bank shall
become a Bank hereunder and the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions
herein set forth, the Borrower may request the Letter of Credit Issuer at any
time and from time to time on or after the Initial Borrowing Date and prior to
the Maturity Date to issue, for the account of the Borrower and in support of
(x) obligations of the Borrower and/or its Subsidiaries, contingent or
otherwise, incurred in the ordinary course of their respective businesses and/or
(y) such other obligations of the Borrower and/or its Subsidiaries to any other
Person that are reasonably acceptable to the Agent and the Letter of Credit
Issuer, and subject to and upon the terms and conditions herein set forth the
Letter of Credit Issuer
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agrees to issue from time to time, irrevocable letters of credit in such form as
may be approved by the Letter of Credit Issuer and the Agent (each such letter
of credit, and each letter of credit described in Section 2.07, a 'Letter of
Credit' and collectively, the 'Letters of Credit').
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued
the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to or
at the time of, the issuance of the relevant Letter of Credit) at such time,
would exceed either (x) the sum of (I) $20,000,000 plus (II) the aggregate
principal amount of Indebtedness permitted pursuant to Section 8.02(iv) and (v)
at such time or (y) when added to the sum of the aggregate principal amount of
all Revolving Loans and all Swingline Loans then outstanding, an amount equal to
the Adjusted Total Revolving Commitment at such time (after giving effect to any
reductions to the Total Revolving Commitment on such date) and (ii) each Letter
of Credit shall have an expiry date occurring not later than one year after such
Letter of Credit's date of issuance although any Letter of Credit supporting
obligations of the type described in Section 2.01(a)(y) may be renewable for
successive periods of up to 12 months, on terms reasonably acceptable to the
Agent and the Letter of Credit Issuer (it being understood and agreed that such
terms shall be deemed reasonably acceptable if such proposed renewal Letter of
Credit has terms substantially similar to the terms of the Letter of Credit
being renewed), and in no event shall any Letter of Credit have an expiry date
occurring later than the Business Day next preceding the Maturity Date.
(c) Notwithstanding the foregoing, in the event a Bank Default exists, the
Letter of Credit Issuer shall not be required to issue any Letter of Credit
unless the Letter of Credit Issuer has entered into arrangements satisfactory to
it and the Borrower to eliminate the Letter of Credit Issuer's risk with respect
to the participation in Letters of Credit of the Defaulting Bank or Banks,
including by cash collateralizing such Defaulting Bank's or Banks' Percentage of
the Letter of Credit Outstandings.
2.02 Minimum Stated Amount. The initial Stated Amount of each Letter of
Credit shall be an amount acceptable to the Agent and the Letter of Credit
Issuer.
2.03 Letter of Credit Requests; Notices of Issuance. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the Agent and
the Letter of Credit Issuer written notice (including by way of facsimile) in
the form of Exhibit C thereof prior to 1:00 P.M. (New York time) at least five
Business Days (or such shorter period as may be acceptable to the Letter of
Credit Issuer) prior to the proposed date of issuance (which shall be a Business
Day) (each a 'Letter of Credit Request'), which Letter of Credit Request shall
include an application for such Letter of Credit and any other documents that
the Letter of Credit Issuer customarily requires in connection therewith. The
Agent shall promptly notify each Bank of each Letter of Credit Request.
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(b) The Letter of Credit Issuer shall, on the date of each issuance of a
Letter of Credit by it, give the Agent, each Bank and the Borrower written
notice of the issuance of such Letter of Credit, accompanied by a copy to the
Agent of the Letter of Credit or Letters of Credit issued by it. The Letter of
Credit Issuer shall provide to the Agent a weekly summary describing each Letter
of Credit issued by such Letter of Credit Issuer and then outstanding.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby
agrees to reimburse the Letter of Credit Issuer, by making payment to the Agent
in immediately available funds at the Payment Office, for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an 'Unpaid Drawing')
immediately after, and in any event within one Business Day following the date
on which, the Letter of Credit Issuer notifies the Agent and the Borrower of
such payment or disbursement, with interest on the amount so paid or disbursed
by the Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M.
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but not including the date the Letter of Credit
Issuer is reimbursed therefor at a rate per annum which shall be the rate then
applicable to Base Rate Loans (plus an additional 2% per annum if not reimbursed
by the third Business Day after the date of such payment or disbursement), such
interest also to be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Letter of Credit Issuer, the
Agent or any Bank, including, without limitation, any defense based upon the
failure of any drawing to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
drawing, provided however that the Borrower shall not be obligated to reimburse
a Letter of Credit Issuer for any wrongful payment made by such Letter of Credit
Issuer under the Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit
Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the issuance by
the Letter of Credit Issuer of any Letter of Credit complying with the
provisions of Section 2.01(b) (which date shall be the Initial Borrowing Date in
the case of Existing Letters of Credit), such Letter of Credit Issuer shall be
deemed to have sold and transferred to each Bank, and each Bank (each a
'Participant') shall be deemed irrevocably and unconditionally to have purchased
and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Bank's Percentage,
in such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with respect
thereto (although Letter
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of Credit Fees shall be payable directly to the Agent for the account of the
Banks as provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any Facing Fees) and any security therefor or guaranty
pertaining thereto. Upon any change in the Commitments of the Banks pursuant to
Section 12.04(b), it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.05 to reflect the new Percentages
of the assigning and assignee Bank.
(b) In determining whether to pay under any Letter of Credit, the Letter of
Credit Issuer shall not have any obligation relative to the Participants other
than to determine that any documents required to be delivered under such Letter
of Credit have been delivered and that they appear to comply on their face with
the requirements of such Letter of Credit. Any action taken or omitted to be
taken by the Letter of Credit Issuer under or in connection with any Letter of
Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting
liability.
(c) In the event that the Letter of Credit Issuer makes any payment under
any Letter of Credit issued in compliance with Section 2.01(b) and the Borrower
shall not have reimbursed such amount in full to the Letter of Credit Issuer
pursuant to Section 2.04(a), the Letter of Credit Issuer shall promptly notify
the Agent, and the Agent shall promptly notify each Participant of such failure,
and each Participant shall promptly and unconditionally pay to the Agent for the
account of the Letter of Credit Issuer, the amount of such Participant's
Percentage of such payment in U.S. dollars and in same day funds, provided
however that no Participant shall be obligated to pay to the Agent its
Percentage of such unreimbursed amount for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer. If the Agent so notifies any Participant required to
fund a payment under a Letter of Credit prior to 11:00 A.M. (New York time) on
any Business Day, such Participant shall make available to the Agent for the
account of the Letter of Credit Issuer such Participant's Percentage of the
amount of such payment on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its Percentage of the amount of
such payment available to the Agent for the account of the Letter of Credit
Issuer, such Participant agrees to pay to the Agent for the account of the
Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Agent for the account of the Letter of Credit Issuer at the overnight Federal
Funds Effective Rate. The failure of any Participant to make available to the
Agent for the account of the Letter of Credit Issuer its Percentage of any
payment under any Letter of Credit shall not relieve any other Participant of
its obligation hereunder to make available to the Agent for the account of the
Letter of Credit Issuer its Percentage of any payment under any Letter of Credit
on the date required, as specified above, but no Participant shall be
responsible
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for the failure of any other Participant to make available to the Agent for the
account of the Letter of Credit Issuer such other Participant's Percentage of
any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Agent has received for the account of
the Letter of Credit Issuer any payments from the Participants pursuant to
clause (c) above, the Letter of Credit Issuer shall pay to the Agent and the
Agent shall promptly pay to each Participant which has paid its Percentage
thereof, in U.S. dollars and in same day funds, an amount equal to such
Participant's Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the Agent for
the account of the Letter of Credit Issuer with respect to Letters of Credit
shall be irrevocable and not subject to counterclaim, set-off or other defense
or any other qualification or exception whatsoever (other than as provided in
the proviso contained in Section 2.05(c)) and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of the Letter of Credit (or any Person for whom
any such transferee may be acting), the Agent, any Letter of Credit Issuer,
any Bank, or other Person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.06 Increased Costs. If after the Effective Date, the adoption or
effectiveness of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental
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Authority, central bank or comparable agency charged by law with the
interpretation or administration thereof, or compliance by the Letter of Credit
Issuer or any Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) by any such authority, central bank or
comparable agency (in each case made subsequent to the Effective Date) shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by the Letter
of Credit Issuer or such Bank's participation therein, or (ii) shall impose on
the Letter of Credit Issuer or any Bank any other conditions affecting this
Agreement, the Letter of Credit or such Bank's participation therein; and the
result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such Bank of issuing, maintaining or participating in the Letter of
Credit, or to reduce the amount of any sum received or receivable by the Letter
of Credit Issuer or such Bank hereunder by an amount reasonably deemed by the
Letter of Credit Issuer or such Bank to be material (other than any increased
cost or reduction in the amount received or receivable resulting from the
imposition of or a change in the rate of taxes or similar charges), then, upon
demand to the Borrower by the Letter of Credit Issuer or such Bank (a copy of
which notice shall be sent by the Letter of Credit Issuer or such Bank to the
Agent), the Borrower shall pay to the Letter of Credit Issuer or such Bank such
additional amount or amounts as will compensate any the Letter of Credit Issuer
or such Bank for such increased cost or reduction. A certificate submitted to
the Borrower by the Letter of Credit Issuer or any Bank, as the case may be (a
copy of which certificate shall be sent by the Letter of Credit Issuer or such
Bank to the Agent), setting forth the detailed basis for the determination of
such additional amount or amounts necessary to compensate the Letter of Credit
Issuer or such Bank as aforesaid, which basis must be reasonable, shall be
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section 2.06.
2.07 Existing Letters of Credit. Annex III hereto contains a description of
all letters of credit issued pursuant to the Existing Borrower Credit Agreement
and the Existing Trico Credit Agreement, as the case may be, outstanding on the
Effective Date. Each such letter of credit, including any extension thereof
issued by the Letter of Credit Issuer in its sole discretion (each, an 'Existing
Letter of Credit'), shall constitute a 'Letter of Credit' for all purposes of
this Agreement, issued, for purposes of Section 2.05(a), on the Initial
Borrowing Date. The Borrower, the Agent and the Banks hereby agree that, from
and after the Initial Borrowing Date, the terms of this Agreement shall apply to
the Existing Letters of Credit and that the terms of this Agreement shall
supersede the Existing Borrower Credit Agreement and the Existing Trico Credit
Agreement, as the case may be, with respect to the Existing Letters of Credit.
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SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the Agent a Commitment
commission ('Commitment Commission') for the account of each Bank for the period
from and including the Allocation Date to but not including the date the Total
Commitment has been terminated, computed at a rate for each day equal to the
Applicable Percentage for such day on such Bank's then Unutilized Commitment.
Such Commitment Commission shall be due and payable in arrears on the Initial
Borrowing Date and, thereafter, on the last Business Day of each March, June,
September and December and on the date upon which the Total Commitment is
terminated.
(b) The Borrower agrees to pay to the Agent for the account of each Bank
pro rata on the basis of its Percentage, a fee in respect of each Letter of
Credit (the 'Letter of Credit Fee') computed at the rate equal to the Applicable
Percentage then in effect for Eurodollar Loans on the average daily Stated
Amount of such Letter of Credit. Accrued Letter of Credit Fees shall be due and
payable quarterly in arrears on the last Business Day of each March, June,
September and December of each year and on the date upon which the Total
Revolving Commitment is terminated.
(c) The Borrower agrees to pay to the Letter of Credit Issuer a fee in
respect of each Letter of Credit (the 'Facing Fee') computed at the rate of 1/4
of 1% per annum on the average daily Stated Amount of such Letter of Credit.
Accrued Facing Fees shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December of each year and on the
date upon which the Total Revolving Commitment is terminated.
(d) The Borrower agrees to pay directly to the Letter of Credit Issuer upon
each issuance of, drawing under, and/or amendment of, a Letter of Credit such
amount as the Borrower and the Letter of Credit Issuer shall agree as an
administrative charge.
(e) The Borrower shall pay to the Agent (x) on the Initial Borrowing Date
for its own account and/or for distribution to the Banks such fees as heretofore
agreed by the Borrower and the Agent and (y) for its own account such other fees
as may be agreed to from time to time between the Borrower and the Agent, when
and as due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least three Business Days'
prior written notice (or telephonic notice confirmed in writing) to the Agent at
its Notice Office (which notice the Agent shall promptly transmit to each of the
Banks), the Borrower shall have the right, without premium or penalty, to
terminate or partially reduce
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the Total Unutilized Revolving Commitment, provided that (x) any such
termination shall apply to proportionately and permanently reduce the Revolving
Commitment of each of the Banks with such a Commitment and (y) any partial
reduction pursuant to this Section 3.02 shall be in the amount of at least
$1,000,000 and in an integral multiple of $100,000.
3.03 Mandatory Adjustments of Commitments, etc. (a) The Total Commitment
(and the Term Commitment, Revolving Commitment and Swingline Commitment of each
Bank) shall terminate on the Expiration Date unless the Initial Borrowing Date
has occurred on or before such date.
(b) The Total Term Commitment shall: (i) be reduced on each date on which
Term Loans are incurred in an amount equal to the aggregate principal amount of
Term Loans incurred on such date; and (ii) terminate in its entirety on the
Merger Borrowing Date (after giving effect to the making of any Term Loans on or
prior to such date).
(c) The Total Term Commitment shall be reduced on each date prior to the
Merger Borrowing Date on which such reduction is provided for in Section
4.02(A)(c) or (d).
(d) On each day on which the Term Loans are required to be repaid pursuant
to Section 4.02(A)(c), (d), (e) or (f), the Total Revolving Commitment shall be
reduced by the amount, if any, equal to (x) the aggregate principal amount of
Term Loans that would have been repaid on such date if an unlimited amount of
Term Loans were then outstanding less (y) the aggregate principal amount of Term
Loans actually required to be so repaid.
(e) The Total Revolving Commitment (and the Revolving Commitment of each
Bank) shall terminate on the earlier of the Maturity Date and the date on which
any Change of Control occurs.
(f) The Swingline Commitment shall terminate on the Swingline Expiry Date.
(g) Each partial reduction of the Total Term Commitment or Total Revolving
Commitment provided for in this Section 3.03 shall apply pro rata to the Term
Commitment (if any) or Revolving Commitment (if any), as the case may be, of
each Bank.
SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right to prepay
Loans, in whole or in part, without premium or penalty, from time to time on the
following terms and conditions: (i) the Borrower shall give the Agent at the
Payment Office written
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notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay the Loans, whether such Loans are Term Loans, Revolving Loans or
Swingline Loans, the amount of such prepayment and (in the case of Eurodollar
Loans) the specific Borrowing(s) pursuant to which made, which notice shall be
received by the Agent by 12:00 Noon (New York time) one Business Day prior to
the date of such prepayment (and which notice shall promptly be transmitted by
the Agent to each of the Banks); (ii) each partial prepayment of any Borrowing
shall be in an aggregate principal amount of at least $1,000,000 and in an
integral multiple of $100,000 (or $100,000 in the case of Swingline Loans),
provided that no partial prepayment of Eurodollar Loans made pursuant to a
Borrowing shall reduce the aggregate principal amount of the Loans outstanding
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto; (iii) each prepayment in respect of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans, provided that at the
Borrower's election in connection with any prepayment of Revolving Loans
pursuant to this Section 4.01, such prepayment shall not be applied to any
Revolving Loans of a Defaulting Bank at any time when the aggregate amount of
Revolving Loans of any Non-Defaulting Bank exceeds such Non-Defaulting Bank's
Percentage of all Revolving Loans; and (iv) each prepayment of Term Loans
pursuant to this Section 4.01 shall reduce the then remaining Scheduled
Repayments on a pro rata basis (based upon the then remaining principal amount
of each such Scheduled Repayment).
4.02 Mandatory Prepayments.
(A) Requirements:
(a) If on any date (after giving effect to any other repayments or
prepayments on such date) the sum of (i) the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Banks and Swingline Loans plus
(ii) the aggregate amount of Letter of Credit Outstandings exceeds the Adjusted
Total Revolving Commitment as then in effect, the Borrower shall repay on such
date that principal amount of Swingline Loans and, after Swingline Loans have
been paid in full, Revolving Loans and, after Revolving Loans have been paid in
full, Unpaid Drawings, in an aggregate amount equal to such excess. If, after
giving effect to the prepayment of all outstanding Swingline Loans, Revolving
Loans and Unpaid Drawings, the aggregate amount of Letter of Credit Outstandings
exceeds the Adjusted Total Revolving Commitment as then in effect, the Borrower
shall pay to the Agent an amount in cash and/or Cash Equivalents equal to such
excess and the Agent shall hold such payment for the benefit of the Borrower as
security for the obligations of the Borrower hereunder pursuant to a cash
collateral agreement to be entered into in form and substance reasonably
satisfactory to the Agent (which shall permit certain investments in Cash
Equivalents reasonably satisfactory to the Agent and the Borrower, until the
proceeds are applied to the secured obligations).
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<PAGE>
(b) On each date set forth below the Borrower shall be required to repay
the principal amount of Term Loans as is set forth opposite such date (each such
repayment, a 'Scheduled Repayment'):
<TABLE>
<CAPTION>
Scheduled Repayment Date Amount
------------------------ ------
<S> <C>
June 30, 1995 ......................................... $2,500,000
September 30, 1995 .................................... $2,500,000
December 31, 1995 ..................................... $2,500,000
March 31, 1996 ........................................ $5,625,000
June 30, 1996 ......................................... $5,625,000
September 30, 1996 .................................... $5,625,000
December 31, 1996 ..................................... $5,625,000
March 31, 1997 ........................................ $7,500,000
June 30, 1997 ......................................... $7,500,000
September 30, 1997 .................................... $7,500,000
December 31, 1997 ..................................... $7,500,000
March 31, 1998 ........................................ $8,750,000
June 30, 1998 ......................................... $8,750,000
September 30, 1998 .................................... $8,750,000
December 31, 1998 ..................................... $8,750,000
March 31, 1999 ........................................ $8,750,000
June 30, 1999 ......................................... $8,750,000
September 30, 1999 .................................... $8,750,000
December 31, 1999 ..................................... $8,750,000
March 31, 2000 ........................................ $8,750,000
June 30, 2000 ......................................... $8,750,000
September 30, 2000 .................................... $8,750,000
December 31, 2000 ..................................... $8,750,000
March 31, 2001 ........................................ $8,750,000
June 30, 2001 ......................................... $8,750,000
September 30, 2001 .................................... $8,750,000
Maturity Date ......................................... $8,750,000
</TABLE>
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<PAGE>
(c) On the third Business Day following the date of receipt thereof by the
Borrower and/or any of its Subsidiaries of the Cash Proceeds from any Asset Sale
(other than the Brentford Sale), an amount equal to 100% of the Net Cash
Proceeds then received from such Asset Sale shall be applied as a mandatory
repayment of principal of the then outstanding Term Loans (or, if the Merger
Borrowing Date has not yet occurred, as a mandatory reduction to the Total Term
Commitment to the extent thereof), provided that up to an aggregate $4,000,000
of Net Cash Proceeds from Asset Sales during any fiscal year of the Borrower
shall not be required to be so utilized to the extent the Borrower elects, as
hereinafter provided, to cause such Net Cash Proceeds to be reinvested in
Reinvestment Assets (a 'Reinvestment Election'), provided further that no such
repayment (or reduction) pursuant to this Section 4.02 (A)(c) will be required
to be made until the aggregate Net Cash Proceeds required to be so applied in
any fiscal year and not yet so applied in such fiscal year equals $1,000,000, at
which time all such Net Cash Proceeds shall be so applied. The Borrower may
exercise its Reinvestment Election (within the parameters specified in the
preceding sentence) with respect to an Asset Sale if the Borrower delivers a
Reinvestment Notice to the Agent within a reasonable time period following the
date of the consummation of the respective Asset Sale, with such Reinvestment
Election being effective with respect to the Net Cash Proceeds of such Asset
Sale equal to the Anticipated Reinvestment Amount specified in such Reinvestment
Notice.
(d) On the date of the receipt thereof by the Borrower and/or any of its
Subsidiaries, an amount equal to 100% of the cash proceeds (net of underwriting
discounts and commissions, other banking and investment banking fees, attorneys'
and accountants' fees and other customary fees and other costs associated
therewith) of the incurrence of Indebtedness by the Borrower and/or any of its
Subsidiaries (other than Indebtedness permitted by Section 8.02 as is in effect
on the Effective Date), shall be applied as a mandatory repayment of principal
of the then outstanding Term Loans (or, if the Merger Borrowing Date has not yet
occurred, as a mandatory reduction to the Total Term Commitment to the extent
thereof).
(e) On each date which is 90 days after the last day of each fiscal year of
the Borrower (commencing with the fiscal year ending on December 31, 1995), an
amount equal to the Excess Cash Flow Percentage of Excess Cash Flow of the
Borrower and its Subsidiaries for the fiscal year then last ended shall be
applied as a mandatory repayment of principal of the then outstanding Term
Loans.
(f) On the Reinvestment Prepayment Date with respect to a Reinvestment
Election, an amount equal to the Reinvestment Prepayment Amount, if any, for
such Reinvestment Election shall be applied as a repayment of the principal
amount of the then outstanding Term Loans.
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<PAGE>
(g) On the date of any Change of Control, the outstanding principal amount
of all Loans, if any, shall be due and payable in full.
(B) Application:
(a) Each mandatory repayment of Term Loans required to be made pursuant to
Section 4.02(A)(c), (d), (e) or (f) shall be applied to the repayment of the
then remaining Scheduled Repayments on a pro rata basis (based upon the then
remaining principal amount of each such Scheduled Repayment).
(b) With respect to each repayment of Loans required by this Section 4.02,
the Borrower may designate the Types of Loans which are to be repaid and the
specific Borrowing(s) under the affected Facility pursuant to which made,
provided that (i) the Borrower shall first so designate all Base Rate Loans and
Eurodollar Loans with Interest Periods ending on the date of repayment prior to
designating any other Eurodollar Loans and (ii) each prepayment of any Loans
made pursuant to a Borrowing shall be applied pro rata among such Loans,
provided that no repayment pursuant to Section 4.02(A) (a) shall be applied to
any Revolving Loans of a Defaulting Bank at any time when the aggregate amount
of the Revolving Loans of any Non-Defaulting Bank exceeds such Non-Defaulting
Bank's Percentage of Revolving Loans then outstanding. If the Borrower is
required by this Section 4.02 to repay any Eurodollar Loans and such prepayment
will result in the Borrower being required to pay breakage costs under Section
1.11 (any such Eurodollar Loans, 'Affected Loans'), the Borrower may elect, by
notice to the Agent, to have the provisions of the following sentence be
applicable. At the time any Affected Loans are otherwise required to be prepaid,
the Borrower may elect to deposit 100% (or such lesser percentage elected by the
Borrower) of the principal amounts that otherwise would have been paid in
respect of the Affected Loans with the Agent to be held as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance reasonably satisfactory to the Agent, with
such cash collateral to be released from such cash collateral account (and
applied to repay the principal amount of such Loans) upon each occurrence
thereafter of the last day of an Interest Period applicable to the relevant
Loans (or such earlier date or dates as shall be requested by the Borrower), the
amount to be so released and applied on the last day of each Interest Period to
be the amount of the relevant Loans to which such Interest Period applies (or,
if less, the amount remaining in such cash collateral account). In the absence
of a designation by the Borrower as described in the preceding sentence, the
Agent shall, subject to the above, make such designation in its sole discretion
with a view, but no obligation, to minimize breakage costs owing under Section
1.11.
4.03 Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement shall be made to the Agent for the
ratable (based on its pro rata share) account of the Banks entitled thereto, not
later than 1:00 P.M.
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<PAGE>
(New York time) on the date when due and shall be made in immediately available
funds and in lawful money of the United States of America at the Payment Office,
it being understood that written notice by the Borrower to the Agent to make a
payment from the funds in the Borrower's account at the Payment Office shall
constitute the making of such payment to the extent of such funds held in such
account. Any payments under this Agreement which are made later than 1:00 P.M.
(New York time) shall be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder, under
any Note or any other Credit Document, will be made without setoff, counterclaim
or other defense. Except as provided for in Section 4.04(b), all such payments
will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any Governmental
Authority (but excluding any tax imposed on or measured by the net income (or
any franchise tax measured by or imposed on net income) of a Bank pursuant to
the laws of the jurisdiction (or any political subdivision or taxing authority
thereof or therein) under which such Bank is organized or in which the principal
office or applicable lending office of such Bank is located or under the laws of
any political subdivision or taxing authority of any such jurisdiction in which
the principal office or applicable lending office of such Bank is located) and
all interest, penalties or similar liabilities with respect thereto
(collectively, 'Taxes'). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes and such additional amounts as may
be necessary so that every payment of all amounts due hereunder, under any Note
or under any other Credit Document, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note or in such other Credit Document. The Borrower will furnish to the
Agent within 45 days after the date the payment of any Taxes, or any withholding
or deduction on account thereof, is due pursuant to applicable law certified
copies of tax receipts, or other evidence satisfactory to the Bank, evidencing
such payment by the Borrower. The Borrower will indemnify and hold harmless the
Agent and each Bank, and reimburse the Agent or such Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid or withheld
by such Bank.
(b) Each Bank which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes agrees to
provide to the Borrower on or prior to the Effective Date, or in the case of a
Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.12 or Section 12.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such
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<PAGE>
assignment or transfer and such Bank is in compliance with the provisions of
this Section 4.04(b)), on the date of such assignment or transfer to such Bank,
(i) two accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001 (or successor forms) certifying to such Bank's entitlement to
a complete exemption from United States withholding tax with respect to payments
to be made under this Agreement, any Note or any other Credit Document, or (ii)
if the Bank is not a 'bank' within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate representing that such non-U.S.
Bank is not a bank for purposes of Section 881(c) of the Code, is not a 10%
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code) (any such certificate, a
'Section 4.04(b)(ii) Certificate') and (y) two accurate and complete original
signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Bank's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement, any Note or any other Credit Document. In addition, each Bank agrees
that from time to time after the Effective Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to the Borrower two new accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001,
or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement, any Note or any
other Credit Document, or it shall immediately notify the Borrower and the Agent
of its inability to deliver any such Form or Certificate. Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or other
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for United
States federal income tax purposes and which has not provided to the Borrower
such forms that establish a complete exemption from such deduction or
withholding and (y) the Borrower shall not be obligated pursuant to Section
4.04(a) hereof to pay a Bank in respect of income or similar taxes imposed by
the United States or any additional amounts with respect thereto if such Bank
has not provided to the Borrower the Internal Revenue Service forms required to
be provided to the Borrower to establish a complete exemption from U.S.
withholding (without regard to whether such Bank is unable to provide such
forms). Notwithstanding anything to the contrary contained in the preceding
sentence, or elsewhere in this Section 4.04 the Borrower agrees to pay
additional amounts and indemnify each Bank in the manner set forth in Section
4.04(a) in respect of any Taxes deducted or withheld by it as described in the
previous sentence as a result of any changes after the Effective Date in any
applicable law, treaty, governmental rule, regulation,
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<PAGE>
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of income or similar Taxes.
(c) If a Bank shall become aware that it is entitled to claim a refund from
a Governmental Authority in respect of Taxes to which it has been indemnified by
the Borrower, or with respect to which the Borrower has paid additional amounts,
pursuant to this Section 4.04, it shall promptly notify the Borrower of the
availability of such refund claim and shall, within 60 days after receipt of a
request by the Borrower, make a claim to such Governmental Authority for such
refund at the Borrower's expense. If a Bank receives a refund (including
pursuant to a claim for refund made pursuant to the preceding sentence) in
respect of any Taxes to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section 4.04, it shall within 30 days from the date of such receipt pay over
such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 4.04 with respect
to the Taxes or other taxes giving rise to such refund), net of all
out-of-pocket expenses of such Bank and without interest (other than interest
paid by the relevant Governmental Authority with respect to such refund);
provided however that the Borrower, upon the request of such Bank, agrees to
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to such Bank in the event such Bank is required to repay such refund to
such Governmental Authority.
(d) Any Bank claiming any indemnity payment or additional amounts payable
pursuant to this Section 4.04 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Borrower or to change the jurisdiction of
its applicable lending office if the making of such a filing or change would
avoid the need for or reduce the amount of any such indemnity payment or
additional amounts that may thereafter accrue and would not be otherwise
disadvantageous to such Bank in the sole determination of such Bank).
(e) If the Borrower pays any amount under this Section 4.04 to a Bank and
such Bank determines in its sole discretion that it has received or realized in
connection therewith any credit against its Tax liabilities in or with respect
to the taxable year in which the additional amount is paid, such Bank shall pay
to the Borrower an amount that the Bank shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Bank in such
year as a consequence of such credit.
SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to Initial Borrowing Date. The obligation of the
Banks to make Loans hereunder on the Initial Borrowing Date and the obligation
of a Letter of Credit Issuer to issue Letters of Credit hereunder, is subject to
the satisfaction of each of the following conditions at such time:
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<PAGE>
(a) Effectiveness; Notes. On or prior to the Tender Offer Closing
Date, (i) the Effective Date shall have occurred and (ii) there shall have
been delivered to the Agent for the account of each Bank the appropriate
Term Note, Revolving Note and/or Swingline Note executed by the Borrower,
in each case, in the amount, maturity and as otherwise provided herein.
(b) Opinions of Counsel. On the Tender Offer Closing Date, the Agent
shall have received opinions, addressed to the Agent, the Collateral Agent
and each of the Banks and dated the Tender Offer Closing Date, from (i)
Cravath, Swaine & Moore, special counsel to the Borrower, which opinion
shall cover the matters covered in Exhibit D-1 hereto, (ii) Anthony W.
Graziano, Jr., Esq., General Counsel of the Borrower, which opinion shall
cover the matters contained in Exhibit D-2 hereto, (iii) White & Case,
special counsel to the Banks, which opinion shall cover the matters
contained in Exhibit D-3 hereto and (iv) from local counsel satisfactory to
the Agent as the Agent may request, which opinions shall cover the
perfection of the security interests granted pursuant to the Security
Documents and such other matters incident to the transactions contemplated
herein as the Agent may reasonably request and shall be in form and
substance reasonably satisfactory to the Agent.
(c) Corporate Proceedings. (i) On the Tender Offer Closing Date, the
Agent shall have received from the Borrower a certificate, dated the Tender
Offer Closing Date, signed by the President or any Vice-President of the
Borrower in the form of Exhibit E hereto with appropriate insertions and
deletions, together with (x) copies of the articles of incorporation, any
certificate of designation, the by-laws, or other organizational documents
of each Credit Party, (y) the resolutions, or such other administrative
approval, of each Credit Party referred to in such certificate, which shall
be reasonably satisfactory to the Agent and (z) a statement that all of the
applicable conditions set forth in Sections 5.01(g), (h), (i), (j), (q) and
5.03 exist as of such date.
(ii) On the Tender Offer Closing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Transaction
Documents shall be reasonably satisfactory in form and substance to the
Agent, and the Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates
and any other records of corporate proceedings and governmental approvals,
if any, which the Agent may have reasonably requested in connection
therewith, such documents and papers, where appropriate, to be certified by
proper corporate or governmental authorities.
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<PAGE>
(d) Plans; Collective Bargaining Agreements; Existing Indebtedness Agree-
ments; Shareholders' Agreements; Management Agreements; Employment Agree- ments;
Tax Sharing Agreements. On or prior to the Tender Offer Closing Date, there
shall have been delivered to the Agent copies, certified as true and correct by
an appropriate officer of the Borrower of:
(i) any Plans, and for each Plan (x) that is a 'single-employer plan'
(as defined in Section 4001(a)(15) of ERISA) the most recently completed
actuarial valuation prepared therefor by such Plan's regular enrolled
actuary and the Schedule B, 'Actuarial Information' to the IRS Form 5500
(Annual Report) most recently filed with the Internal Revenue Service and
(y) that is a 'multiemployer plan' (as defined in Section 4001(a)(3) of
ERISA), each of the documents referred to in clause (x) either in the
possession of the Borrower or any of its Subsidiaries (including Trico and
its Subsidiaries), or any ERISA Affiliate or reasonably available thereto
from the sponsor or trustees of such Plan;
(ii) any collective bargaining agreements or any other similar
agreement or arrangements covering the employees of the Borrower or any of
its Subsidiaries (including Trico and its Subsidiaries) (collectively, the
'Collective Bargaining Agreements');
(iii) all agreements evidencing or relating to the Existing
Indebtedness (the 'Existing Indebtedness Agreements');
(iv) all agreements entered into by the Borrower or any of its
Subsidiaries (including Trico and its Subsidiaries) governing the terms and
relative rights of its capital stock, and any agreements entered into by
members or shareholders of the Borrower or any such Subsidiary with respect
to their capital stock (collectively, the 'Shareholders' Agreements');
(v) any agreement with respect to, the management of the Borrower or
any of its Subsidiaries (including Trico and its Subsidiaries)
(collectively, the 'Management Agreements');
(vi) any material employment agreements entered into by the Borrower
or any of its Subsidiaries (including Trico and its Subsidiaries)
(collectively, the 'Employment Agreements'); and
(vii) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower and/or any Subsidiary (including Trico and its
Subsidiaries) of the Borrower (collectively, the 'Tax Sharing Agreements');
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<PAGE>
all of which Plans, Collective Bargaining Agreements, Existing Indebtedness
Agreements, Shareholders' Agreements, Management Agreements, Employment
Agreements and Tax Sharing Agreements shall be in form and substance
satisfactory to the Agent. The Agent acknowledges that, as of the Effective
Date, it is satisfied with the form and substance of each Plan, Collective
Bargaining Agreement, Existing Indebtedness Agreement, Shareholders'
Agreement, Management Agreement, Employment Agreement and Tax Sharing
Agreement, as the case may be, delivered to it prior to the Effective Date
in the form so delivered.
(e) Adverse Change, etc. From October 20, 1994 to the Tender Offer
Closing Date, nothing shall have occurred (and neither the Banks nor the
Agent shall have become aware of any facts or conditions not previously
known) which the Agent or the Required Banks shall reasonably determine (a)
has, or is reasonably likely to have, a material adverse effect on the
rights or remedies of the Banks or the Agent under this Agreement or any
other Credit Document, or on the ability of any Credit Party to perform its
obligations to them, or (b) has, or is reasonably likely to have, a
Material Adverse Effect.
(f) Litigation. No actions, suits or proceedings shall be pending or,
to the knowledge of the Borrower, threatened against any Credit Party on
the Tender Offer Closing Date (a) with respect to this Agreement or any
other Credit Document, (b) which could reasonably be expected to a have a
material adverse effect with respect to the Acquisition or (c) which the
Agent or the Required Banks shall determine could reasonably be expected to
(i) have a Material Adverse Effect or (ii) have a material adverse effect
on the rights or remedies of the Banks hereunder or under any other Credit
Document or on the ability of any Credit Party to perform its respective
obligations to the Banks hereunder or under any other Credit Document.
(g) Approvals. On the Tender Offer Closing Date, all necessary
governmental and material third party approvals in connection with the
transactions contemplated by the Credit Documents and the other existing
Transaction Documents and otherwise referred to herein or therein shall
have been obtained and remain in effect, and all applicable waiting periods
shall have expired without any action being taken by any competent
authority which restrains or prevents such transactions or imposes, in the
reasonable judgment of the Required Banks or the Agent, materially adverse
conditions upon the consummation of such transactions.
(h) Tender Offer Documents. On or prior to the Tender Offer Closing
Date, there shall have been delivered to the Agent true and correct copies
of the Tender Offer Documents and the Additional Tender Offer Documents
(which Additional Tender Offer Documents, other than any Additional Tender
Offer Document
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<PAGE>
consisting solely of an amendment extending the expiration date of the
Tender Offer, shall be reasonably satisfactory to the Agent), and each of
the conditions to purchase contained in the Offer to Purchase shall have
been satisfied to the satisfaction of, or if applicable, waived with the
consent of the Agent (as if it were Acq. Sub), which consent shall not be
unreasonably withheld. The Agent acknowledges that, as of the Effective
Date, it is satisfied with the Tender Offer Documents delivered to it prior
to the Effective Date.
(i) Tender of Shares of Trico; Control. On the Initial Borrowing Date,
(i) the Tender Offer Closing Date shall have occurred, (ii) there shall
have been validly tendered to Acq. Sub and not withdrawn (and/or acquired
pursuant to the Stockholders Agreement) the number of Shares that satisfies
the 'Minimum Condition' as defined in the Offer to Purchase and the price
per Share paid pursuant to the Offer to Purchase shall not exceed the
Maximum Price Per Share and (iii) such number of Shares shall have been
validly tendered to Acq. Sub, free and clear of all Liens and restrictions
to purchase imposed by applicable law or otherwise and such Shares shall
not have been validly withdrawn and shall be available for purchase in
accordance with the terms and conditions set forth in the Offer to
Purchase. After giving effect to the consummation of the purchase of the
Shares pursuant to the Tender Offer or the Stockholders Agreement, Acq. Sub
shall own and control that number of Shares of Trico as shall be necessary
to permit Acq. Sub to approve the Merger without the affirmative vote or
approval of any other shareholders, and there shall be no applicable
statute or other restriction which would prohibit, materially restrict or
materially delay the consummation of the Merger or which would be
reasonably likely to make the consummation of the Merger economically
unfeasible.
(j) Proxy Materials. On or prior to the Tender Offer Closing Date,
there shall have been delivered to the Agent true and correct copies of all
Proxy Materials, if any, and such Proxy Materials shall be reasonably
satisfactory in form and substance to the Agent. The Agent acknowledges
that, as of the Effective Date, it is satisfied with the Proxy Materials
delivered to it prior to the Effective Date.
(k) Subsidiary Guaranty. On the Tender Offer Closing Date, each
Initial Subsidiary Guarantor shall have duly authorized, executed and
delivered a Guaranty in the form of Exhibit F hereto (as modified, amended
or supplemented from time to time in accordance with the terms hereof and
thereof, the 'Subsidiary Guaranty'), and the Subsidiary Guaranty shall be
in full force and effect.
(l) Security Documents. (i) On the Tender Offer Closing Date, the
Borrower and each Initial Subsidiary Guarantor (other than Acq. Sub) shall
have duly authorized, executed and delivered a Pledge Agreement
substantially in the
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form of Exhibit G hereto (as modified, amended or supplemented from time to
time in accordance with the terms thereof and hereof, the 'Pledge
Agreement'), and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the certificates representing the Pledged Securities
referred to therein, endorsed in blank or accompanied by executed and
undated stock powers, and the Pledge Agreement shall be in full force and
effect.
(ii) On the Tender Offer Closing Date, the Borrower and each Initial
Subsidiary Guarantor (other than Acq. Sub) shall have duly authorized,
executed and delivered a Security Agreement substantially in the form of
Exhibit H hereto (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the 'Security Agreement')
covering all of such Person's present and future Security Agreement
Collateral, in each case together with:
(A) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may
be reasonably necessary to perfect the security interests purported to
be created by the Security Agreement;
(B) copies of Requests for Information or copies (Form UCC-11),
or equivalent reports, each of recent date listing all effective
financing statements that name each such Person as debtor and that are
filed in the jurisdictions referred to in clause (A), together with
copies of such financing statements (none of which shall cover the
Collateral except (x) those with respect to which appropriate
termination statements executed by the secured lender thereunder have
been delivered to the Collateral Agent and (y) to the extent
evidencing Liens permitted pursuant to Section 8.01(iii) and/or
(viii));
(C) evidence of the completion of all recordings and filings of,
or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of the Collateral Agent, desirable to perfect
the security interests intended to be created thereunder or other
evidence reasonably satisfactory to the Collateral Agent that such
recordings and filings shall be completed promptly after the Tender
Offer Closing Date; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken or will be taken promptly after the Initial
Borrowing Date.
(iii) On the Tender Offer Closing Date, the Agent shall have received:
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(A) fully executed counterparts of deeds of trust, mortgages or
amendments to such documents and similar documents in each case in
form and substance reasonably satisfactory to the Collateral Agent
(each a 'Mortgage' and collectively, the 'Mortgages') covering all the
Mortgaged Properties, and arrangements reasonably satisfactory to the
Agent shall be in place to provide that counterparts of such Mortgages
shall be recorded on the Tender Offer Closing Date or promptly
thereafter in all places to the extent necessary or desirable, in the
reasonable judgment of the Collateral Agent, effectively to create a
valid and enforceable first priority Lien, subject only to Liens
permitted pursuant to Section 8.01(iii), (viii), (ix) and/or (x), on
each Mortgaged Property in favor of the Collateral Agent (or such
other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors;
(B) mortgagee title insurance policies on each Mortgaged Property
issued by First American Title Insurance Company or other title
insurers reasonably satisfactory to the Collateral Agent (the
'Mortgage Policies') in amounts satisfactory to the Agent assuring the
Collateral Agent that the Mortgages on such Mortgaged Properties are
valid and enforceable first priority mortgage liens on the respective
Mortgaged Properties, free and clear of all defects and encumbrances
except Permitted Liens and such Mortgage Policies shall otherwise be
in form and substance reasonably satisfactory to the Agent and shall
include, as reasonably appropriate and where available, an endorsement
for future advances under this Agreement and the Notes and for any
other matter that the Collateral Agent in its reasonable discretion
may reasonably request, when practicable, shall not include an
exception for mechanics' liens, and shall provide for affirmative
insurance and such reinsurance as the Collateral Agent in its
discretion may reasonably request; and
(C) a survey and, to the extent requested by the Collateral
Agent, an affidavit of no change relating to any such survey, in each
case in form and substance reasonably satisfactory to the Collateral
Agent, for each Mortgaged Property, certified by a licensed
professional surveyor reasonably satisfactory to the Collateral Agent.
(m) Solvency. On the Tender Offer Closing Date, the Agent shall have
received from the chief financial officer of the Borrower a certificate in the
form of Exhibit I hereto, expressing opinions of value and other appropriate
facts or information regarding the solvency of the Borrower and of the Borrower
and its Subsidiaries (including Trico and its Subsidiaries) taken as a whole.
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(n) Insurance Policies. On the Tender Offer Closing Date, the Agent shall
have received evidence of insurance complying with the requirements of Section
7.03 for the business and properties of the Borrower and its Subsidiaries
(including Trico and its Subsidiaries), in form and substance satisfactory to
the Agent and, with respect to all casualty insurance, naming the Collateral
Agent as an additional insured and loss payee.
(o) Fees. On or prior to the Initial Borrowing Date, the Borrower shall
have paid to the Agent and the Banks all Fees and expenses agreed upon by such
parties to be paid on or prior to such date.
(p) Consent Letter. On the Tender Offer Closing Date, the Agent shall have
received a letter from CT Corporation System, presently located at 1633
Broadway, New York, New York 10019, in the form of Exhibit J hereto indicating
its consent to its appointment by the Borrower and each Initial Subsidiary
Guarantor as their agent to receive service of process.
(q) Existing Borrower Credit Agreement; Existing Trico Credit Facilities.
(i)(A) On the Initial Borrowing Date, the commitments under the Existing
Borrower Credit Agreement shall have been terminated, all loans thereunder shall
have been repaid in full, together with interest thereon, all letters of credit
issued thereunder shall have been terminated or incorporated hereunder as, or
supported hereunder by, Letters of Credit, and all other amounts owing pursuant
to the Existing Borrower Credit Agreement shall have been repaid in full, and
the Agent shall have received evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in this Section 5.01(q)(i)(A) have
been satisfied at such time.
(B) On the Initial Borrowing Date, the creditors under the
Existing Borrower Credit Agreement shall have terminated and released
all Liens on the capital stock of and assets owned by the Borrower and
its Subsidiaries incurred in connection with the Existing Borrower
Credit Agreement, and the Agent shall have received all such releases
as may have been reasonably requested by the Agent, which releases
shall be in form and substance reasonably satisfactory to the Agent.
(ii)(A) On the Initial Borrowing Date, the commitments under
the Existing Trico Credit Facilities shall have been terminated, all
loans thereunder shall have been repaid in full, together with interest
thereon, all letters of credit issued thereunder shall have been
terminated or incorporated hereunder as, or supported hereunder by,
Letters of Credit, and all other amounts owing pursuant to the Existing
Trico Credit Agreement shall have been repaid in full, and the Agent
shall
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have received evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in this Section
5.01(ii)(A) have been satisfied at such time.
(B) On the Initial Borrowing Date, (I) the creditors under the
Existing Trico Credit Agreement shall have terminated and released all
Liens on the capital stock of and assets owned by Trico and its
Subsidiaries incurred in connection with the Existing Trico Credit
Agreement and (II) the Agent shall have received evidence satisfactory
to it that the creditors under the Existing Trico Credit Facilities
(other than the Existing Trico Credit Agreement) will terminate and
release all Liens on the assets owned by Trico and its Subsidiaries
incurred in connection with each such Existing Trico Credit Facility
within 2 Business Days after the Initial Borrowing Date, and in each
case the Agent shall have received all such releases as may have been
reasonably requested by the Agent, which releases shall be in form and
substance reasonably satisfactory to the Agent.
(r) Certain Share Purchase Loans. Notwithstanding the foregoing,
if at the Borrower's election Loans are not incurred on the Tender
Offer Closing Date, the obligation of the Banks to make Share Purchase
Loans during the period commencing on the date following the Tender
Offer Closing Date and ending on the date which is 10 Business Days
after the Tender Offer Closing Date shall only be subject to the
following conditions:
(i) each of the conditions specified in this Section 5.01
(except that the Section 5.01(c) certificate of the Borrower will
not refer to Section 5.01(i)) required to be satisfied on the
Tender Offer Closing Date was satisfied (such satisfaction to be
evidenced by delivery on the Tender Offer Closing Date of a
certificate of the Agent, on behalf of the Banks, to such
effect);
(ii) the conditions specified in Section 5.01(e) and (g) and
5.03(a) and (b) would have been satisfied on the Tender Offer
Closing Date if Share Purchase Loans under this Agreement were
borrowed on such date (such satisfaction to be evidenced by the
delivery of the officer's certificate of the Borrower referred to
in Section 5.01(c) and the delivery on the Tender Offer Closing
Date of a certificate from the Agent, on behalf of the Required
Banks, that the condition specified in Section 5.01(e) was
satisfied);
(iii) the condition specified in Section 5.01(i) is
satisfied at the time of the making of such Share Purchase Loans;
(iv) there shall exist on the date of the making of such
Share Purchase Loans no judgment, order, injunction or other
restraint issued or filed with respect to, (A) the purchase of
Shares pursuant to the Stockholders Agreement
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or the Offer to Purchase, (B) the making of such Share Purchase
Loans or (C) the consummation of the Merger; and
(v) no Default or Event of Default exists on the date of the
making of such Share Purchase Loans under Section 9.05 of this
Agreement.
5.02 Conditions Precedent to Merger Borrowing Date. The obligation of each
Bank to make any Loans on the Merger Borrowing Date is subject to the
satisfaction of the following conditions at such time:
(a) Officer's Certificate. On the Merger Borrowing Date, the Agent
shall have received a certificate dated the Merger Borrowing Date signed by
the President or any Vice President of the Borrower stating that all the
conditions in Sections 5.02(d) and (j) and 5.03 have been satisfied on such
date.
(b) Opinions of Counsel. On the Merger Borrowing Date, the Agent shall
have received opinions, addressed to the Agent, the Collateral Agent and
each of the Banks and dated the Merger Borrowing Date, from (i) Cravath,
Swaine & Moore, special counsel to the Borrower, which opinion shall cover
the matters covered in Exhibit D-4 hereto, (ii) Anthony W. Graziano, Jr.,
Esq., General Counsel of the Borrower, which opinion shall cover the
matters covered in Exhibit D-5 hereto and (iii) White & Case, special
counsel to the Banks, which opinion shall cover the matters covered in
Exhibit D-6 hereto, all of which legal opinions and reliance letters shall
be reasonably satisfactory to the Agent.
(c) Bring-Downs. On the Merger Borrowing Date, the Agent shall have
received confirmatory bring-downs, each dated the Merger Borrowing Date, of
all opinions and certificates delivered pursuant to Section 5.01 which the
Agent shall reasonably request.
(d) Merger Documents; Merger. Prior to the Merger Borrowing Date,
there shall have been delivered to the Agent all Merger Documents not
delivered to the Agent on or prior to the Tender Offer Closing Date,
certified as true and correct by an Authorized Officer of the Borrower,
which shall be in form and substance reasonably satisfactory to the Agent
and each of the conditions precedent to the consummation of the Merger as
set forth in the Merger Documents shall have been satisfied or, if
applicable, waived to the reasonable satisfaction of the Agent.
Additionally, there shall not exist any judgment, order or injunction
prohibiting the consummation of the Merger. The Merger shall have been
consummated in accordance with the terms and conditions of the Merger
Documents and all applicable laws.
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(e) Subsidiary Guaranty. On or prior to the Merger Borrowing Date,
each Additional Subsidiary Guarantor shall have duly authorized, executed
and delivered a counterpart of the Subsidiary Guaranty (or an assumption
agreement satisfactory to the Agent in the case of Trico as survivor of the
Merger), and the Subsidiary Guaranty shall be in full force and effect.
(f) Pledge Agreement. On or prior to the Merger Borrowing Date, each
Additional Subsidiary Guarantor shall have duly authorized, executed and
delivered a counterpart of the Pledge Agreement, and shall have delivered
to the Collateral Agent, as pledgee thereunder, all of the certificates
representing the Pledged Securities referred to therein, endorsed in blank
or accompanied by executed and undated stock powers, and the Pledge
Agreement shall be in full force and effect.
(g) Corporate Proceedings. (i) On the Merger Borrowing Date, the Agent
shall have received from Trico a certificate, dated the Merger Borrowing
Date, signed by the President or any Vice-President of Trico in the form of
Exhibit E with appropriate insertions and deletions, together with (x)
copies of the articles of incorporation, any certificate of designation,
the by-laws, or other organizational documents of each Additional
Subsidiary Guarantor and (y) the resolutions, or such other administrative
approval, of each Additional Subsidiary Guarantor referred to in such
certificate to be reasonably satisfactory to the Agent.
(ii) On the Merger Borrowing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Transaction Documents (in each
case to the extent not required to be delivered pursuant to Section
5.01(c)(ii)) shall be reasonably satisfactory in form and substance to the
Agent, and the Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates
and any other records of corporate proceedings and governmental approvals,
if any, which the Agent may have reasonably requested in connection
therewith, such documents and papers, where appropriate, to be certified by
proper corporate or governmental authorities.
(h) Adverse Change, etc. From October 20, 1994 to the Merger Borrowing
Date, nothing shall have occurred (and neither the Banks nor the Agent
shall have become aware of any facts or conditions not previously known)
which the Agent or the Required Banks shall reasonably determine (a) has,
or is reasonably likely to have, a material adverse effect on the rights or
remedies of the Banks or the Agent under this Agreement or any other Credit
Document, or on the ability of any Credit Party to perform its obligations
to them, or (b) has, or is reasonably likely to have, a Material Adverse
Effect.
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(i) Litigation. No actions, suits or proceedings shall be pending or,
to the knowledge of the Borrower, threatened against any Credit Party on
the Merger Borrowing Date (a) with respect to this Agreement or any other
Credit Document, (b) which could reasonably be expected to have a material
adverse effect with respect to the Merger or (c) which the Agent or the
Required Banks shall determine could reasonably be expected to (i) have a
Material Adverse Effect or (ii) have a material adverse effect on the
rights or remedies of the Banks hereunder or under any other Credit
Document or on the ability of any Credit Party to perform its respective
obligations to the Banks hereunder or under any other Credit Document.
(j) Approvals. On the Merger Borrowing Date, all necessary
governmental and material third party approvals in connection with the
transactions contemplated by the Credit Documents and the other Transaction
Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods shall
have expired without any action being taken by any competent authority
which restrains or prevents such transactions or imposes, in the reasonable
judgment of the Required Banks or the Agent, materially adverse conditions
upon the consummation of such transactions.
5.03 Conditions Precedent to All Credit Events. The obligation of the Banks
to make each Loan hereunder, and the obligation of a Letter of Credit Issuer to
issue Letters of Credit hereunder, is subject, at the time of each such Credit
Event, to the satisfaction of the following condition:
(a) Notice of Borrowing; Letter of Credit Request. The Agent shall
have received a Notice of Borrowing meeting the requirements of Section
1.03 with respect to the incurrence of Loans (other than Swingline Loans
and Loans made pursuant to a Mandatory Borrowing); and the Agent and the
Letter of Credit Issuer shall have received a Letter of Credit Request
satisfying the requirements of Section 2.03 with respect to each issuance
of a Letter of Credit.
(b) No Default; Representations and Warranties. At the time of each
Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Credit Event, except to the extent that such representations
and warranties expressly relate to an earlier date.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Banks that all of the
applicable conditions specified in Section 5.01, 5.02 and/or 5.03, as the case
may be, (other than the
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required satisfaction of the Agent or any Bank as specified therein) exist as of
that time. All of the certificates, legal opinions and other documents and
papers referred to in this Section 5, unless otherwise specified, shall be
delivered to the Agent at its Notice Office for the account of each of the Banks
and, except for the Notes, in sufficient counterparts for each of the Banks and
shall be reasonably satisfactory in form and substance to the Agent.
SECTION 6. Representations, Warranties and Agreements. In order to induce
the Banks to enter into this Agreement and to make the Loans and issue and/or
participate in Letters of Credit provided for herein, the Borrower makes the
following representations and warranties to, and agreements with, the Banks, all
of which shall survive the execution and delivery of this Agreement and the
making of the Loans (with the making of each Credit Event thereafter being
deemed to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct in all material respects on and as of the
date of each such Credit Event (and, in the case of the Merger Borrowing Date,
after giving effect to the Merger), unless such representation and warranty
expressly indicates that it is being made as of any specific date, in which case
such representation or warranty shall be true and correct in all material
respects as of such specific date):
6.01 Corporate Status. Each of the Borrower and its Subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its organization and has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (ii) has duly qualified and
is authorized to do business and is in good standing in all jurisdictions where
it is required to be so qualified except where the failure to be so qualified
would not have a Material Adverse Effect.
6.02 Corporate Power and Authority. Each of the Borrower and its
Subsidiaries has the corporate power and authority to execute, deliver and carry
out the terms and provisions of the Credit Documents to which it is a party and
has taken all necessary corporate action to authorize the execution, delivery
and performance of the Credit Documents to which it is a party. Each of the
Borrower and its Subsidiaries has duly executed and delivered each Credit
Document to which it is a party and each such Credit Document constitutes the
legal, valid and binding obligation of such Person enforceable in accordance
with its terms.
6.03 No Violation. Neither the execution, delivery and performance by the
Borrower or any of its Subsidiaries of the Credit Documents to which it is a
party nor compliance with the terms and provisions thereof, nor the consummation
of the transactions contemplated therein (i) will contravene any applicable
provision of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of, any of the terms, coven-
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ants, conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets
of the Borrower or any of its Subsidiaries pursuant to the terms of any material
indenture, mortgage, deed of trust, agreement or other material instrument to
which the Borrower or any of its Subsidiaries is a party or by which it or any
of its property or assets are bound or to which it may be subject or (iii) will
violate any provision of the Charter or By-Laws of the Borrower or any of its
Subsidiaries.
6.04 Litigation. Except as set forth on Annex X hereto, there are no
actions, suits or proceedings pending or threatened with respect to the Borrower
or any of its Subsidiaries (i) that are likely to have a Material Adverse Effect
or (ii) that could reasonably be expected to have a material adverse effect on
(a) the rights or remedies of the Banks or on the ability of any Credit Party to
perform its obligations to them hereunder and under the other Credit Documents
to which it is a party or (b) the ability to consummate the Acquisition in
accordance with Section 7.17.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all Term
Loans and Revolving Loans (subject to the proviso contained in the following
clause (b)) incurred on the Initial Borrowing Date shall be utilized (i) to
finance, in part, the purchase of the Shares pursuant to the Offer to Purchase
or the Stockholder Agreement, (ii) to refinance the outstandings under the
Existing Borrower Credit Agreement and the Existing Trico Credit Facilities and
(iii) to pay certain fees and expenses arising in connection with the
Acquisition.
(b) The proceeds of all Term Loans and Revolving Loans incurred on the
Merger Borrowing Date shall be utilized to finance, in part, the Merger pursuant
to the Merger Documents and to pay certain fees and expenses arising in
connection with the Merger, provided that Revolving Loans in excess of
$65,000,000 shall not be incurred for the purposes described in the preceding
clause (a) and in this clause (b) without the prior consent of the Agent.
(c) The proceeds of Revolving Loans incurred on any day other than the
Initial Borrowing Date and the Merger Borrowing Date may be utilized for general
corporate and working capital requirements of the Borrower and its Subsidiaries
(including to finance Permitted Transactions), provided that the Borrower may
not incur Revolving Loans to finance Permitted Transactions (x) at any time
while the Compliance Leverage Ratio is equal to or greater than .70:1 and (y) at
any other time while the Compliance Leverage Ratio is equal to or greater than
.50:1 if after giving effect thereto the aggregate principal amount of Revolving
Loans then and theretofore incurred to finance Permitted Transactions would
exceed (i) if at such time the Compliance Leverage Ratio is greater than .60:1,
$30,000,000, (ii) if at such time the Compliance Leverage Ratio is equal to or
less than
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.60:1 but greater than .55:1, $40,000,000 and (iii) if at such time the
Compliance Leverage Ratio is equal to or less than .55:1, $50,000,000.
(d) Neither the making of any Loan hereunder, nor the use of the proceeds
thereof, will violate or be inconsistent with the provisions of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System and no part of
the proceeds of any Loan will be used to purchase or carry any Margin Stock in
violation of Regulation U or to extend credit for the purpose of purchasing or
carrying any Margin Stock in violation of Regulation U. Notwithstanding the
foregoing provisions of this Section 6.05, no proceeds of any Loan (other than
pursuant to Section 6.05(a) and (b)) will be utilized to purchase any Margin
Stock in a transaction, or as part of a series of transactions, the result of
which is the ownership by the Borrower and/or its Subsidiaries of 5% or more of
the capital stock of a corporation unless the Board of Directors of such
corporation has approved such transaction prior to any public announcement of
the purchase, or the intent to purchase, any such Margin Stock.
6.06 Governmental Approvals. Except as disclosed on Annex XI hereto, no
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision thereof, is
required to authorize or is required in connection with (i) the execution,
delivery and performance of any Credit Document or (ii) the legality, validity,
binding effect or enforceability of any Credit Document.
6.07 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an 'investment company' within the meaning of the Investment
Company Act of 1940, as amended (the 'ICA') or a company 'controlled' by an
'investment company' within the meaning of the ICA (other than any investment
company (including, without limitation, Bessemer and its Affiliates) which has
been exempted from all provisions of the ICA pursuant to an order of the SEC
under Section 6(c) of the ICA).
6.08 Public Utility Holding Company Act. Neither the Borrower nor any of
its Subsidiaries is a 'holding company,' or a 'subsidiary company' of a 'holding
company,' or an 'affiliate' of a 'holding company' or of a 'subsidiary company'
of a 'holding company,' within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information (excluding the
projections referred to in the immediately succeeding sentence) (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Borrower
or any of its Subsidiaries in writing to the Agent or any Bank for purposes of
or in connection with this Agreement or any transaction contemplated herein is,
and all other such factual information (taken as a whole) hereafter furnished by
or on behalf of the Borrower or any such Subsidiary in
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writing to any Bank will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as
a whole) not misleading at such time in light of the circumstances under which
such information was provided. The projections and pro forma financial
information prepared by the Borrower which are contained in such materials are
based on good faith estimates and assumptions believed by such Persons to be
reasonable at the time made, it being recognized by the Banks that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
materially from the projected results. As of the Effective Date, there is no
fact known to the Borrower which would have a Material Adverse Effect which has
not theretofore been disclosed to the Banks or to the Agent on behalf of the
Banks.
6.10 Financial Condition; Financial Statements. (a) On and as of each of
the Tender Offer Closing Date and the Merger Borrowing Date on a pro forma basis
after giving effect to the Acquisition and to all Indebtedness incurred and to
be incurred, and Liens created, and to be created, by the Borrower and its
Subsidiaries in connection therewith, (x) the sum of the assets, at a fair
valuation, of the Borrower and its Subsidiaries taken as a whole will exceed
their debts, (y) the Borrower and its Subsidiaries taken as a whole will not
have incurred or intended to, or believe that they will, incur debts beyond
their ability to pay such debts as such debts mature and (z) the Borrower and
its Subsidiaries taken as a whole will have sufficient capital with which to
conduct their business. For purposes of this Section 6.10, 'debt' means any
liability on a claim, and 'claim' means (i) right to payment whether or not such
a right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(b) (i) The consolidated statement of financial condition of the Borrower
and its Subsidiaries at December 31, 1993 and September 30, 1994 and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year or the nine-month period, as the case may be,
ended as of said dates, which, in the case of the December 31, 1993 statements,
have been examined by Deloitte & Touche, independent certified public
accountants, (ii) the consolidated statement of financial condition of Trico and
its Subsidiaries at December 31, 1993 and September 30, 1994 and the related
consolidated statements of income and cash flows of Trico and its Subsidiaries
for the fiscal year or the nine-month period, as the case may be, ended as of
said dates, which, in the case of the December 31, 1993 statements, have been
examined by Price Waterhouse, independent certified public accountants, and
(iii) the pro forma (after giving effect to the Acquisition and the related
financing thereof) consolidated balance sheet of the Borrower
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and its Subsidiaries as of December 31, 1994, copies of each of which have
heretofore been furnished to each Bank, present fairly the financial position of
the respective entities at the dates of said statements and the results for the
period covered thereby subject, in the case of quarterly financials to normal,
recurring year-end accruals (or, in the case of the pro forma balance sheet,
presents a good faith estimate of the consolidated pro forma financial condition
of the Borrower and its Subsidiaries (after giving effect to the Merger and the
related financing thereof) at the date thereof). All such financial statements
(other than the aforesaid pro forma balance sheets) have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied except to the extent provided in the notes to said
financial statements. Except for the increase in liabilities arising from the
incurrence of indebtedness to finance the Acquisition, nothing has occurred
since September 30, 1994 that has had a Material Adverse Effect.
(c) Except as fully reflected in the financial statements and the notes
thereto described in Section 6.10(b), there were as of the Initial Borrowing
Date (after giving effect to any Loans made, or Letters of Credit issued or
deemed issued hereunder, on such date), no material Contingent Obligations,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, interest rate or
foreign currency swap or exchange transaction with respect to the Borrower or
any of its Subsidiaries (including Trico and its Subsidiaries) which, either
individually or in aggregate, would be material to the Borrower and its
Subsidiaries taken as a whole (including Trico and its Subsidiaries taken as a
whole), as the case may be, except as incurred by the Borrower or Trico and
their respective Subsidiaries in the ordinary course of business consistent with
past practices subsequent to September 30, 1994.
6.11 Security Interests. Once executed and delivered, and until terminated
in accordance with the terms thereof, each of the Security Documents creates, as
security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons and
subject to no other Liens (except that the Security Agreement Collateral and
Mortgaged Property may be subject to Permitted Liens relating thereto), in favor
of the Agent for the benefit of the Banks. No filings or recordings are required
in order to perfect the security interests created under any Security Document
except for filings or recordings required in connection with any such Security
Document which shall have been made, or for which satisfactory arrangements have
been made, upon or prior to the execution and delivery thereof.
6.12 Representations and Warranties in Merger Documents. All
representations and warranties of the Borrower or Acq. Sub set forth in any of
the Merger Documents were true and correct in all material respects as of the
time such representations and warranties were made and shall be true and correct
in all material respects as of the Initial Borrowing Date as if such
representations and warranties were made on and as of such date,
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unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
6.13 Tax Returns and Payments. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries have paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrower) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to the date hereof.
6.14 Compliance with ERISA. (a) Each Plan of any Credit Party and its ERISA
Affiliates is in substantial compliance with ERISA and the Code;
(b) no ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan of any Credit Party or any of its ERISA Affiliates that is a
Subsidiary, other than an ERISA Event that is not likely to have a material
adverse effect on the business, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower, of any Subsidiary Guarantor or of the Borrower and
its Subsidiaries taken as a whole;
(c) Schedule B (Actuarial Information) to the most recent annual report
(Form 5500 Series) for each Plan of any Credit Party and its ERISA Affiliates
that is a Subsidiary, copies of which have been filed with the Internal Revenue
Service and furnished to the Lenders, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status;
(d) neither any Credit Party nor any of its ERISA Affiliates has incurred
or is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan where such Withdrawal Liability has or is reasonably likely to have a
material adverse effect on the business, assets, liabilities (contingent or
otherwise), condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, of any Subsidiary Guarantor or of the
Borrower and its Subsidiaries taken as a whole;
(e) neither any Credit Party nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no Multiemployer Plan of any Credit Party is reasonably expected to
be in reorganization or to be terminated, within the meaning of Title IV of
ERISA, where such reorganization or termination has resulted or is reasonably
likely to result in an increase in the contributions
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required to be made to such Multiemployer Plan that is reasonably likely to have
a material adverse effect on the business, assets, liabilities (contingent or
otherwise), condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, of any Subsidiary Guarantor or of the
Borrower and its Subsidiaries taken as a whole;
(f) none of the Credit Parties nor any of their Subsidiaries has or has had
an obligation to provide post-retirement welfare benefits which has resulted in,
or is reasonably likely to have, a material adverse effect on the business,
assets, liabilities (contingent or otherwise), condition (financial or
otherwise), operations, performance, properties or prospects of the Borrower, of
any Subsidiary Guarantor or of the Borrower and its Subsidiaries taken as a
whole;
(g) no Prohibited Transaction has occurred that has resulted in or is
reasonably likely to result in a material liability of any Credit Party;
(h) none of the Credit Parties nor any of their ERISA Affiliates has
received notification concerning the imposition of liability under Section 4069
of ERISA; and
(i) no Plan of any Credit Party or any of its ERISA Affiliates has an
Unfunded Current Liability that has resulted in or is reasonably likely to
result in a Material Adverse Effect.
6.15 Subsidiaries. (a) Annex IV hereto lists each Subsidiary of the
Borrower (and the direct and indirect ownership interest of the Borrower
therein), in each case existing on the Effective Date after giving effect to the
Acquisition. The Borrower will at all times own directly or indirectly the
percentages specified in said Annex IV of the outstanding capital stock of all
of said entities except to the extent otherwise permitted pursuant to Section
8.05.
(b) There are no restrictions on the Borrower or any of its Subsidiaries
which prohibit or otherwise restrict the transfer of cash or other assets from
any Subsidiary of the Borrower to the Borrower or from any Subsidiary to another
Subsidiary, other than prohibitions or restrictions existing under or by reason
of (i) this Agreement and the other Credit Documents, (ii) applicable law, (iii)
customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices, (iv) any restriction or encumbrance
with respect to a Subsidiary of the Borrower imposed pursuant to an agreement
which has been entered into for the sale or disposition of all or substantially
all of the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement, and (v) any documents or
instruments governing the terms of any Indebtedness or other obligations secured
by Liens permitted by Section 8.01, provided that such prohibitions or
restrictions apply only to the assets subject to such Liens.
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6.16 Intellectual Property, etc. The Borrower and each of its Subsidiaries
have obtained all material patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.17 Pollution and Other Regulations. (a) Each of the Borrower and its
Subsidiaries is in compliance with all Environmental Laws governing its business
except to the extent that such failure to comply and any resulting penalties,
fines or forfeitures are not reasonably likely to have a Material Adverse
Effect. All licenses, permits, registrations or approvals required for the
business of the Borrower and each of its Subsidiaries, as conducted as of the
Initial Borrowing Date, under any Environmental Law have been secured and the
Borrower and each of its Subsidiaries is in substantial compliance therewith,
except for such licenses, permits, registrations or approvals with respect to
which the failure to secure or to comply therewith is not reasonably likely to
have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
is in noncompliance with, breach of or default under any applicable writ, order,
judgment, injunction, or decree to which the Borrower or such Subsidiary is a
party or which would affect the ability of the Borrower or such Subsidiary to
operate any real property and no event has occurred and is continuing which,
with the passage of time or the giving of notice or both, would constitute
noncompliance, breach of or default thereunder, except in each such case, such
noncompliance, breaches or defaults as are not reasonably likely to, in the
aggregate, have a Material Adverse Effect. There are as of the Initial Borrowing
Date no Environmental Claims pending or, to the best knowledge of the Borrower,
threatened, against the Borrower or any of its Subsidiaries or any Real Property
owned or operated by the Borrower or any of its Subsidiaries that, individually
or in the aggregate, are reasonably likely to have a Material Adverse Effect.
There are no facts, circumstances, conditions or occurrences on any Real
Property owned or operated by the Borrower or any of its Subsidiaries or, to the
knowledge of the Borrower, on any property adjacent to any such Real Property
that could reasonably be expected (i) to form the basis of an Environmental
Claim against the Borrower, any of its Subsidiaries or any Real Property of the
Borrower or any of its Subsidiaries, or (ii) to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or transferability
of such Real Property under any Environmental Law, except in each such case,
such Environmental Claims or restrictions that individually or in the aggregate
are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any Real Property, in
each case where such occurrence or event is reasonably likely to have a Material
Adverse Effect. There are not now any underground storage tanks located on any
Real Property owned or operated by the Borrower or any of its Subsidiaries that
could give rise to an Environmental Claim against
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the Borrower or any of its Subsidiaries, except such Environmental Claims that,
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect.
6.18 Properties. The Borrower and each of its Subsidiaries have good and
marketable title to all properties owned by them, including all property
reflected in the consolidated balance sheet of the Borrower and its Subsidiaries
as referred to in Section 6.10(b), free and clear of all Liens, other than (i)
as referred to in the consolidated balance sheet or in the notes thereto or (ii)
otherwise permitted by Section 8.01 or 8.02. Annex V contains a true and
complete list of each Real Property owned or leased by the Borrower or any of
its Subsidiaries on the Effective Date (after giving effect to the Merger) and
the type of interest therein held by the Borrower or the respective Subsidiary.
6.19 Labor Relations; Collective Bargaining Agreements. There is (i) no
significant unfair labor practice complaint pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against any of them, before the National Labor Relations Board, and no
significant grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement is now pending against the Borrower or
any of its Subsidiaries or, to the best knowledge of the Borrower, threatened
against any of them, (ii) no significant strike, labor dispute, slowdown or
stoppage is pending against the Borrower or any of its Subsidiaries or, to the
best knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries and (iii) to the best knowledge of the Borrower, no union
representation question exists with respect to the employees of the Borrower or
any of its Subsidiaries, except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such as is
not reasonably likely to have a Material Adverse Effect.
6.20 Indebtedness. Annex VI, sets forth a true and complete list of all
Indebtedness (other than intercompany indebtedness) of the Borrower and each of
its Subsidiaries (including Trico and its Subsidiaries) which is to remain
outstanding after the Initial Borrowing Date (whether or not any condition to
such incurrence could be met) (collectively, the 'Existing Indebtedness'), in
each case showing the aggregate principal amount thereof (and available
commitments, if any, thereunder) and the name of the respective borrower and any
other entity which directly or indirectly guaranteed such debt.
6.21 Stockholders Agreement; Offer to Purchase. All necessary governmental
and material third party approvals in connection with the purchase of Shares
pursuant to the Offer to Purchase (and to the extent such purchase is effected
thereunder, the Stockholders Agreement), and the transactions contemplated
thereby and otherwise referred to therein have been or, prior to the time when
required, will have been, obtained and remain in effect, and all applicable
waiting periods have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any compe-
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tent authority which materially restrains, prevents, imposes materially adverse
conditions upon or unduly hinders, the consummation of the purchase of Shares
pursuant to the Offer to Purchase (or, if applicable, the Stockholders
Agreement) or the Merger. Additionally, except to the extent consented to by the
Required Banks, there does not exist any judgment, order, injunction or other
restraint issued or filed with respect to the making of Loans or which would
reasonably be expected to materially impair the right or ability of the Acq. Sub
to purchase the Shares pursuant to the Offer to Purchase (and to the extent such
purchase is effected thereunder, the Stockholders Agreement) or to consummate
the Merger. At the time of their dissemination to the public, the Offer to
Purchase and all other Tender Offer Documents and Additional Tender Offer
Documents (taken as a whole) prepared by or on behalf of the Borrower and/or its
Subsidiaries (including, for the purpose of this Section 6.21, Trico and/or its
Subsidiaries), did not or will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which made, not
misleading.
6.22 Merger. On and as of the Merger Borrowing Date, (i) all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities required
in order to make or consummate the Merger, or otherwise required in connection
with the Merger, will have been obtained, given, filed or taken and are or will
be in full force and effect (or effective judicial relief with respect thereto
will have been obtained) and (ii) the Merger shall have been consummated in
accordance with the Merger Documents and in compliance with all applicable laws.
SECTION 7. Affirmative Covenants. So long as any Loan or any Unpaid
Drawing, together with interest, Fees and all other Obligations incurred
hereunder shall remain unpaid, any Note or Letter of Credit shall be outstanding
or any Bank shall have any Commitment hereunder, the Borrower will, unless the
Required Banks shall otherwise consent in writing:
7.01 Compliance with Laws, etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders.
7.02 Payment of Taxes, etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property, provided however that neither the Borrower nor
any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained.
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7.03 Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in the same or similar businesses and owning similar
properties in the same general areas in which the Borrower or such Subsidiary
operates.
7.04 Preservation of Corporate Existence, etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises, provided however that
neither the Borrower nor any of its Subsidiaries shall be required to preserve
any right or franchise if the Board of Directors of the Borrower or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Borrower or such Subsidiary, as the case
may be, and that the loss thereof is not disadvantageous in any material respect
to the Borrower, such Subsidiary or the Banks.
7.05 Visitation Rights. At any reasonable time and from time to time and
upon reasonable prior notice, permit the Agent or any Bank, or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
7.06 Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with GAAP.
7.07 Maintenance of Properties, etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
7.08 Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Credit
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate, provided
however that, provided no Default pursuant to Section 9.01 or an Event of
Default has occurred and is continuing, or would result therefrom, (A) the
Borrower may pay to Bessemer or its Affiliates (x) annual management fees not to
exceed $850,000 in the aggregate for any fiscal year (payable quarterly) and (y)
a one-time advisory fee with respect to the Acquisition in an aggregate amount
equal to $1,800,000, (B) each of the Borrower and any Subsidiary may, in the
ordinary course of its business,
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engage in any transaction with or among each other in connection with the sale,
transfer, conveyance or other disposition of any property or assets (other than
any capital stock owned by the Borrower or any of its Subsidiaries), provided
that, except as provided in the succeeding clause (C), sales, transfers and
conveyances or other dispositions by the Borrower and/or any Subsidiary
Guarantor to any Subsidiary that is not a Subsidiary Guarantor may only be made
so long as the greater of (x) the aggregate net book value (as determined in
good faith by the chief financial officer of the Borrower) of, or (y) the price
charged for, all assets or other properties so sold, transferred, conveyed or
otherwise disposed of by the Borrower and/or any Subsidiary Guarantor during the
period commencing on the Effective Date and ending on the date of determination
shall not exceed $1,000,000 and (C) the Borrower or any Subsidiary Guarantor may
effect the transfers permitted by Section 8.05(vi). Notwithstanding the
foregoing, nothing herein shall prohibit (i) the payment by Borrower and its
Subsidiaries to individuals who might constitute Affiliates of Bessemer, the
Borrower or its Subsidiaries of reasonable and customary directors' fees or (ii)
the reimbursement of such individuals for reasonable out-of-pocket expenses
incurred in attending meetings of the boards of directors of Borrower or such
Subsidiaries.
7.09 Interest Rate Hedging. Within 90 days after the Initial Borrowing
Date, enter into and maintain Interest Rate Agreements, on terms and conditions
reasonably acceptable to the Agent, covering a notional amount of not less than
50% of the total amount of the Term Loans.
7.10 Net Worth. Maintain for each fiscal quarter a Consolidated Net Worth
of not less than an amount equal to (x) $140,000,000 plus (y) 50% of Cumulative
Consolidated Net Income at such time plus (z) 50% of the net cash proceeds
received by the Borrower from the issuance of its capital stock during the
period from the Initial Borrowing Date through the first day of the fiscal
quarter for which such amount is being calculated.
7.11 Leverage Ratio. (i) Prior to the date of the delivery of any Leverage
Ratio Reduction Certificate, maintain as at the end of any fiscal quarter ending
during the fiscal year set forth below a Leverage Ratio equal to or less than
the ratio set forth opposite such fiscal year:
Fiscal Quarter Ratio
1995 .70:1
1996 .65:1
1997 .60:1
1998 .55:1
1999 .50:1
2000 .50:1
2001 .50:1
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(ii) On and after the date of the delivery of the initial Leverage Ratio
Reduction Certificate, maintain as at the end of each fiscal quarter ending
after such delivery a Compliance Leverage Ratio equal to or less than the lower
of (A) the ratio set forth in the last Leverage Ratio Reduction Certificate then
delivered pursuant to Section 12.16 and (B) the ratio otherwise applicable
pursuant to the preceding clause (i) after the date of the delivery of such
Leverage Ratio Reduction Certificate.
7.12 Interest Coverage Ratio. Maintain for any Test Period (x) occurring on
or prior to December 31, 1995, an Interest Coverage Ratio of not less than 3.0:1
and (y) occurring on or after March 31, 1996, an Interest Coverage Ratio of not
less than 3.5:1.
7.13 Reporting Requirements. Furnish to the Banks:
(i) as soon as possible and in any event within five days after the
occurrence of each Default or Event of Default continuing on the date of
such statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default or Event of Default and the action
that the Borrower has taken and proposes to take with respect thereto;
(ii) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the Borrower's Quarterly Report on Form 10-Q filed with
the Securities and Exchange Commission (the 'SEC'), duly certified (subject
to year-end audit adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with GAAP, together with (A)
a certificate of said officer stating that no Default or Event of Default
has occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect
thereto, (B) a schedule in form reasonably satisfactory to the Agent of the
computations used by the Borrower in determining compliance with the
covenants contained in Sections 7.10, 7.11 and 7.12 and (C) a schedule in
form and detail reasonably satisfactory to the Agent setting forth the
Borrower's Performance Level as of the end of such fiscal quarter;
(iii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the Borrower's Annual
Report on Form 10-K filed with the SEC, accompanied by either an
unqualified opinion or an opinion reasonably acceptable to the Required
Banks, in either case, of Deloitte & Touche or other independent public
accountants of recognized standing reasonably acceptable to the Required
Banks, together with (A) a certificate of such accounting firm addressed to
the Banks stating that in the course of the regular audit of the business
of the Borrower and its Subsidiaries, which audit was conducted by such
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accounting firm in accordance with generally accepted auditing standards,
such accounting firm has obtained no knowledge that a Default or Event of
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof, (B) a schedule in form
reasonably satisfactory to the Agent of the computations used by such
accountants in determining, as of the end of such fiscal year, compliance
with the covenants contained in Sections 7.10, 7.11 and 7.12, (C) a
certificate of the chief financial officer of the Borrower stating that no
Default or Event of Default has occurred and is continuing or, if a Default
or Event of Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (D) a schedule in form and detail reasonably
satisfactory to the Agent setting forth the Borrower's Performance Level as
of the end of such fiscal year;
(iv) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, operating performance projection
assumptions and operating performance projections for the then current
fiscal year, in each case, prepared by the management of the Borrower in
form and scope reasonably satisfactory to the Agent;
(v) promptly and in any event within 15 days after the Borrower or any
Subsidiary or any of their respective ERISA Affiliates knows or has reason
to know that any ERISA Event has occurred that could reasonably be expected
to result in liability of the Borrower or Subsidiary or any of their
respective ERISA Affiliates that would, if paid in full, constitute a
Material Adverse Effect, a certificate of the chief financial officer of
the Borrower describing such ERISA Event and the action, if any, that the
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes
to take, together with any notices required or proposed to be given to or
filed with or by the Borrower or such Subsidiary or such ERISA Affiliate,
the PBGC, a Plan participant or the Plan Administrator with respect
thereto;
(vi) promptly and in any event within four Business Days after receipt
thereof by the Borrower or any Subsidiary or any of their respective ERISA
Affiliates, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan;
(vii) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan of any Credit Party, or any Subsidiary;
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(viii) promptly and in any event within 10 Business Days after receipt
thereof by the Borrower or any Subsidiary or any of their respective ERISA
Affiliates from the sponsor of a Multiemployer Plan, copies of each notice
received by the Borrower or any Subsidiary or any of their respective ERISA
Affiliates concerning (A) the imposition of Withdrawal Liability by any
Multiemployer Plan, (B) the reorganization, partition, declaration of
insolvency or termination, within the meaning of Title IV of ERISA, of any
Multiemployer Plan or (C) the amount of liability incurred, or that may be
incurred, by the Borrower or any Subsidiary or any of their respective
ERISA Affiliates in connection with any event described in clause (A) or
(B);
(ix) promptly and in any event within 15 days after the Borrower or
any Subsidiary or any of their respective ERISA Affiliates knows or has
reason to know that any Prohibited Transaction that is reasonably likely to
result in a material liability of any Credit Party or any Subsidiary has
occurred, a statement of the chief financial officer of the Borrower
describing such Prohibited Transaction and the action, if any, that the
Borrower, such Subsidiary or such ERISA Affiliate is required or proposes
to take with respect thereto;
(x) promptly and in any event within 15 days after receipt thereof by
the Borrower or any Subsidiary or any of their respective ERISA Affiliates,
copies of each notice concerning the imposition of liability under Section
4069 or 4212 of ERISA;
(xi) promptly after the commencement thereof, notice of all actions,
suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Borrower or any of its Subsidiaries of the type described,
and subject to the qualifications set forth, in Section 6.04;
(xii) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports that the Borrower or any
of its Subsidiaries sends to its stockholders generally, and copies of all
regular, periodic and special reports, and all registration statements, if
any, that the Borrower or any of its Subsidiaries files with the SEC or any
governmental authority that may be substituted therefor, or with any
national securities exchange;
(xiii) promptly after the furnishing thereof, copies of any statement
or report furnished to any other holder of the securities of the Borrower
or of any of its Subsidiaries pursuant to the terms of any indenture, loan
or credit or similar agreement and not otherwise required to be furnished
to the Banks pursuant to any other clause of this Section 7.13;
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(xiv) within 10 days after receipt, copies of all Revenue Agent
Reports (Internal Revenue Service Form 886), or other written proposals of
the Internal Revenue Service, that propose, determine or otherwise set
forth positive adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which the Borrower is a member aggregating $1,000,000 or
more;
(xv) promptly, and in any event within five Business Days after the
due date (with extensions) for filing the final Federal income tax return
in respect of each taxable year, a certificate (a 'Tax Certificate'),
signed by the President or the chief financial officer of the Borrower,
stating that the common parent of the affiliated group (within the meaning
of Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member has paid to the Internal Revenue Service or other taxing
authority, or to the Borrower, the full amount that such affiliated group
is required to pay in respect of Federal income tax for such year;
(xvi) promptly after the Borrower or any of its Subsidiaries knows or
has reason to know of the existence thereof, notice of any past, pending or
threatened Environmental Claim affecting the Borrower or any of its
Subsidiaries or any Mortgaged Property of the type described, and subject
to the qualifications set forth, in Section 6.17;
(xvii) promptly after the Borrower or any of its Subsidiaries knows or
has reason to know of the existence thereof, notice of any past condition
or occurrence on any Mortgaged Property that (a) results in material
noncompliance by Borrower or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be anticipated to form the basis
of an Environmental Claim affecting the Borrower or any of its Subsidiaries
or any Mortgaged Property unless such Environmental Claim would not be
reasonably likely to, individually or when aggregated with all other such
Environmental Claims, have a Material Adverse Effect;
(xviii) promptly after the Borrower or any of its Subsidiaries knows
or has reason to know of the existence thereof, notice of any condition or
occurrence on any Mortgaged Property or any property adjoining any
Mortgaged Property that could reasonably be anticipated to cause such
Mortgaged Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Mortgaged Property under any
Environmental Law;
(xix) promptly after the Borrower or any of its Subsidiaries knows or
has reason to know of the existence thereof, notice of the actual or
anticipated taking
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of any material removal or remedial action in response to the actual or
alleged presence of any Hazardous Material on any Mortgaged Property;
(xx) (A) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a written summary prepared by
the management of the Borrower, in form and scope reasonably satisfactory
to the Agent, of (1) all material communications with any government or
governmental agency relating to Environmental Laws (other than routine
communications regarding immaterial permits and similar matters) and (2)
all material communications with any other person relating to Environmental
Claims, and (B) at any time, such detailed reports of any Environmental
Claim as may reasonably be requested by the Agent (except for any such
reports as to which the Borrower is asserting, in good faith, the
attorney-client privilege); and
(xxi) such other information respecting the business, assets,
liabilities (contingent or otherwise), condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower or any of
its Subsidiaries as any Bank through the Agent may from time to time
reasonably request.
7.14 Compliance with Environmental Laws. Comply, and will cause each of its
Subsidiaries to comply, in each case, in all material respects with all
Environmental Laws and Environmental Permits applicable to the operations of
Borrower and its Subsidiaries and the ownership or use of the Mortgaged
Properties, will cause all tenants and other persons occupying the Mortgaged
Properties to comply in all material respects with all such Environmental Laws
and Environmental Permits, will promptly pay or cause to be paid all costs and
expenses incurred by reason of such compliance unless the obligation to make
such payment is being contested in good faith before a court of competent
jurisdiction, will keep or cause to be kept all such Mortgaged Properties free
and clear of any liens imposed pursuant to any such Environmental Law, and will
obtain and renew or cause to be obtained or renewed all Environmental Permits
required for ownership or use of the Mortgaged Properties.
7.15 Presence of Hazardous Materials. Not, and will not permit any
Subsidiary to, generate, use, treat, store, handle, release or dispose of, or
permit the generation, use, treatment, storage, handling, release or disposal
of, Hazardous Materials on any Mortgaged Property, or transport or permit the
transportation of Hazardous Materials to or from any Mortgaged Property except
in all such cases in such quantities as are reasonably required for the normal
operation of the Borrower or any of its Subsidiaries and in material compliance
with all applicable Environmental Laws.
7.16 Security Documents; Further Assurances. At the expense of the
Borrower, or the appropriate Subsidiary, make, execute, endorse, acknowledge,
file and/or
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deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other assurances or
instruments and take such further steps relating to the collateral covered by
any of the Security Documents as the Collateral Agent may reasonably require and
which are necessary in order to effectuate the transactions contemplated by the
Credit Documents and grant, preserve and protect the validity and priority of
the securing interests intended to be created by the Security Documents, and
will cause each Subsidiary to do all of the foregoing. Furthermore, the Borrower
will cause to be delivered to the Collateral Agent such opinions of counsel,
title insurance and other related documents as may be reasonably requested by
the Agent to assure themselves that this Section 7.16 has been complied with. It
is understood and agreed that each action required above by this Section 7.16
shall be completed as soon as possible, but in no event later than 60 days after
such action is requested to be taken by the Agent or the Required Banks,
provided that in no event shall the Borrower be required to take any action,
other than using its commercially reasonable efforts, to obtain consents from
third parties with respect to its compliance with this Section 7.16.
7.17 Merger; Control. (i) Cause the Merger to be consummated as promptly as
practical and in no event later than the date which is 180 days after the
Initial Borrowing Date, (ii) take all actions available to it to cause designees
of the Borrower to constitute a majority of the Board of Directors of Trico as
promptly as reasonably practical after the Initial Borrowing Date (and in no
event later than the Merger Borrowing Date), (iii) comply with all of its
covenants and agreements contained in the Merger Agreement, (iv) exercise all of
its rights and powers to cause Trico to comply with all of Trico's covenants and
conditions contained in the Merger Agreement and (v) not waive or agree to amend
any covenant binding upon Trico and its subsidiaries that is set forth in the
Merger Agreement if such waiver or amendment would result in a breach of any of
the covenants contained in this Agreement (other than pursuant to the preceding
clause (iv)).
7.18 End of Fiscal Years. For financial reporting purposes, cause (i) its,
and each of its Subsidiaries' (other than Foreign Subsidiaries'), fiscal year to
end on December 31 of each year and (ii) each of its Foreign Subsidiaries' to
maintain the accounting periods maintained by such Foreign Subsidiary on the
Effective Date, provided that any of the accounting periods subject to this
clause (ii) may be changed if (x) the Borrower gives the Agent 30 days' prior
written notice of such proposed change and (y) no Default pursuant to Section
9.01 or Event of Default then exists or would result from such change.
SECTION 8. Negative Covenants. So long as any Loan or any Unpaid Drawing,
together with interest, Fees and all other Obligations incurred hereunder shall
remain unpaid, any Note or Letter of Credit shall be outstanding or any Bank
shall have
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any Commitment hereunder, the Borrower will not, without the written consent of
the Required Banks:
8.01 Liens, etc. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file,
or permit any of its Subsidiaries to sign or file, under the UCC of any
jurisdiction, a financing statement that names the Borrower or any of its
Subsidiaries as debtor, or sign, or permit any of its Subsidiaries to sign, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, excluding, however, from the
operation of the foregoing restrictions the following:
(i) Liens created by or pursuant to the Credit Documents;
(ii) Liens on assets of Foreign Subsidiaries, provided that such Liens
do not extend to, or encumber, assets or the capital stock of the Borrower
or any of its Domestic Subsidiaries;
(iii) the Liens existing on the date hereof as described on Annex
VIII;
(iv) purchase money Liens upon or in property acquired or held by the
Borrower or any Subsidiary Guarantor (other than, prior to the Merger
Borrowing Date, Acq. Sub) in the ordinary course of business to secure the
purchase price of such property or to secure Indebtedness incurred solely
for the purpose of financing the acquisition, construction or improvement
of any such property to be subject to such Liens, or Liens existing on any
such property at the time of acquisition, or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided however that no such Lien shall extend to or cover any property
other than the property being acquired, constructed or improved, and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed or
replaced, and provided further, that the aggregate principal amount of the
Indebtedness at any one time outstanding secured by Liens permitted by this
clause (iv), when aggregated with the outstanding principal amount of
Indebtedness secured by Liens permitted by Section 8.01 (ix), shall not
exceed $12,000,000 at any one time outstanding and that any such
Indebtedness shall not otherwise be prohibited by the terms of the Credit
Documents;
(v) the replacement, extension or renewal of any Lien permitted by
clause (iii) above upon or in the same property theretofore subject thereto
or the
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replacement, extension or renewal (without increase in the principal
amount) of the Indebtedness secured thereby;
(vi) Liens arising under leases permitted under Section 8.03;
(vii) prior to the Merger Borrowing Date, Liens on Margin Stock;
(viii) with respect to any Real Property owned by the Borrower or any
of its Subsidiaries, easements, encroachments, covenants, rights of way,
minor defects, irregularities or encumbrances on title which are not
unusual with respect to property similar in character to any such Real
Property and which do not materially impair such Real Property for the
purpose for which it is held by the owner thereof, municipal and zoning
ordinances, which are not violated by the existing improvements and the
present use made by the owner thereof, general real estate taxes and
assessments not yet delinquent and such other similar items as the Agent
may consent to;
(ix) Liens for taxes and assessment not yet due and payable or Liens
for taxes being contested in good faith and by appropriate proceedings for
which adequate reserves (in the good faith judgment of the management of
the Borrower) have been established;
(x) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(xi) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(xii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, trade contracts, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (exclusive of
obligations in respect of the payment for borrowed money); and
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(xiii) Liens not otherwise permitted by the foregoing clauses (i)
through (xii) securing any Indebtedness of the Borrower and/or any
Subsidiary Guarantor (other than, prior to the Merger Borrowing Date, Acq.
Sub), provided that the aggregate principal amount of Indebtedness secured
by Liens permitted by this clause (xiii), when aggregated with the
principal amount of Indebtedness secured by Liens permitted by Section
8.01(iv), shall not exceed $12,000,000 at any one time outstanding and that
any such Indebtedness shall not otherwise be prohibited by the terms of the
Credit Documents.
8.02 Indebtedness. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any
Indebtedness other than:
(i) in the case of the Borrower and/or any Subsidiary Guarantor,
unsecured Indebtedness in an aggregate principal amount not to exceed
$15,000,000 at any one time outstanding, provided however that such
additional Indebtedness shall not (x) have any scheduled amortization on or
before the Maturity Date, (y) have terms which are more restrictive than
the terms hereof and of the other Credit Documents and (z) have terms which
conflict with the terms hereof and of the other Credit Documents;
(ii) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 8.06(i);
(iii) in the case of the Borrower and any Subsidiary Guarantor (other
than Acq. Sub):
(A) Indebtedness secured by Liens permitted by Section 8.01(iv)
and (xiii) not to exceed in the aggregate $12,000,000 at any one time
outstanding;
(B) Existing Indebtedness and any extensions, renewals or
refinancings of such Existing Indebtedness constituting Specified
Existing Indebtedness, provided that such Indebtedness is not
increased from that outstanding at the time of any such extension,
renewal or refinancing, and provided further that no Existing
Indebtedness of Trico and/or its Subsidiaries shall remain outstanding
after the Merger Borrowing Date unless so indicated on Annex VI;
(C) Indebtedness under Interest Rate Agreements incurred for the
purpose of hedging Indebtedness permitted pursuant to this Agreement
in an aggregate notional amount not to exceed the amount of such
Indebtedness;
(D) Endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
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(E) Indebtedness under Capitalized Leases permitted under Section
8.03;
(F) Indebtedness under the Credit Documents; and
(G) Indebtedness under Currency Agreements to the extent
permitted by Section 8.06(ix);
(iv) Trico UK or any of its Subsidiaries may incur Indebtedness for
their respective working capital purposes from time to time pursuant to one
or more revolving credit or similar agreements or Foreign Intercompany
Loans, provided that (A) the aggregate principal amount of such
Indebtedness at any time outstanding pursuant to this clause (iv) shall not
exceed (I) at any time an amount, when aggregated with outstanding
Indebtedness of Trico UK or any of its Subsidiaries constituting Existing
Indebtedness, equal to (pound)7,000,000 plus (II) at any time prior to the
Brentford Sale Date, an additional amount constituting Foreign Intercompany
Loans equal to (pound)6,500,000, (B) such Indebtedness may be secured, but
only with the assets of Trico UK or any of its Subsidiaries and (C) except
to the extent of bank guarantees constituting Letters of Credit, no Person
other than Trico UK and its Subsidiaries shall have guaranteed or be
contingently liable for the repayment of such Indebtedness; and
(v) Trico Australia or any of its Subsidiaries may incur Indebtedness
for their respective working capital purposes from time to time pursuant to
one or more revolving credit or similar agreements, provided that (A) the
aggregate principal amount of such Indebtedness at any time outstanding
pursuant to this clause (vi), when aggregated with Indebtedness of Trico
Australia and its Subsidiaries constituting Foreign Intercompany Loans,
shall not exceed AUS $5,000,000, (B) such Indebtedness may be secured, but
only with the assets of Trico Australia or any of its Subsidiaries and (C)
no Person other than Trico Australia and its Subsidiaries shall have
guaranteed or be contingently liable for the repayment of such
Indebtedness.
8.03 Lease Obligations. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal property in
connection with any sale and lease-back transaction, or (ii) for the rental or
hire of other real or personal property of any kind under leases or agreements
to lease (including Capital Leases) having an original term of one year or more
that would cause the direct or contingent liabilities of the Borrower and its
Subsidiaries in respect of all such obligations to exceed $15,000,000 payable in
any period of 12 consecutive months.
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8.04 Mergers, etc. Merge with or into or consolidate with or into any
Person, or permit any of its Subsidiaries to do so, except that (i) so long as
no Event of Default then exists or would result therefrom, any Subsidiary of the
Borrower that is not a Credit Party may merge or consolidate with or into any
Person (other than Acq. Sub), (ii) so long as no Event of Default then exists or
would result therefrom, any Credit Party (other than Acq. Sub) may merge or
consolidate with any Person, so long as in the case of such a transaction
involving a Credit Party where such Credit Party is not the surviving
corporation, the survivor has executed and delivered agreements assuming the
obligations of such Credit Party under this Agreement and the other Credit
Documents, which assumption agreements and all related actions and documentation
shall be in form and substance reasonably satisfactory to the Agent and the
Banks, and (iii) the Merger shall be permitted.
8.05 Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of,
or permit any of its Subsidiaries to sell, lease, transfer or otherwise dispose
of, all or any part of its assets, including (without limitation) any
manufacturing plant or substantially all assets constituting the business of a
division, branch or other unit operation, except:
(i) sales, transfers or other dispositions in the ordinary course of
business of the Borrower or such Subsidiary consistent with past practices;
(ii) in connection with a transaction authorized by Section 8.04;
(iii) the investments and transfers or dispositions of properties
permitted by Section 8.06;
(iv) the Brentford Sale;
(v) other sales of assets for cash and for fair value as determined by
the board of directors of the Borrower or such Subsidiary, as the case may
be, in an aggregate amount not to exceed 5% of the book value of all assets
of (x) prior to the Merger Borrowing Date, the Borrower and its
Subsidiaries as of the Effective Date and (y) thereafter, the Borrower and
its Subsidiaries as of the Merger Borrowing Date, provided that any
permitted sale of the capital stock of any Subsidiary must be for all the
capital stock of such Subsidiary owned by the Borrower and its
Subsidiaries;
(vi) transfers of (x) assets of the Borrower or any Subsidiary that
are physically situated in Mexico to a Subsidiary of the Borrower which is
organized under the laws of Mexico, provided that at the time of such
transfer, and after giving effect thereto, no Default under Section 9.01 or
Event of Default shall have occurred and be continuing;
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(vii) dividends or distributions permitted by Subsection 8.07 of this
Section;
(viii) Acq. Sub may sell Margin Stock for cash at fair market value,
provided that the proceeds from such sale are held as cash; and
(ix) so long as prior to, and after giving effect thereto, there shall
not be a Default under Section 9.01 or Event of Default then in existence,
the Borrower and any Subsidiary may, in the ordinary course of its
business, sell, transfer, convey or otherwise dispose of its property or
assets (other than any capital stock owned by the Borrower or any of its
Subsidiaries) to any Foreign Subsidiary, provided that any transfer
effected pursuant to this clause (ix) shall be permitted to the extent
permitted by Section 7.08(B).
8.06 Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) (A) the Borrower may make or hold intercompany loans and advances
to any Subsidiary Guarantor (and prior to the Merger Borrowing Date Trico),
and any Subsidiary Guarantor (and prior to the Merger Borrowing Date Trico)
may make or hold intercompany loans and advances to the Borrower or another
Subsidiary Guarantor (and prior to the Merger Borrowing Date to the extent
such loan or advance is made by Trico, any Subsidiary of Trico that is to
become an Additional Subsidiary Guarantor on the Merger Borrowing Date)
(collectively, 'Domestic Intercompany Loans'), and (B) the Borrower may
make intercompany loans and advances to any Foreign Subsidiary
(collectively, 'Foreign Intercompany Loans', and together with Domestic
Intercompany Loans, collectively, 'Intercompany Loans') provided that (x)
each such Intercompany Loan shall be evidenced by a promissory note which
shall be pledged to the Collateral Agent pursuant to the Pledge Agreement
(but only on the second day after the Merger Borrowing Date in the case of
Intercompany Loans made by Trico or any of its Sub- sidiaries); (y) the
aggregate principal amount of Foreign Intercompany Loans to Trico UK or any
of its Subsidiaries shall be permitted under Section 8.02(iv) and (z) the
aggregate principal amount of Foreign Intercompany Loans to Trico Australia
or any of its Subsidiaries shall be permitted under Section 8.02(v)
(ii) investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(iii) investments by the Borrower in Interest Rate Agreements entered
into pursuant to Section 8.02(iii)(C);
(iv) Investments existing on the date hereof as described on Annex IX;
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(v) loans to employees in the ordinary course of business aggregating
not more than $2,000,000 at any one time outstanding;
(vi) real estate bridge loans to employees in connection with
relocations not to exceed at any one time outstanding, when aggregated with
all loans to employees outstanding as permitted in clause (v) of this
Section 8.06, $5,000,000;
(vii) the Acquisition shall be permitted;
(viii) acquisitions by the Borrower and any Subsidiary Guarantor
(other than Acq. Sub) of the capital stock or other equity interests of any
Person so long as the following conditions are met:
(A) no Default or Event of Default exists at the time, or after
giving effect to, such Investment;
(B) substantially all of the business of such Person is in the
same or an ancillary or complementary line of business as the Borrower
or such Subsidiary Guarantor as permitted by Section 8.08;
(C) all requisite governmental authorities and third parties
shall have approved or consented to such Investment to the extent
required without imposing burdensome conditions on the contemplated
Investment, all applicable appeal periods shall have expired and there
shall be no governmental or judicial action, actual or threatened,
restraining or imposing burdensome conditions on such investments;
(D) after giving effect to such investment, on a pro forma basis
(taking into account the financial results of the Borrower and its
Subsidiaries and such Person and all financing to be issued or
incurred in connection with such investment) for the four fiscal
quarters ending immediately prior to the date of such Investment, no
Default or Event of Default shall occur or be continuing, and the
Borrower shall deliver to the Agent a certificate of its chief
financial officer certifying that the condition set forth in this
clause (E) shall have been met with respect to such Investment, such
pro forma calculation to be prepared in good faith by the Borrower
based upon assumptions deemed reasonable by the chief financial
officer of the Borrower;
(E) if such Person is a Wholly-Owned Subsidiary that is not a
Foreign Subsidiary, such Person shall execute a Subsidiary Assumption
Agreement pursuant to which such Person shall become a party to, no
later
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than concurrently with the consummation of such Investment, (x) the
Subsidiary Guaranty, (y) the Pledge Agreement and (z) the Security
Agreement and take whatever action (including, without limitation, the
filing of UCC financing statements, the giving of notices and the
endorsement of notices on title documents) that may be necessary or
advisable in the opinion of the Collateral Agent to vest in the
Collateral Agent (or in any representative of the Collateral Agent
designated by it) valid and subsisting liens on the properties
purported to be subject to the Security Documents;
(F) the Borrower or such Subsidiary Guarantor shall pledge the
capital stock or other equity interests of such Person owned by the
Borrower or such Subsidiary Guarantor to the Collateral Agent pursuant
to the terms of the Pledge Agreement;
(G) if such Person is a Wholly-Owned Subsidiary that is not a
Foreign Subsidiary, such Person shall, if the Agent requests same in
its sole discretion, execute a mortgage (each an 'Additional
Mortgage') in respect of any material plant or other facility owned by
such Person, as shall be determined by the Agent in its reasonable
judgment, that is not disposed of within 12 months of the date of such
Investment and shall take any and all other action necessary to
encumber such Person's fee interest in such plant or other facility,
provided however that during such 12 month period the Borrower or such
Subsidiary will not create, incur, assume or suffer to exist, or
permit such Person to create, incur, assume or suffer to exist, any
Lien on such material plant or other facility other than Liens
permitted pursuant to Section 8.01;
(H) at the time of, and after giving effect to, such Investment,
(x) the Total Unutilized Revolving Commitment is not less than
$25,000,000 and (y) at any time prior to the date of the delivery of a
Leverage Ratio Reduction Certificate establishing the Compliance
Leverage Ratio to be less than .50:1, the excess of (I) the sum of the
amounts (i) expended to effect all Investments pursuant to this
Section 8.06(viii), (ii) of pre-existing Indebtedness of all Persons
acquired pursuant to this Section 8.06(viii) and/or attaching to all
assets acquired pursuant to Section 8.13(iv) and remaining outstanding
after giving effect to all such Investments and (iii) expended to
affect all acquisitions permitted by Section 8.13(iv) over (II) the
aggregate amount of Net Cash Proceeds from Forced Asset Sales, does
not exceed (x) at any time when the Compliance Leverage Ratio is
greater than .60:1, $30,000,000, (y) at any time when the Compliance
Leverage Ratio is equal to or less than .60:1 but greater than .55:1,
$40,000,000 and (z) at
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any time when the Compliance Leverage Ratio is equal to or less than
.55:1, $50,000,000; and
(I) the Borrower shall have delivered to the Agent a certificate
executed by its chief financial officer certifying (and containing in
reasonable detail the computations showing) that the requirements of
the preceding clause (H) have been satisfied; and
(ix) the Borrower and its Subsidiaries may enter into and perform
their respective obligations under Currency Agreements in the ordinary
course of business and consistent with past practices so long as any such
Currency Agreement is related to income derived from foreign operations of
the Borrower or any such Subsidiary hedging balance sheet items (e.g.,
receivables, payables, loans, other asset and liabilities) from
intercompany trade flows, external purchase commitments and sale
agreements.
8.07 Dividends, etc. Declare or pay any dividends, purchase, redeem,
retire, defease, exchange or otherwise acquire for value any of its capital
stock or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or permit any of its Subsidiaries to
purchase, redeem, retire, defease, exchange or otherwise acquire for value any
capital stock of the Borrower or any warrants, rights or options to acquire such
capital stock or to issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock (all of the foregoing 'Dividends'), except
that the Borrower may:
(i) declare and deliver Dividends payable only in common stock of the
Borrower;
(ii) provided that no Default under Section 9.01 or Event of Default
is then in existence or would result therefrom redeem or retire capital
stock of the Borrower and options to acquire capital stock of the Borrower,
in each case, which are held by employees of the Borrower or any of its
Subsidiaries, upon the death, retirement or resignation of such employees,
in an aggregate amount not to exceed $1,500,000;
(iii) provided that no Default under Section 9.01 or Event of Default
is then in existence or would result therefrom, declare and pay any
Dividends for cash and in an aggregate amount for any calendar year not to
exceed (I) $.08 multiplied by (II) the number of issued and outstanding
shares of Common Stock at the time of the declaration of such Dividend; and
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(iv) at any time that cash Dividends are declared and paid pursuant to
clause (iii) above, declare and pay additional cash Dividends in an
aggregate amount for all Dividends paid pursuant to this clause (iv) equal
to (x) if any such Dividend is declared at a time when the Borrower's
Performance Level is Level IV or Level V, the excess of (a) an amount (it
being understood that such amount shall be zero prior to January 1, 1995)
equal to the product of the following three factors: (I) 1.25 multiplied by
an exponent equal to the number of full calendar years elapsed since
January 1, 1994 as of the date of declaration, (II) $.08 and (III) the
number of issued and outstanding shares of Common Stock at such time, over
(b) the product of the amounts set forth in the preceding clauses (II) and
(III), or (y) if any such Dividend is declared at a time when the
Borrower's Performance Level is Level I, Level II or Level III, 33-1/3% of
Cumulative Consolidated Net Income at the time of such declaration, plus,
in the case of a declaration described in clause (y), the net cash proceeds
from the issuance by the Borrower of its capital stock after the Effective
Date.
8.08 Change in Nature of Business. Make, or permit any of its Subsidiaries
to make, any material change in the nature of its business as carried on by the
Borrower and its Subsidiaries (including Trico and its Subsidiaries) on the
Effective Date.
8.09 Amendments to Documents. Amend, or permit any of its Subsidiaries to
amend, (i) its certificate of incorporation or bylaws (except as contemplated by
the Merger Documents) or (ii) any Merger Document, in each case in any manner
adverse to the interests of the Banks.
8.10 Prepayments, Etc. of Indebtedness. During any period that the
Borrower's performance falls within Level V, except as permitted or required
hereunder with respect to the Loans, prepay, redeem, purchase, exchange, defease
or otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Indebtedness,
other than regularly scheduled or required repayments or redemptions of any
Existing Indebtedness, or amend, modify or change in any manner any term or
condition of any Existing Indebtedness, or permit any of its Subsidiaries to do
any of the foregoing. Notwithstanding the foregoing, nothing herein shall
prohibit the prepayment from time to time by the Borrower's Subsidiaries of any
Indebtedness of such Subsidiaries held by the Borrower.
8.11 Negative Pledge. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement which restricts the
ability of the Borrower or any of its Subsidiaries to grant to the Collateral
Agent for the benefit of the Secured Creditors a valid and perfected first
priority security interest in the Collateral and any other Collateral and any
other asset acquired after the Initial Borrowing Date that is
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required to be pledged or be included in the Collateral pursuant to the terms
hereof and the terms of the other Credit Documents.
8.12 Subsidiary Restrictions. Create or otherwise cause or suffer to exist,
or permit any Subsidiary to, any encumbrance or restriction which prohibits or
otherwise restricts (A) the ability of any Subsidiary to (a) pay dividends or
make other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c)
transfer any of its properties or assets to the Borrower or any Subsidiary or
(B) the ability of the Borrower or any other Subsidiary to create, incur, assume
or suffer to exist any Lien upon its property or assets to secure the
Obligations, other than prohibitions or restrictions existing under or by reason
of: (i) this Agreement and the other Credit Documents; (ii) applicable law;
(iii) customary nonassignment provisions entered into in the ordinary course of
business and consistent with past practices; (iv) any restriction or encumbrance
with respect to a Subsidiary of the Borrower imposed pursuant to an agreement
which has been entered into for the sale or disposition of all or substantially
all of the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement; and (v) Liens permitted under
Section 8.01 and any documents or instruments governing the terms of any
Indebtedness or other obligations secured by any such Liens, provided that such
prohibitions or restrictions apply only to the assets subject to such Liens.
8.13 Acquisitions. Make or permit any of its Subsidiaries to make any
acquisition of all or any part of the property or assets of any Person other
than (i) purchases or other acquisitions of property or assets not included in
clause (iv) below incurred in the ordinary course of business; (ii) pursuant to
purchase money transactions permitted by Section 8.01(iv); (iii) Investments
permitted by Section 8.06; and (iv) acquisitions by the Borrower or a Subsidiary
Guarantor (other than Acq. Sub) of any operating unit or line of business of a
Person in an entirety or assets of a Person consisting of either (x)
substantially all of the material assets of an operating unit or line of
business of such Person or (y) a majority of all of the assets of an operating
unit or line of business of such Person, provided that in the case of this
clause (iv) all following conditions are met:
(A) after giving effect to such acquisition, on a pro forma basis
(taking into account the financial results of the Borrower and its
Subsidiaries and the financial results associated with such assets and all
financing to be issued or incurred in connection with such acquisition) for
the four fiscal quarters ending immediately prior to the date of such
acquisition, no Default or Event of Default shall occur and be continuing,
and the Borrower shall deliver to the Agent a certificate of its chief
financial officer certifying that the condition set forth in this clause
(A) shall have been met with respect to such acquisition, such pro forma
calculation to be prepared in good faith by the Borrower based upon
assumptions deemed reasonable by the chief financial officer of the
Borrower;
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(B) the Borrower or the Subsidiary Guarantor making such acquisition
shall execute an Additional Mortgage in respect of any material plant or
other facility so acquired, as shall be determined by the Agent in its
reasonable judgment, that is not disposed of within 12 months of the date
of such acquisition and shall take any and all other action necessary to
encumber such Person's fee interest in such plant or other facility,
provided however that during such 12 month period the Borrower or such
Subsidiary will not create, incur, assume or suffer to exist, or permit
such Person to create, incur, assume or suffer to exist, any Lien on such
material plant or other facility other than Liens permitted pursuant to
Section 8.01;
(C) at the time of, and after giving effect to such acquisition (x)
the Total Unutilized Revolving Commitment is not less than $25,000,000 and
(y) at any time prior to the date of the delivery of a Leverage Ratio
Reduction Certificate establishing the Compliance Leverage Ratio to be less
than .50:1, the excess of (I) the sum of the amounts (i) expended to effect
all acquisitions pursuant to this Section 8.13(iv), (ii) of pre-existing
Indebtedness attaching to all properties acquired pursuant to this Section
8.13(iv) or of any Person acquired pursuant to Section 8.06(viii) and
remaining outstanding after all such acquisitions and (iii) expended to
effect Investments permitted by Section 8.06(viii) over (II) the aggregate
amount of Net Cash Proceeds from Forced Asset Sales, does not exceed (x) at
any time when the Compliance Leverage Ratio is greater than .60:1,
$30,000,000, (y) at any time when the Compliance Leverage Ratio is equal to
or less than .60:1 but greater than .55:1, $40,000,000 and (z) at any time
when the Compliance Leverage Ratio is equal to or less than .55:1,
$50,000,000; and
(D) the Borrower shall have delivered to the Agent a certificate
executed by its chief financial officer certifying (and containing in
reasonable detail the computations showing) that the requirements of the
foregoing clause (C) have been satisfied.
8.14 Capital Expenditures. (i) Incur Consolidated Capital Expenditures,
provided that the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures during each fiscal year of the Borrower in an amount not in excess
of (x) during the fiscal year ending December 31, 1995, $35,000,000 and (y)
during each fiscal year thereafter, $30,000,000.
(ii) Notwithstanding anything to the contrary contained in clause (i)(y)
above, to the extent that Consolidated Capital Expenditures made by the Borrower
and its Subsidiaries during any fiscal year are less than the amount permitted
to be made for such fiscal year pursuant to clause (i)(y), 100% of such unused
amount may be carried forward to the immediately succeeding fiscal year and
utilized to make Consolidated Capital Expenditures in excess of the amount
permitted above in such following fiscal year.
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SECTION 9. Events of Default. Upon the occurrence of any of the following
specified events (each an 'Event of Default'):
9.01 Payments. The Borrower shall (i) default in the payment when due of
any principal of the Loans or (ii) default, and such default shall continue for
three or more days, in the payment when due of any Unpaid Drawing, any interest
on the Loans or any Fees or any other amounts owing hereunder or under any other
Credit Document; or
9.02 Representations, etc. Any representation, warranty or statement made
by any Credit Party herein or in any other Credit Document or in any statement
or certificate delivered or required to be delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. The Borrower shall (a) default in the due performance or
observance by it of any term, covenant or agreement contained in Sections 7.09,
7.10, 7.11, 7.12 or 8, or (b) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in Section
9.01, 9.02 or clause (a) of this Section 9.03) contained in this Agreement and
such default shall continue unremedied for a period of at least 30 days after
notice to the defaulting party by the Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) The Borrower or any of its
Subsidiaries shall (i) default in any payment with respect to any Indebtedness
(other than the Obligations), and such default shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness, or (ii) default in the observance or performance
of any agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto (and all
grace periods applicable to such observance, performance or condition shall have
expired), or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause any such Indebtedness to become due prior to its stated
maturity; or (b) any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment or redemption or
satisfaction of any Indebtedness secured by a Lien in respect thereof), prior to
the stated maturity thereof, provided that it shall not constitute an Event of
Default pursuant to this Section 9.04 unless the aggregate amount of all
Indebtedness referred to in clauses (a) and (b) above exceeds $3,000,000 at any
one time; or
9.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled 'Bankruptcy,' as now or hereafter in effect, or any successor
thereto (the 'Bankruptcy
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Code'); or an involuntary case is commenced against the Borrower or any of its
Subsidiaries and the petition is not controverted within 20 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any of its Subsidiaries; or
the Borrower or any of its Subsidiaries commences other proceeding under
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Subsidiaries; or
there is commenced against the Borrower or any of its Subsidiaries such
proceeding which remains undismissed for a period of 60 days; or the Borrower or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or order of relief
or other order approving such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers appointment of custodian or the like for it or
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Borrower or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or corporate action is taken by the
Borrower or any of its Subsidiaries for the purpose of effecting of the
foregoing; or
9.06 ERISA. (a) Any ERISA Event shall have occurred with respect to a Plan
of any Credit Party or any of its ERISA Affiliates that could reasonably result
in liability of such Credit Party to the PBGC or to a Plan in an aggregate
amount exceeding $3,000,000 and, within 30 days after the reporting of any such
ERISA Event to the Agent, the Agent shall have notified the Borrower that the
Required Banks have made a determination that, on the basis of such ERISA Event,
there are reasonable grounds (i) for the termination of such Plan by the PBGC,
(ii) for the appointment by the appropriate United States district court of a
trustee to administer such Plan or Plans or (iii) for the imposition of a lien
in favor of a Plan;
(b) any Credit Party or any of its ERISA Affiliates is in default, as
defined in Section 4219(c)(5) of ERISA, with respect to the payment of
Withdrawal Liability, and the amount of such Withdrawal Liability when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Credit Parties and their ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $3,000,000 or required
payments exceeds $500,000 per annum;
(c) any Credit Party or any of their ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Credit Parties and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding
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the plan year in which such reorganization or termination occurs by an amount
exceeding $500,000;
(d) a Prohibited Transaction shall have occurred and any Credit Party has
incurred or is reasonably likely to incur liability in connection therewith in
an amount exceeding $3,000,000;
(e) any judgment or order shall have been rendered against any Credit Party
or any of its ERISA Affiliates with respect to liability under Section 4069 of
ERISA, which judgment or order could reasonably be expected to result in
liability of any Credit Party in an amount exceeding $3,000,000 and either (i)
enforcement proceedings shall have been commenced with respect to such judgment
or order or (ii) there shall be any period of 21 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(f) any Plan of any Credit Party or any of its ERISA Affiliates shall have
an Unfunded Current Liability that is reasonably likely to result in a Material
Adverse Effect; or
9.07 Security Documents. (a) Any Security Document shall cease to be in
full force and effect, or shall cease to give the Collateral Agent the Liens
purported to be created thereby in favor of the Collateral Agent or (b) any
Credit Party shall default in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed pursuant to
such Security Document and such default shall continue unremedied for a period
of 30 days following notice to the defaulting Credit Party from the Collateral
Agent or the Required Secured Creditors; or
9.08 Subsidiary Guaranty. (a) The Subsidiary Guaranty or any material
provision thereof shall cease to be in full force or effect, or any Guarantor or
any Person acting by or on behalf of a Subsidiary Guarantor shall deny or
disaffirm such guarantor's obligations under the Subsidiary Guaranty or (b) any
Guarantor Subsidiary shall default in the due performance or observance of any
material term, covenant or agreement on its part to be performed or observed
pursuant to the Subsidiary Guaranty and such default shall continue unremedied
for a period of 30 days after notice to the defaulting party by the Agent or the
Required Banks; or
9.09 Judgments. One or more judgments or decrees shall be entered against
any Credit Party or any of its Subsidiaries involving a liability (not paid or
fully covered by insurance or otherwise fully satisfied) of $3,000,000 or more
in the aggregate for all such judgments and decrees for the Borrower and its
Subsidiaries) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days from the entry
thereof;
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then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent shall, upon the written request of the
Required Banks, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Bank to
enforce its claims against the Borrower, except as otherwise specifically
provided for in this Agreement (provided that, if an Event of Default specified
in Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment terminated, whereupon the Commitment of each
Bank shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all obligations owing hereunder (including Unpaid Drawings) and thereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) enforce, as Agent (or direct the Collateral
Agent to enforce), any or all of the Liens and security interests created
pursuant to the Security Documents; (iv) terminate any Letter of Credit which
may be terminated in accordance with its terms; and (v) direct the Borrower to
pay (and the Borrower hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 9.05 in respect of the
Borrower, it will pay) to the Agent at the Payment Office such additional
amounts of cash, to be held as security for the Borrower's reimbursement
obligations in respect of Letters of Credit then outstanding equal to the
aggregate Stated Amount of all Letters of Credit then outstanding.
SECTION 10. Definitions. As used herein, the following terms shall have the
meanings herein specified unless the context otherwise requires. Defined terms
in this Agreement shall include in the singular number the plural and in the
plural the singular:
'Acquisition' shall mean (x) the purchase by the Borrower for cash of
outstanding shares of Trico (for a price per share not to exceed the Maximum
Price per share) pursuant to the Offer to Purchase or the Stockholder Agreement
and (y) the Merger.
'Acq. Sub.' shall mean Stant Expansion Corporation, a New York corporation
and Wholly-Owned Subsidiary of the Borrower.
'Additional Mortgage' shall have the meaning provided in Section
8.06(viii)(H).
'Additional Subsidiary Guarantor' shall mean (i) Trico and (ii) each
WhollyOwned Subsidiary (other than a Foreign Subsidiary) of Trico on the Merger
Borrowing Date.
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'Additional Tender Offer Documents' shall mean all amendments and exhibits
to, and documents related to, the Tender Offer Documents filed with the SEC
under the Exchange Act, or distributed to the stockholders of Trico, in each
case to the extent delivered to the Banks after the Effective Date and shall
include any Merger Documents first delivered to the Banks after such date.
'Adjusted Cash Flow' for any fiscal year shall mean Consolidated Net Income
for such fiscal year (after provision for taxes) plus the amount of all net
non-cash charges (including, without limitation, depreciation, deferred tax
expense, non-cash interest expense, write-downs of inventory and other non-cash
charges) that were deducted in arriving at such Consolidated Net Income less (x)
the amount of all net non-cash gains and gains from sales of assets (other than
sales of inventory in the ordinary course of business) that were added in
arriving at such Consolidated Net Income and (y) all other net non-cash credits
included in arriving at such Consolidated Net Income.
'Adjusted Certificate of Deposit Rate' shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing (x)
the most recent weekly average dealer offering rate for negotiable certificates
of deposit with a three-month maturity in the secondary market as published in
the most recent Federal Reserve System publication entitled 'Select Interest
Rates,' published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Agent on the basis of quotations for such
certificates received by it from three certificate of deposit dealers in New
York of recognized standing or, if such quotations are unavailable, then on the
basis of other sources reasonably selected by the Agent, by (y) a percentage
equal to 100% minus the stated maximum rate of all reserve requirements as
specified in Regulation D applicable on such day to a three-month certificate of
deposit of a member bank of the Federal Reserve System in excess of $100,000
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves), plus (2) the annual assessment rate in effect on such day
which is payable by a member of the Bank Insurance Fund maintained by the
Federal Deposit Insurance Corporation (the 'FDIC') classified as
well-capitalized and within supervisory subgroup 'B' (or such higher subgroup
classification as may be in effect from time to time for the Agent) (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss.327.3(d) (or any successor provision) to the FDIC (or any successor)
for the FDIC's (or such successor's) insuring time deposits at offices of such
institution in the United States.
'Adjusted Total Revolving Commitment' shall mean at any time the Total
Revolving Commitment less the aggregate Commitments of all Defaulting Banks.
'Affected Loans' shall have the meaning provided in Section 4.02(B)(b).
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'Affiliate' shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
'Agent' shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Agent appointed pursuant to
Section 11.09.
'Agreement' shall mean this Credit Agreement, as the same may be from time
to time further modified, amended and/or supplemented.
'Allocation Date' shall mean December 6, 1994.
'Anticipated Reinvestment Amount' shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Asset Sale that the Borrower intends to use to purchase,
construct or otherwise acquire Reinvestment Assets.
'Applicable Percentage' shall mean on any date, with respect to Commitment
Commission, Base Rate Loans or Eurodollar Loans, as the case may be, the
applicable percentage set forth below based upon the Performance Level for the
Relevant Test Period as set forth correctly in the most recent financial
statements delivered pursuant to Section 7.13(ii) or (iii), as the case may be:
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<TABLE>
<CAPTION>
Performance Commitment Base Rate Eurodollar
Level Commission Loans Loans
- ------------- ---------- ---------
<S> <C> <C>
Level I 0.25% 0.00% 0.500%
Level II 0.25% 0.00% 0.625%
Level III 0.3125% 0.00% 0.875%
Level IV 0.3125% 0.125% 1.125%
Level V 0.3750% 0.250% 1.250%
</TABLE>
The Applicable Percentage shall be determined for the Relevant Test Period upon
delivery of an officer's certificate of the Borrower to the Banks pursuant to
7.13 (ii) and 7.13 (iii), as the case may be, setting forth the calculation of
the Performance Level. The Applicable Percentage so determined shall apply,
except as set forth below, from the date on which such officer's certificate is
delivered to the Agent to the earlier of (x) the date on which the next
certificate is delivered to the Agent pursuant to 7.13 (ii) or 7.13 (iii), as
the case may be, and (y) the 45th day following the end of the fiscal quarter in
which such first certificate was delivered to the Agent. Notwithstanding
anything to the contrary contained above, the Applicable Percentages shall be
those applicable to Level V so long as no officer's certificate has been
delivered to the Banks pursuant to and in compliance with 7.13 (ii) or 7.13
(iii), as the case may be, setting forth the Performance Level for the Relevant
Test Period (or the financial statements upon which any such calculations are
based have not been delivered), until such a certificate and/or financial
statements are delivered. Notwithstanding the foregoing, the Applicable
Percentage for the period from the Effective Date until the date on which the
Borrower first delivers an officer's certificate pursuant to 7.13 (ii) or 7.13
(iii), as the case may be, shall be those applicable to Level V.
'Asset Sale' shall mean the sale, transfer or other disposition by the
Borrower or any Subsidiary to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset of the Borrower or such
Subsidiary (other than (i) sales, transfers or other dispositions in the
ordinary course of business, (ii) sales, transfers or other dispositions
pursuant to an operating lease and (iii) any Forced Asset Sale).
'Authorized Officer' shall mean any senior officer of the Borrower, as the
case may be, designated as such in writing to the Agent by the Borrower, as the
case may be, in each case to the extent acceptable to the Agent.
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'Bank' shall have the meaning provided in the first paragraph of this
Agreement.
'Bank Default' shall mean (i) the refusal (which has not been retracted) of
a Bank to make available its portion of any incurrence of Loans or to fund its
portion of any unreimbursed payment under Section 2.05(c) or (ii) a Bank having
notified the Agent and/or the Borrower that it does not intend to comply with
the obligations under Section 1.01 or under Section 2.05(c), in the case of
either (i) or (ii) as a result of the appointment of a receiver or conservator
with respect to such Bank at the direction or request of any regulatory agency
or authority.
'Bankruptcy Code' shall have the meaning provided in Section 9.05.
'Base Rate' at any time shall mean the highest of (i) the rate which is 1%
in excess of the Adjusted Certificate of Deposit Rate, (ii) the rate which is
1/2 of 1% in excess of the Federal Funds Effective Rate and (iii) the Prime
Lending Rate.
'Base Rate Loan' shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
'Bessemer' shall mean Bessemer Capital Partners, L.P., a Delaware limited
partnership.
'Borrower' shall have the meaning provided in the first paragraph of this
Agreement.
'Borrowing' shall mean the incurrence of one Type of Loan pursuant to a
single Facility by the Borrower from all of the Banks having Commitments with
respect to such Facility on a pro rata basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
'Brentford Sale' shall mean the sale of certain real property of Grovetidy
Limited pursuant to the Sales Agreement, dated September 20, 1993, between
Grovetidy Limited and Standard Life or pursuant to any other agreement relating
to such real property in the event that such sale is not consummated with
Standard Life.
'Brentford Sale Date' shall mean the date upon which the Borrower or any of
its Subsidiaries receives 100% of the Net Cash Proceeds from the Brentford Sale.
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'Business Day' shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the City of New York a legal holiday or a day on which banking institutions
are authorized by law or other governmental actions to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in U.S. dollar deposits in the interbank Eurodollar market.
'Capital Lease' as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
'Capitalized Lease Obligations' shall mean all obligations under Capital
Leases of the Borrower or any of its Subsidiaries in each case taken at the
amount thereof accounted for as liabilities in accordance with GAAP.
'Cash Equivalents' shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Bank or
(y) any bank whose short-term commercial paper rating from Standard & Poor's
Corporation ('S&P') is at least A-2 or the equivalent thereof or from Moody's
Investors Service, Inc. ('Moody's') is at least P-2 or the equivalent thereof
(any such bank, an 'Approved Bank'), in each case with maturities of not more
than six months from the date of acquisition and (iii) commercial paper issued
by any Bank or Approved Bank or by the parent company of any Bank or Approved
Bank and commercial paper issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating of at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long term unsecured debt
rating of at least A or A2, or the equivalent of each thereof, from S&P or
Moody's, as the case may be, and in each case maturing within six months after
the date of acquisition.
'Cash Proceeds' shall mean, with respect to any Asset Sale, the aggregate
cash payments (including any cash received by way of deferred payment pursuant
to a note receivable issued in connection with such Asset Sale, other than the
portion of such deferred payment constituting interest, but only as and when so
received) received by the Borrower and/or any Subsidiary from such Asset Sale.
'CBABS' shall mean Chemical Bank, Agent Bank Services.
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'CERCLA' shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.
'Change of Control' shall mean (i) Bessemer or its Affiliates shall cease
to beneficially own (within the meaning of Rule 13d-3 of the SEC under the
Exchange Act), directly or indirectly, at least 20% (on a fully diluted basis)
of the total of all equity interests in the Borrower and at least 20% of the
combined voting power of all securities of the Borrower entitle to vote in the
election of directors; (ii) any Person or two or more Persons acting in concert
other than Bessemer or its Affiliates shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the SEC under the Exchange Act), directly
or indirectly, of Voting Stock of the Borrower (or other securities convertible
into such Voting Stock), representing a greater percentage of the combined
voting power of all Voting Stock of the Borrower than the percentage of the
combined voting power of all Voting Stock of the Borrower owned directly, or
indirectly through Bessemer or its Affiliates; or (iii) any Person or two or
more Persons acting in concert other than Bessemer or its Affiliates shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
the power to exercise directly or indirectly, a controlling influence over the
management or policies of the Borrower.
'Chemical' shall mean Chemical Bank in its individual capacity.
'Code' shall mean the Internal Revenue Code of 1986, as amended from time
to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
'Collateral' shall mean all of the Collateral as defined in each of the
Security Documents.
'Collateral Agent' shall mean the Agent acting as collateral agent for the
Secured Creditors pursuant to the Security Documents.
'Collective Bargaining Agreement' shall have the meaning provided in
Section 5.01(d).
'Commitment' shall mean, with respect to each Bank, such Bank's Term
Commitment plus its Revolving Commitment plus in the case of the Swingline
Lender, the Swingline Commitment.
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'Commitment Commission' shall have the meaning provided in Section 3.01(a).
'Compliance Leverage Ratio' shall mean, at any time (x) in the event that
the Borrower has not delivered a Leverage Ratio Reduction Certificate, the
Leverage Ratio in effect at such time pursuant to Section 7.11 (i) or (y) in the
event that the Borrower has delivered a Leverage Ratio Reduction Certificate,
the Compliance Leverage Ratio as established by the Borrower pursuant to the
last Leverage Ratio Reduction Certificate delivered by the Borrower pursuant to
Section 12.16 (as adjusted pursuant to Section 7.11(ii)).
'Consolidated Capital Expenditures' shall mean, with respect to any Person,
all expenditures by such Person which would be capitalized in accordance with
GAAP, including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs which
should be capitalized in accordance with GAAP) and the amount of all Capitalized
Lease Obligations incurred by such Person.
'Consolidated Cash Interest Expense' shall mean, for any period,
Consolidated Interest Expense, but excluding, however, interest expense not
payable in cash, amortization of discount and deferred financing costs.
'Consolidated Current Assets' shall mean, as to any Person at any time, the
current assets (other than cash and Cash Equivalents) of such Person and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
'Consolidated Current Liabilities' shall mean, as to any Person at any
time, the current liabilities of such Person and its Subsidiaries determined on
a consolidated basis in accordance with GAAP, but excluding all Revolving Loans,
all short-term Indebtedness for borrowed money and the current portion of any
long-term Indebtedness of such Person or its Subsidiaries, in each case to the
extent otherwise included therein and any current portion of deferred taxes.
'Consolidated EBIT' shall mean, for any period, (A) the sum, without
duplication of the amounts for such period of (i) Consolidated Net Income, (ii)
provisions for taxes based on income, (iii) Consolidated Interest Expense, (iv)
amortization or write-off of deferred financing costs to the extent deducted in
determining Consolidated Net Income and (v) losses on sales of assets (excluding
sales of inventory in the ordinary course of business) and other extraordinary
losses included in determining Consolidated Net Income less (B) the amount for
such period of gains on sales of assets (excluding sales of inventory in the
ordinary course of business) and other extraordinary gains included in
determining Consolidated Net Income, all as determined on a consolidated basis
in accordance with GAAP.
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'Consolidated EBITDA' shall mean, for any period, the sum of the amounts
for such period of (i) Consolidated EBIT, (ii) depreciation expense, (iii)
amortization expense and (iv) any other non-cash charges, all as determined on a
consolidated basis in accordance with GAAP.
'Consolidated Interest Expense' shall mean, for any period, total interest
expense (including that attributable to Capital Leases in accordance with GAAP)
of the Borrower and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries, including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and net
costs (i.e., costs minus benefits) under Interest Rate Agreements, but
excluding, however, any amortization of deferred financing costs, all as
determined in accordance with GAAP, provided that there shall be excluded all of
the foregoing of any Person accrued prior to the date it becomes a Subsidiary of
the Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries or that Person's assets are acquired by the Borrower or any of its
Subsidiaries.
'Consolidated Net Income' shall mean for any period, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP,
provided that there shall be excluded (i) the income (or loss) of any Person
(other than Subsidiaries of the Borrower) in which any other Person (other than
the Borrower or any of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Borrower or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of the Borrower or is merged into or consolidated with the Borrower or any of
its Subsidiaries or that Person's assets are acquired by the Borrower or any of
its Subsidiaries and (iii) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary.
'Consolidated Net Worth' shall mean at any time for the determination
thereof all amounts which, in conformity with GAAP, would be included under the
caption 'total shareholders' equity' (or any like caption) on a consolidated
balance sheet of the Borrower and its Subsidiaries as at such date, excluding
the cumulative Foreign Exchange Adjustment Account reflected in the consolidated
balance sheet of the Borrower and Subsidiaries.
'Consolidated Total Indebtedness' shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
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'Consolidated Working Capital' shall mean the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
'Contingent Obligations' shall mean as to any Person any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations ('primary obligations') of any other Person (the 'primary
obligor') in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) 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, (d) otherwise to assure or hold harmless the owner of such primary
obligation against loss in respect thereof, provided however that the term
Contingent Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
'Credit Documents' shall mean this Agreement, the Notes, the Security
Documents and the Subsidiary Guaranty.
'Credit Event' shall mean and include the making of a Loan or the issuance
of a Letter of Credit.
'Credit Party' shall mean, at any time, the Borrower and each Subsidiary
Guarantor at such time.
'Cumulative Consolidated Net Income' shall mean, at any time for any
determination thereof, Consolidated Net Income of the Borrower and its
Subsidiaries, determined in accordance with GAAP, for the period (taken as one
accounting period) commencing January 1, 1995 and ending on the last day of the
last fiscal quarter of the Borrower then ended.
'Currency Agreements' shall mean any foreign exchange contract, currency
swap, synthetic cap or other similar agreement designed to protect the Persons
entering into same against fluctuations in currency values.
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'Default' shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
'Defaulting Bank' shall mean any Bank with respect to which a Bank Default
is in effect.
'Dividends' shall have the meaning provided in Section 8.07.
'Domestic Intercompany Loans' shall have the meaning provided in Section
8.06(i).
'Effective Date' shall have the meaning provided in Section 12.10.
'Eligible Transferee' shall mean and include a commercial bank, financial
institution or other 'accredited investor' (as defined in SEC Regulation D), in
each case which is not a direct competitor of the Borrower or engaged in the
same or similar business as the Borrower, or any of its respective Subsidiaries
or is not an Affiliate of any such competitors of the Borrower or any of its
respective Subsidiaries.
'Employment Agreements' shall have the meaning provided in Section 5.01(d).
'Environmental Claims' shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations, proceedings, consent orders or
consent agreements relating in any way to any Environmental Law or any
Environmental Permit (hereinafter 'Claims'), including, without limitation, (a)
any and all Claims by governmental or regulatory authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (b) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or health, safety or the
environment.
'Environmental Law' shall mean any federal, state or local statute, law,
rule, regulation, ordinance, code, binding policy or rule of common law, now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
ss.ss. 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
ss.ss. 6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
ss.ss. 1801 et seq.; the Clean Water Act, 33 U.S.C. ss.ss. 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. ss.ss. 2601 et seq.; the Clean Air Act,
42 U.S.C. ss.ss. 7401 et seq.; the Safe Drinking Water Act,
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42 U.S.C. ss.ss. 300f et seq.; the Atomic Energy Act, 42 U.S.C. ss.ss. 2011 et
seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. ss.ss.
136 et seq.; and the Occupational Safety and Health Act, 29 U.S.C. ss.ss. 651 et
seq.
'Environmental Permits' shall mean all permits, approvals, identification
numbers, licenses and other authorizations required under any applicable
Environmental Law.
'ERISA' shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
'ERISA Affiliate' of any Person shall mean any other Person that is a
member of such Person's controlled group, or under common control with such
Person, (i) within the meaning of Section 414(b) or (c) of the Internal Revenue
Code or (ii) solely for purposes of those sections of the Internal Revenue Code
or ERISA to which Section 414(m) or (o) of the Internal Revenue Code applies,
pursuant to such Section 414(m) or (o).
'ERISA Event' with respect to any person shall mean (a) the occurrence of a
Reportable Event unless the 30-day notice requirement with respect to such event
has been waived by the PBGC; (b) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (C) the cessation of operations at a facility of the
Borrower or any Subsidiary or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (d) the withdrawal by the Borrower or any
Subsidiary or any ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (e) the failure by the Borrower or any Subsidiary or any ERISA
Affiliate to make a payment to a Plan required under Section 302(f)(l) of ERISA;
(f) the adoption of an amendment to a Plan requiring the provision of security
to such Plan, pursuant to Section 307 of ERISA; or (g) the institution by the
PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of ERISA,
other than subsection (a)(4) thereof.
'Eurodollar Loans' shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
'Eurodollar Rate' shall mean with respect to each Interest Period for a
Eurodollar Loan, (i) the offered quotation to first-class banks in the interbank
Eurodollar market by the Agent for dollar deposits of amounts in same day funds
comparable to the outstanding principal amount of the Eurodollar Loan of the
Agent for which an interest rate
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is then being determined with maturities comparable to the Interest Period to be
applicable to such Eurodollar Loan, determined as of 10:00 A.M. (New York time)
on the date which is two Business Days prior to the commencement of such
Interest Period divided (and rounded upward to the next whole multiple of 1/16
of 1%) by (ii) a percentage equal to 100% minus the then stated maximum rate of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
'Event of Default' shall have the meaning provided in Section 9.
'Excess Cash Flow' shall mean, for any fiscal year, the excess of (a) the
sum, without duplication of, (i) Adjusted Cash Flow for such fiscal year, (ii)
cash (if any) generated by the decrease, if any, in Consolidated Working Capital
of the Borrower during such fiscal year and (iii) any net amounts received by
the Borrower and its Subsidiaries in settlement of, or in payment of any
judgments resulting from, legal proceedings with respect to the Borrower or any
such Subsidiary during such fiscal year to the extent not included in
determining Consolidated Net Income, over (b) the sum, without duplication, of
(i) cash, if any, generated by an increase, if any, in Consolidated Working
Capital of the Borrower during such fiscal year, (ii) the aggregate net amount
of all repayments during such period of (A) Capitalized Lease Obligations of the
Borrower and its Subsidiaries (other than any portion thereof allocable to
Consolidated Cash Interest Expense) and (B) all principal payments of long-term
non-revolving Indebtedness, including the current portion thereof (other than
the Loans) of the Borrower and its Subsidiaries made during such fiscal year,
other than in each case any such repayments made with the proceeds of the
incurrence of Indebtedness, (iii) the amount of Consolidated Capital
Expenditures of the Borrower and its Subsidiaries made during such period
(excluding the principal amount of Indebtedness incurred in connection with such
expenditures), (iv) the aggregate amount of all prepayments of Revolving Loans
to the extent accompanied by a corresponding permanent reductions of the Total
Revolving Commitment and all prepayments of the Term Loans pursuant to Section
4.01 or 4.02(A)(b), (v) costs paid in cash during such period in connection with
the establishment of any Interest Rate Agreement with respect to the Loans, (vi)
the aggregate amount of all deferred payments made by the Borrower during such
fiscal year in connection with the acquisition of FEDCO Automotive Components
Company, Inc. and (vii) the aggregate amount of cash Dividends declared and paid
by the Borrower during such fiscal year to the extent permitted to be paid
pursuant to Sections 8.07(iii) and 8.07(iv)(x).
'Excess Cash Flow Percentage' shall mean, at any time a repayment is
required to be made pursuant to Section 4.02(A)(e), the percentage, determined
by reference to the officer's certificate delivered in respect of the fiscal
year then last ended pursuant to Section 7.13(iii), equal to (i) 75%, in the
event the Borrower's Performance
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Level is Level IV or Level V, (ii) 50%, in the event the Borrower's Performance
Level is Level III and (iii) 0%, in the event the Borrower's Performance Level
is Level I or Level II, in each case for the Relevant Test Period ended as of
the end of such last ended fiscal year.
'Existing Borrower Credit Agreement' shall mean the Amended and Restated
Credit Agreement, dated as of July 28, 1993, among the Borrower, the financial
institutions from time to time party thereto and Chemical Bank, as agent.
'Existing Indebtedness' shall have the meaning provided in Section 6.20.
'Existing Indebtedness Agreements' shall have the meaning provided in
Section 5.01(d).
'Existing Letters of Credit' shall have the meaning provided in Section
2.07.
'Existing Trico Credit Agreement' shall mean the Revolving Credit
Agreement, dated as of December 23, 1992, among Trico, the financial
institutions from time to time party thereto and NBD, as agent.
'Existing Trico Credit Facilities' shall mean, collectively, (i) the
Existing Trico Credit Agreement, (ii) the Term Loan Agreement, dated September
24, 1994, among Trico, Trico Technologies Corporation and General Electric
Capital Corporation and (iii) the Loan and Security Agreement, dated December
31, 1991, between Trico and Metlife Capital Credit Corporation.
'Expiration Date' shall mean the earlier to occur of (i) January 31, 1995
and (ii) the date which is 10 Business Days immediately following the date of
expiration (taking into account any extensions thereof) of the Offer to
Purchase.
'Facility' shall mean any of the credit facilities established under this
Agreement, i.e., the Term Facility, the Revolving Facility or the Swingline
Facility.
'Facing Fee' shall have the meaning provided in Section 3.01(c).
'Federal Funds Effective Rate' shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quota-
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tions for such day on such transactions received by the Agent from three Federal
Funds brokers of recognized standing selected by the Agent.
'Fees' shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
'Forced Asset Sale' shall mean the sale, transfer or other disposition by
the Borrower or any Subsidiary to any Person other than the Borrower or any
Subsidiary of the Borrower of any asset acquired pursuant to a Permitted
Transaction to the extent such sale, transfer or other disposition is caused by
any requirement of (i) a Governmental Authority (or is undertaken to secure the
approval thereof after objection or request for additional information) or (ii)
any other Person pursuant to any agreement not to compete in existence prior to
such Permitted Transaction.
'Foreign Intercompany Loans' shall have the meaning provided in Section
8.06(i).
'Foreign Subsidiary' shall mean each Subsidiary of the Borrower (including
Trico and its Subsidiaries) incorporated or organized, and doing business, in a
jurisdiction other than the United States or any state or territory thereof.
'GAAP' shall mean generally accepted accounting principles in the United
States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Sections 7.10, 7.11, 7.12 and 8, including defined terms as used therein, are
subject (to the extent provided therein) to Section 12.07(a).
'Governmental Authority' shall mean 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.
'Guaranties' shall mean the guaranty provided by the Subsidiary Guaranty.
'Guarantor' shall mean each Subsidiary Guarantor.
'Hazardous Materials' shall mean (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, polychlorinated biphenyls and radon gas and
(b) any substances defined as or included in the definition of 'hazardous
substances,' 'hazardous wastes,' 'hazardous materials,' 'extremely hazardous
wastes,' 'restricted hazardous wastes,' 'toxic substances,' 'toxic pollutants,'
'contaminants' or 'pollutants,' or words of similar import, under any applicable
Environmental Law.
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'ICA' shall have the meaning provided in Section 6.07.
'Indebtedness' of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vii) all net obligations of such Person
under Interest Rate Agreements marked to market value and (viii) all Contingent
Obligations of such Person, provided that Indebtedness shall not include trade
payables and accrued expenses, in each case arising in the ordinary course of
business, and provided further that for the purpose of Section 7.11, face amount
of Indebtedness of the type referred to in the preceding clause (iii) shall not
be included in the determination of Consolidated Total Indebtedness.
'Initial Borrowing Date' shall mean the date, on or after the Tender Offer
Closing Date, upon which the initial Borrowing of Loans occurs.
'Initial Subsidiary Guarantor' shall mean each Subsidiary (other than a
Foreign Subsidiary) of the Borrower existing on the Initial Borrowing Date other
than Trico and its Subsidiaries.
'Intercompany Loans' shall have the meaning provided in Section 8.06(i).
'Interest Coverage Ratio' shall mean for any period the ratio of
Consolidated EBITDA for such period to Consolidated Interest Expense for such
period.
'Interest Period' with respect to any Loan shall mean the interest period
applicable thereto, as determined pursuant to Section 1.09.
'Interest Rate Agreement' shall mean any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates.
'Investment' in any Person shall mean any loan or advance to such person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other similar investment in such Person.
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'Leasehold' of any Person means all of the right, title and interest of
such Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
'Letter of Credit' shall have the meaning provided in Section 2.01(a).
'Letter of Credit Fee' shall have the meaning provided in Section 3.01(b).
'Letter of Credit Issuer' shall mean and include NBD or, at the option of
NBD, any affiliate of NBD.
'Letter of Credit Outstandings' shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all unpaid drawings in respect of all
Letters of Credit.
'Letter of Credit Request' shall have the meaning provided in Section
2.03(a).
'Level I' shall mean, as of any date of determination, that the Borrower
maintained (i) for the Relevant Test Period, an Interest Coverage Ratio of not
less than 6.0:1 and (ii) as of the last day of the Relevant Test Period, a
Leverage Ratio of not greater than .30:1.
'Level II' shall mean, as of any date of determination, that (A) the
performance of the Borrower does not meet the requirements of Level I and (B)
the Borrower maintained (i) for the Relevant Test Period, an Interest Coverage
Ratio greater than or equal to 5.0:1 and (ii) as of the last day of the Relevant
Test Period, a Leverage Ratio of less than or equal to .40:1.
'Level III' shall mean, as of any date of determination, that (A) the
performance of the Borrower does not meet the requirements of Level I or Level
II and (B) the Borrower maintained (i) for the Relevant Test Period, an Interest
Coverage Ratio greater than or equal to 4.0:1 and (ii) as of the last day of the
Relevant Test Period, a Leverage Ratio of less than or equal to .50:1.
'Level IV' shall mean, as of any date of determination, that (A) the
performance of the Borrower does not meet the requirements of Level I, Level II
or Level III and (B) the Borrower maintained (i) for the Relevant Test Period,
an Interest Coverage Ratio greater than or equal to 4.0:1 and (ii) as of the
last day of the Relevant Test Period, a Leverage Ratio of less than or equal to
.55:1.
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'Level V' shall mean, as of any date of determination, that the performance
of the Borrower does not meet the requirements of Level I, Level II, Level III
or Level IV.
'Leverage Ratio' shall mean at any time the ratio of (i) Consolidated Total
Indebtedness at such time to (ii) the sum of Consolidated Net Worth at such time
plus Consolidated Total Indebtedness at such time.
'Leverage Ratio Reduction Certificate' shall have the meaning provided in
Section 12.16.
'Lien' shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
'Loan' shall have the meaning provided in Section 1.01.
'Management Agreements' shall have the meaning provided in Section 5.01(d).
'Mandatory Borrowing' shall have the meaning provided in Section 1.01(c).
'Margin Stock' shall have the meaning provided in Regulation U.
'Material Adverse Effect' shall mean a material adverse effect on the
business, property, assets, operations or condition (financial or otherwise) of
the Borrower and its Subsidiaries (including Trico and its Subsidiaries) taken
as a whole.
'Maturity Date' shall mean the date which is the seventh anniversary of the
Initial Borrowing Date.
'Maximum Price Per Share' shall mean $85 or such higher amount agreed to by
the Agent and the Required Banks.
'Merger' shall mean the merger of Trico and Acq. Sub.
'Merger Agreement' shall mean the Agreement and Plan of Merger dated as of
November 8, 1994, between the Borrower, Acq. Sub and Trico.
'Merger Borrowing Date' shall mean the date on which the Merger shall have
been consummated.
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'Merger Documents' shall mean all agreements and instruments, including the
Merger Agreement, the Stockholders Agreement, the Certificate of Merger, all
Proxy Materials and any other document or information sent by the Borrower, Acq.
Sub or Trico to Trico shareholders or filed with the SEC under the Exchange Act
in respect of the Merger, in the form delivered to the Agent pursuant to Section
5.01(h) or 5.02(d), as the case may be, and as the same may be subsequently
amended, modified or supplemented in accordance with the provisions thereof and
hereof.
'Minimum Borrowing Amount' shall mean (i) for Base Rate Loans (other than
Swingline Loans), $1,000,000, (ii) for Eurodollar Loans, $2,500,000 and (iii)
for Swingline Loans, $100,000 and in an integral multiple of $50,000.
'Mortgage' shall have the meaning provided in Section 5.01(l).
'Mortgage Policies' shall have the meaning provided in Section 5.01(l).
'Mortgaged Properties' shall mean and include the Real Properties owned by
the Borrower and/or an Initial Subsidiary Guarantor to the extent designated as
such on Annex V.
'Multiemployer Plan' of any Person shall mean a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its ERISA
Affiliates is making or accruing an obligation to make contributions and each
such plan for the five year period immediately following the latest date on
which such Person or any of its ERISA Affiliates maintained, contributed to or
had an obligation to contribute to such plan.
'Multiple Employer Plan' of any Person shall mean a Single-Employer Plan
that is maintained for the benefit of any of the employees of such Person or any
of its ERISA Affiliates and at least one Person other than such Person or any of
its ERISA Affiliates and each such plan for the five year period immediately
following the latest date on which such Person or any of its ERISA Affiliates
maintained, contributed to or had an obligation to contribute to such plan and
could reasonably be expected to have liability under Section 4064 or 4069 of
ERISA in the event such plan has been or were to be terminated.
'NBD' shall mean NBD Bank, N.A. in its individual capacity.
'Net Cash Proceeds' shall mean, with respect to any Asset Sale, the Cash
Proceeds resulting therefrom net of (i) expenses of sale (including, without
limitation, attorneys', accountants', other advisors' and banking and investment
banking fees, environmental and solvency related fees, all legal, title and
recording tax expenses, commissions, any
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closing, severance and relocation costs and expenses (including, without
limitation, the reasonable costs and expenses related to re-installing any
machinery and equipment moved from a facility prior to such sale, lease,
transfer or other disposition to another facility owned or leased by the
Borrower or its Subsidiaries) incurred in connection with such Asset Sale, and
other fees and expenses incurred, and all Federal, state, provincial, foreign
and local taxes paid or reasonably estimated to be payable, as a consequence of
such Asset Sale and the payment of principal, premium and interest of
Indebtedness secured by the asset which is the subject of the Asset Sale and
required to be, and which is, repaid under the terms thereof as a result of such
Asset Sale), (ii) amounts of any distributions payable to holders of minority
interests in the relevant Person or in the relevant property or assets and (iii)
incremental income taxes paid or payable as a result thereof.
'Non-Defaulting Bank' shall mean each Bank other than a Defaulting Bank.
'Note' shall mean and include each Term Note, each Revolving Note and the
Swingline Note.
'Notice of Borrowing' shall have the meaning provided in Section 1.03.
'Notice of Conversion' shall have the meaning provided in Section 1.06.
'Notice Office' shall mean the office of the Agent at 270 Park Avenue, New
York, New York or such other office as the Agent may designate to the Borrower
from time to time.
'Obligations' shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to the
Agent or any Bank pursuant to the terms of this Agreement or any other Credit
Document.
'Offer to Purchase' shall mean the Offer to Purchase, dated November 14,
1994, issued in connection with the Acquisition, as amended, modified or
supplemented as provided herein.
'Participant' shall have the meaning provided in Section 2.05(a).
'Payment Office' shall mean the office of the Agent at 270 Park Avenue, New
York, New York or such other office as the Agent may designate to the Borrower
from time to time.
'PBGC' shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
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'Percentage' shall mean at any time for each Bank with a Revolving
Commitment, the percentage obtained by dividing such Bank's Revolving Commitment
by the Total Revolving Commitment, provided that if the Total Revolving
Commitment has been terminated, the Percentage of each Bank shall be determined
by dividing such Bank's Revolving Commitment immediately prior to such
termination by the Total Revolving Commitment immediately prior to such
termination.
'Performance Level' shall mean Level I, Level II, Level III, Level IV or
Level V, as the case may be.
'Permitted Liens' shall mean Liens described in Section 8.01.
'Permitted Transaction' shall mean any transaction effected by the Borrower
or any Subsidiary Guarantor pursuant to Section 8.06(viii) or Section 8.13.
'Person' shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
'Plan' shall mean a Single-Employer Plan or a Multiple Employer Plan.
'Pledge Agreement' shall have the meaning provided in Section 5.01(l).
'Pledged Securities' shall mean all the Pledged Securities as defined in
the Pledge Agreement.
'Prime Lending Rate' shall mean the rate which the Agent announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. The Agent may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
'Prohibited Transaction' shall mean a transaction that is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
'Proxy Materials' shall mean all proxy materials, if any, sent by Trico or
on behalf of the Borrower to the stockholders of Trico in connection with the
Merger.
'Real Property' of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
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'Regulation D' shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
'Regulation U' shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
'Reinvestment Assets' shall mean any assets to be employed in the business
of the Borrower and its Subsidiaries as described in Section 8.08.
'Reinvestment Election' shall have the meaning provided in Section
4.02(A)(c).
'Reinvestment Notice' shall mean a written notice signed by an Authorized
Officer of the Borrower stating that the Borrower, in good faith, intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset
Sale to purchase, construct or otherwise acquire Reinvestment Assets as provided
in Section 4.02(A)(c).
'Reinvestment Prepayment Amount' shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Prepayment Date
relating thereto by which (a) the Anticipated Reinvestment Amount in respect of
such Reinvestment Election exceeds (b) the aggregate amount thereof expended by
the Borrower and its Subsidiaries to acquire Reinvestment Assets as provided in
Section 4.02(A)(c).
'Reinvestment Prepayment Date' shall mean, with respect to any Reinvestment
Election, the earliest of (i) the date occurring one year after the date of the
consummation of the Asset Sale relating to such Reinvestment Election and (ii)
the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, proceed with the purchase, construction or other
acquisition of Reinvestment Assets with the related Anticipated Reinvestment
Amount.
'Relevant Test Period' shall mean, at any time, the Test Period ending on
the last day of the then most recently ended fiscal quarter of the Borrower with
respect to which an officer's certificate has been delivered to the Banks
pursuant to Section 7.13(ii) or (iii), as the case may be.
'Replaced Bank' shall have the meaning provided in Section 1.13.
'Replacement Bank' shall have the meaning provided in Section 1.13.
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'Reportable Event' shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30 day notice requirement has not
been waived by the PBGC.
'Required Banks' shall mean Non-Defaulting Banks whose outstanding Term
Loans (or, if prior to the Initial Borrowing Date, Term Commitments), and
Revolving Commitments (or, if after the Total Revolving Commitment has been
terminated, outstanding Revolving Loans) constitute at least 51% of the sum of
(i) the total outstanding Term Loans of Non-Defaulting Banks (or, if prior to
the Initial Borrowing Date, the Total Term Commitment) and (ii) the Total
Revolving Commitment less the aggregate Revolving Commitments of Defaulting
Banks (or, if after the Total Revolving Commitment has been terminated, the
total outstanding Revolving Loans of Non-Defaulting Banks).
'Required Secured Creditors' shall have the meaning provided in the
Security Documents.
'Revolving Commitment' shall mean, with respect to each Bank, the amount
set forth opposite such Bank's name in Annex I hereto directly below the column
entitled 'Revolving Commitment', as the same may be reduced from time to time
pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time to time as a
result of assignments to or from such Bank pursuant to Section 12.04.
'Revolving Facility' shall mean the Facility evidenced by the Total
Revolving Commitment.
'Revolving Loan' shall have the meaning provided in Section 1.01(b).
'Revolving Note' shall have the meaning provided in Section 1.05(a).
'Scheduled Repayment' shall have the meaning provided in Section
4.02(A)(b).
'SEC' shall have the meaning provided in Section 7.13(ii).
'SEC Regulation D' shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
'Secured Creditors' shall have the meaning provided in the Security
Documents.
'Security Agreement' shall have the meaning provided in Section 5.01(l).
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'Security Agreement Collateral' shall mean all 'Collateral' as defined in
the relevant Security Agreement.
'Security Documents' shall mean the Pledge Agreement, the Security
Agreement, each Mortgage and each Additional Mortgage, if any.
'Share Purchase Loans' shall mean the Loans the proceeds of which are
utilized on the date incurred to purchase Shares pursuant to the Offer to
Purchase.
'Shareholders' Agreement' shall have the meaning provided in Section
5.01(d).
'Shares' shall mean shares of common stock of Trico.
'Single-Employer Plan' of any Person shall mean a single-employer plan, as
defined in Section 4001(a)(15) of ERISA, that is maintained for employees of or
contributed to by (or to which there is an obligation to contribute of) such
Person or any of its ERISA Affiliates and no Person other than such Person or
its ERISA Affiliates and each such plan for the five year period immediately
following the latest date on which such Person or any of its ERISA Affiliates
maintained, contributed to or had an obligation to contribute to such plan.
'Special Funding Purchase Letter' shall mean a letter agreement among the
Borrower and each Bank, substantially in the form of Exhibit K hereto.
'Specified Existing Indebtedness' shall mean Existing Indebtedness other
than Existing Indebtedness of Trico UK or any of its Subsidiaries.
'Stated Amount' of each Letter of Credit as of any day shall mean the
maximum available to be drawn thereunder as of such day (regardless of whether
any conditions for drawing could then be met).
'Stockholders Agreement' shall mean the Stockholders Agreement, dated as of
November 8, 1994, among the Borrower, Acq. Sub and the stockholders of Trico
party thereto.
'Subsidiary' of any Person shall mean and include (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
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venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to 'Subsidiary' shall mean a
Subsidiary of the Borrower.
'Subsidiary Assumption Agreement' shall mean a Subsidiary Assumption
Agreement substantially in the form of Exhibit L hereto.
'Subsidiary Guarantor' shall mean (i) each Initial Subsidiary Guarantor,
(ii) on and after the Merger Borrowing Date each Additional Subsidiary Guarantor
and (iii) any other newly created entity that has executed and delivered a
Subsidiary Assumption Agreement pursuant to Section 8.06(viii).
'Subsidiary Guaranty' shall have the meaning provided in Section 5.01(k).
'Swingline Commitment' shall mean $10,000,000.
'Swingline Expiry Date' shall mean the date which is three Business Days
prior to the Maturity Date.
'Swingline Facility' shall mean the Facility evidenced by the Swingline
Commitment.
'Swingline Lender' shall mean NBD, acting in its individual capacity.
'Swingline Loan' shall have the meaning provided in Section 1.01(c).
'Swingline Note' shall have the meaning provided in Section 1.05(a).
'Tax Certificate' shall have the meaning provided in Section 7.13(xv).
'Tax Sharing Agreement' shall have the meaning provided in Section 5.01(d).
'Taxes' shall have the meaning provided in Section 4.04.
'Tender Offer' shall mean the tender offer commenced by Acq. Sub pursuant
to the Offer to Purchase.
'Tender Offer Closing Date' shall mean the date of the closing of the
Tender Offer, which shall also be the date Shares are accepted for payment by
Acq. Sub, provided that if prior to the date of the closing of the Tender Offer
the Borrower has given
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the Agent written notice that it will not utilize the Special Funding Procedures
Letter, the Tender Offer Closing Date shall then be the Initial Borrowing Date.
'Tender Offer Documents' shall mean the Offer to Purchase, the Schedule
14D-1 filed by the Borrower and Acq. Sub, the Schedule 14D-9 filed by Trico with
respect to the Offer to Purchase and all amendments and exhibits thereto and
related documents filed with the SEC or distributed to the stockholders of
Trico, in each case to the extent delivered to the Agent prior to the Effective
Date and shall, in any event, include any Merger Document first delivered to the
Agent during such period.
'Term Commitment' shall mean, with respect to each Bank, the amount set
forth opposite such Bank's name in Annex I hereto directly below the column
entitled 'Term Commitment', as the same may be reduced or terminated pursuant to
Section 3.03.
'Term Facility' shall mean the Facility evidenced by the Total Term
Commitment.
'Term Loan' shall have the meaning provided in Section 1.01(a).
'Term Note' shall have the meaning provided in Section 1.05(a).
'Test Period' shall mean for any determination (i) the period (taken as one
accounting period) from January 1, 1995 through March 31, 1995, (ii) the period
(taken as one accounting period) from January 1, 1995 through June 30, 1995,
(iii) the period (taken as one accounting period) from January 1, 1995 through
September 30, 1995 and (iv) for any determination thereafter the four
consecutive fiscal quarters of the Borrower (taken as one accounting period)
then last ended.
'Total Commitment' shall mean the sum of the Total Term Commitment and the
Total Revolving Commitment.
'Total Revolving Commitment' shall mean the sum of the Revolving
Commitments of each of the Banks.
'Total Term Commitment' shall mean the sum of the Term Commitments of each
of the Banks.
'Total Unutilized Revolving Commitment' shall mean, at any time, (i) the
Total Revolving Commitment at such time less (ii) the sum of the aggregate
principal amount of all Revolving Loans and Swingline Loans at such time plus
the Letter of Credit Outstandings at such time.
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'Transaction Documents' shall mean and include the Tender Offer Documents,
the Additional Tender Offer Documents, the Merger Documents and the Credit
Documents.
'Trico' shall mean Trico Products Corporation, a New York corporation.
'Trico Australia' shall mean Trico Pty. Limited, a corporation organized
under the laws of Australia.
'Trico UK' shall mean Trico Limited, a corporation organized under the laws
of England.
'Type' shall mean any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Base Rate Loan or Eurodollar Loan.
'UCC' shall mean the Uniform Commercial Code.
'Unfunded Current Liability' of any Plan shall mean the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
'Unpaid Drawing' shall have the meaning provided in Section 2.04(a).
'Unutilized Commitment' for any Bank at any time shall mean the excess of
(i) the Commitment of such Bank over (ii) the sum of (x) the aggregate
outstanding principal amount of Revolving Loans made by such Bank plus (y) an
amount equal to such Bank's Percentage, if any, of the Letter of Credit
Outstandings at such time.
'Voting Stock' shall mean with respect to any Person, outstanding capital
stock of such Person ordinarily (and apart from rights exercisable upon the
occurrence of any contingency) having the power to vote in the election of
directors (or persons performing similar functions) of such Person, even though
the right so to vote has been suspended by the happening of such contingency.
'Wholly-Owned Subsidiary' of any Person shall mean any Subsidiary of such
Person to the extent all of the capital stock or other ownership interests in
such Subsidiary, other than directors' qualifying shares, is owned directly or
indirectly by such Person.
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'Withdrawal Liability' has the meaning specified in Part I of Subtitle E of
Part IV of ERISA.
'Written' or 'in writing' shall mean any form of written communication or a
communication by means of telex, facsimile transmission, telegraph or cable.
SECTION 11. The Agent.
11.01 Appointment. Each Bank hereby irrevocably designates and appoints
Chemical as Agent of such Bank to act as specified herein and in the other
Credit Documents, and each such Bank hereby irrevocably authorizes Chemical as
the Agent for such Bank, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the express
conditions contained in this Section 11. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Credit
Documents, nor any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Agent. The provisions
of this Section 11 are solely for the benefit of the Agent, and the Banks, and
no Credit Party shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Agent shall act solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for any Credit Party.
11.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Without limiting the foregoing, Chemical as
Agent may appoint CBABS as its agent to perform the functions of the Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Banks and to perform such other related functions of the Agent
hereunder as are reasonably incidental to such functions. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care except to the extent otherwise required by
Section 11.03.
11.03 Exculpatory Provisions. Neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates (including,
without limitation, CBABS) 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 (except for its or such Person's own
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gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Banks for any recitals, statements, representations or warranties made by
any Subsidiary or any of its respective officers contained in this Agreement,
any other Credit Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any Subsidiary or any of their respective officers to perform
its obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrower or any
Subsidiary. The Agent shall not be responsible to any Bank for the
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Credit Document or for any representations,
warranties, recitals or statements made herein or therein or made in any written
or oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Banks or by or on behalf of the Borrower
to the Agent or any Bank or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Default or Event of
Default.
11.04 Reliance by Agent. Each of the Agent and CBABS shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, 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
Credit Parties), independent accountants and other experts selected by the
Agent. Each of the Agent and CBABS shall be fully justified in failing or
refusing to take any action under this Agreement or any other Credit Document
unless it shall first receive such advice or concurrence of the Required Banks
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Banks 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 Agent and
CBABS shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in accordance with a
request of the Required Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks.
11.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Bank or the Borrower or any other Credit Party
referring to this Agreement, describing such Default or Event of Default and
stating that
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such notice is a 'notice of default'. In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Banks. The Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Banks, provided that unless and until the
Agent shall have received such directions, the 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 Banks.
11.06 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates have made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrower or any Subsidiary, shall be deemed to
constitute any representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower and its Subsidiaries and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Bank also represents that it will, independently and without reliance upon the
Agent or any other Bank, 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 to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower and its Subsidiaries. The Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, operations, assets, property,
financial and other conditions, prospects or creditworthiness of the Borrower or
any Subsidiary which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.07 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such ratably according to their respective 'percentages' as used in
determining Required Banks at such time (with such 'percentages' to be
determined as if there are no Defaulting Banks), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the Agent in its
capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by the Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by the Borrower or any of its
Subsidiaries, provided that no Bank shall be liable
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to the Agent for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or willful
misconduct. If any indemnity furnished to the Agent for any purpose shall, in
the opinion of the Agent, be insufficient or become impaired, the Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section 11.07 shall survive the payment of all Obligations.
11.08 The Agent in its Individual Capacity. The Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower and its Subsidiaries as though the Agent were not the
Agent hereunder. With respect to the Loans made by it and all Obligations owing
to it, the Agent shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not the Agent, and the
terms 'Bank' and 'Banks' shall include the Agent in its individual capacity.
11.09 Successor Agent. The Agent may resign as the Agent upon 20 days'
notice to the Banks. The Required Banks shall appoint from among the Banks a
successor Agent for the Banks subject to prior approval by the Borrower (such
approval not to be unreasonably withheld), whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and the term 'Agent'
shall include such successor agent effective upon its appointment, and the
resigning Agent's rights, powers and duties as the Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement. After the retiring Agent's resignation
hereunder as the Agent, the provisions of this Section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agent in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case) and of the Agent and each of the Banks in
connection with the enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Agent, each Letter of Credit Issuer
and for each of the Banks); (ii) pay and hold each of the Banks harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save each of the Banks and each Letter of
Credit Issuer harmless from and against any and all liabilities with respect to
or resulting from any delay or omission (other than to the extent
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attributable to such Bank or such Letter of Credit Issuer) to pay such taxes;
and (iii) indemnify each Bank and each Letter of Credit Issuer, its officers,
directors, employees, representatives and agents (collectively, the
'Indemnitees') from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not any Bank or Letter of Credit
Issuer is a party thereto) related to the entering into and/or performance of
any Credit Document or the use of the proceeds of any Loans or Letters of Credit
hereunder or the Acquisition or the consummation of any transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified or of any other Indemnitee who is such Person or an affiliate of
such Person).
12.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank wherever located) to or for the credit or the account
of any Credit Party against and on account of the Obligations and liabilities of
such Credit Party to such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations of
such Credit Party purchased by such Bank pursuant to Section 12.06(b), and all
other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such Bank
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered, if to a Credit Party, at the address
specified opposite its signature below or in the other relevant Credit
Documents, as the case may be; if to any Bank, at its address specified for such
Bank on Annex II hereto; or, at such other address as shall be designated by any
party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied, or cabled or
sent by overnight courier, and shall be effective when received.
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12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, provided that no Credit Party may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all the Banks. Each Bank may at any time grant participations in any
of its rights hereunder or under any of the Notes to another financial
institution, provided that in the case of any such participation, (i) the
participant shall not have any rights under this Agreement or any of the other
Credit Documents, including rights of consent, approval or waiver (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) (ii) such Bank's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (iii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) such Bank shall
remain the holder of any such Note for all purposes of this Agreement and (v)
the Borrower, the Swingline Lender, the Letter of Credit Issuer, the Agent and
the other Banks shall continue to deal solely and directly with the assigning
Bank in connection with such Bank's rights and obligations under this Agreement,
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation, except that the participant shall be
entitled to the benefits of Sections 1.10, 1.11, 2.06 and 4.04 of this Agreement
to the extent that such Bank would be entitled to such benefits if the
participation had not been entered into or sold, and, provided further, that no
Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (x) waive any Scheduled Repayment or extend the final scheduled
maturity of any Loan or Note in which such participant is participating (it
being understood that any waiver of the application of any prepayment or the
method of any application of any prepayment to, the amortization of the Term
Loans shall not constitute a waiver of any Scheduled Repayment or an extension
of the final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment, or a mandatory prepayment, shall not constitute a change
in the terms of any Commitment), (ii) release all or substantially all of the
Collateral or release any Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty (in each case except as expressly provided in the Credit
Documents) or (iii) consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, with the consent of the Agent and the
Borrower (each of which consent shall not be unreasonably withheld, provided
that the Borrower may reasonably withhold such consent in the event that such
assignment would
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result in the number of Banks party to this Agreement to be greater than 25),
(x) any Bank may assign all or a portion of its Loans and/or Commitments and its
rights and obligations hereunder to another Bank, and (y) any Bank may assign
all or a portion of its Loans and/ or Commitments and its rights and obligations
hereunder to one or more Eligible Transferees (including one or more Banks). No
assignment pursuant to the immediately preceding sentence shall to the extent
such assignment represents an assignment to an institution other than one or
more Banks hereunder, be in an aggregate amount less than $5,000,000 unless the
entire Commitment of the assigning Bank is so assigned. If any Bank so sells or
assigns all or a part of its rights hereunder or under the Notes, any reference
in this Agreement or the Notes to such assigning Bank shall thereafter refer to
such Bank and to the respective assignee to the extent of their respective
interests and the respective assignee shall have, to the extent of such
assignment (unless otherwise provided therein), the same rights and benefits as
it would if it were such assigning Bank. Each assignment pursuant to this
Section 12.04(b) shall be effected by the assigning Bank and the assignee Bank
executing an Assignment Agreement substantially in the form of Exhibit J
(appropriately completed). In the event of any such assignment to a commercial
bank or other financial institution not previously a Bank hereunder, either the
assigning or the assignee Bank shall pay to the Agent a nonrefundable assignment
fee of $3,000, and at the time of any assignment pursuant to this Section
12.04(b), (i) Annex I shall be deemed to be amended to reflect the Commitment of
the respective assignee (which shall result in a direct reduction to the
Commitment of the assigning Bank) and of the other Banks, and (ii) if any such
assignment occurs after the Initial Borrowing Date, the Borrower will issue new
Notes to the respective assignee and to the assigning Bank in conformity with
the requirements of Section 1.05. Each Bank and the Borrower agree to execute
such documents (including, without limitation, amendments to this Agreement and
the other Credit Documents) as shall be necessary to effect the foregoing.
Nothing in this clause (b) shall prevent or prohibit any Bank from pledging its
Notes or Loans to a Federal Reserve Bank in support of borrowings made by such
Bank from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 12.04, no transfer
or assignment of the interests or obligations of any Bank hereunder or any grant
of participation therein shall be permitted if such transfer, assignment or
grant would require the Borrower to file a registration statement with the SEC
or to qualify the Loans under the 'Blue Sky' laws of any State.
(d) Each Bank initially party to this Agreement hereby represents, and each
Person that became a Bank pursuant to an assignment permitted by this Section 12
will, upon its becoming party to this Agreement, represent that it is a
commercial lender, other financial institution or other 'accredited' investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account in the
ordinary course of such business, provided that subject to the preceding clauses
(a) and (b), the disposition of any promissory notes or other evidences
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of or interests in Indebtedness held by such Bank shall at all times be within
its exclusive control.
(e) The Agent shall maintain at its Notice Office a copy of each Assignment
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and the Commitment of, and principal amount
of the Loans owing to, each Bank from time to time (the 'Register'). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Bank at any reasonable time and from time to time upon reasonable prior
notice.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Agent or any Bank in exercising any right, power or privilege hereunder or
under any other Credit Document and no course of dealing between any Credit
Party and the Agent or any Bank shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Agent or any Bank would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Agent or the Banks to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Agent agrees that promptly after its
receipt of each payment from or on behalf of any Credit Party in respect of any
Obligations, it shall distribute such payment to the Banks (other than any Bank
that has expressly waived its right to receive its pro rata share thereof) pro
rata based upon their respective shares, if any, of the Obligations with respect
to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such
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amount as shall result in a proportional participation by all of the Banks in
such amount, provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by the Borrower
to the Banks), provided that except as otherwise specifically provided herein,
all computations determining compliance with Section 8, including definitions
used therein, shall utilize accounting principles and policies in effect at the
time of the preparation of, and in conformity with those used to prepare, the
December 31, 1993 historical financial statements of the Borrower delivered to
the Banks pursuant to Section 6.10(b). At any time the computations determining
compliance with Section 8 utilize accounting principles different from those
utilized in the financial statements furnished to the Banks pursuant to Section
7.01, such financial statements shall be accompanied by reconciliation
work-sheets.
(b) All computations of (x) interest on Eurodollar Loans hereunder shall be
made on the actual number of days elapsed over a year of 360 days and (y)
interest on Base Rate Loans and Fees hereunder shall be made on the actual
number of days elapsed over a year of 365 or 366 days, as the case may be.
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCEPT THE
MORTGAGES SHALL BE GOVERNED BY THE LAW OF THE STATE PROVIDED IN THE RESPECTIVE
MORTGAGE). Any legal action or proceeding with respect to this Agreement or any
other Credit Document may be brought in the courts of the State of New York or
of the United States for the Southern District of New York, and, by execution
and delivery of this Agreement, the Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Borrower hereby irrevocably
designates, appoints and empowers CT Corporation System, with offices on the
date hereof at 1633 Broadway, New York, New York 10019, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
and in respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding. If
for any reason such designee, appointee and agent shall cease to be available to
act as such, the Borrower agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this provision
satisfactory to the agent under this Agreement. The Borrower hereby further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of
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copies thereof by registered or certified mail, postage prepaid, to each Credit
Party located outside New York City and by hand delivery to each Credit Party
located within New York City, at its address for notices pursuant to Section
12.03, such service to become effective 30 days after such mailing. Nothing
herein shall affect the right of the Agent, any Bank to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Agent.
12.10 Effectiveness. This Agreement shall become effective on the date (the
'Effective Date') on which each of the Borrower and each of the Banks shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent at the Payment Office of the Agent or, in the
case of the Banks, shall have given to the Agent telephonic (confirmed in
writing), written telex or facsimile transmission notice (actually received) at
such office that the same has been signed and mailed to it.
12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the Borrower and the Required Banks, provided that no such change,
waiver, discharge or termination shall, without the consent of each Bank (other
than a Defaulting Bank) affected thereby, (i) waive any Scheduled Repayment,
extend the Maturity Date or modify Section
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2.01(b)(ii) (it being understood that any waiver of the application of any
prepayment of or the method of application of any prepayment to the amortization
of, the Loans shall not constitute a waiver of any such Scheduled Repayment or
an extension of the Maturity Date), or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or Fees thereon, or reduce the
principal amount thereof, or increase the Commitment of any Bank over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not
constitute a change in the terms of any Commitment of any Bank), (ii) release
all or substantially all of the Collateral or release any Subsidiary Guarantor
from the Subsidiary Guaranty (in each case except as expressly provided in the
Credit Documents), (iii) amend, modify or waive any provision of this Section
12.12, or Section 9.01, 11.07, 12.01, 12.02, 12.04, 12.06, 12.07(b) or 12.15,
(iv) reduce the percentage specified in, or otherwise modify, the definition of
Required Banks or (v) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement, provided further that
notwithstanding the requirements contained in this Section 12.12, Section 7.11
may be amended by the Borrower at any time pursuant to the terms and conditions
contained in Section 12.16. No provision of Section 2 or 11 may be amended
without the consent of the Letter of Credit Issuer or the Agent, respectively.
12.13 Survival. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.07 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans at, to
or for the account of any branch office, subsidiary or affiliate of such Bank,
provided that the Borrower shall not be responsible for costs arising under
Section 1.10, 2.06 or 4.04 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Bank prior to such transfer.
12.15 Confidentiality. Subject to Section 12.04, the Banks shall hold all
non-public information obtained pursuant to the requirements of this Agreement
which has been identified as such by the Borrower in accordance with its
customary procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure reasonably required by any bona fide transferee or participant in
connection with the contemplated transfer of any Loans or participation therein
(provided, that each such prospective transferee and/or participant shall
execute an agreement for the benefit of the Borrower with such prospective
transferor Bank containing provisions substantially identical to those contained
in this Section 12.15) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process, provided that, unless
specifically prohibited by applicable law or court order, each Bank shall notify
the Borrower of any request by any governmental agency or repre-
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sentative thereof (other than any such request in connection with an examination
of the financial condition of such Bank by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such
information, and provided further, that in no event shall any Bank be obligated
or required to return any materials furnished by the Borrower or any Subsidiary.
12.16 Leverage Ratio Reduction Certificate. At any time, so long as no
Default or Event of Default shall exist at such time, the Borrower shall be
permitted to deliver to the Banks a certificate, signed by the chief financial
officer of the Borrower (a 'Leverage Ratio Reduction Certificate'), (i) stating
the Compliance Leverage Ratio for the most recently ended fiscal quarter, (ii)
setting forth the calculations required to establish such Compliance Leverage
Ratio, (iii) establishing the Compliance Leverage Ratio to be applicable on and
after the date of such certificate, provided that such Compliance Leverage Ratio
shall be less than the Compliance Leverage Ratio then in effect, and (iv)
stating that on and after the date of the delivery of such Leverage Ratio
Reduction Certificate, the Compliance Leverage Ratio shall be set at the ratio
contained in such Leverage Rate Reduction Certificate (as adjusted pursuant to
Section 7.11(ii)).
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
Address:
Stant Corporation
By_________________________________
Title:
Chemical Bank,
Individually and as Agent
By_________________________________
Title:
BANK OF AMERICA ILLINOIS
By_________________________________
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By_________________________________
Title:
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NBD BANK
By_________________________________
Title:
COMERICA BANK
By_________________________________
Title:
HARRIS TRUST AND SAVINGS BANK
By_________________________________
Title:
SOCIETE GENERALE
By_________________________________
Title:
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<PAGE>
CREDIT LYONNAIS, CHICAGO
BRANCH
By_________________________________
Title:
CREDIT LYONNAIS, CAYMAN ISLAND
BRANCH
By_________________________________
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY
By_________________________________
Title:
NATIONAL CITY BANK
By_________________________________
Title:
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<PAGE>
MELLON BANK, N.A.
By_________________________________
Title:
THE FIRST NATIONAL BANK OF
BOSTON
By_________________________________
Title:
UNITED STATES NATIONAL BANK OF
OREGON
By_________________________________
Title:
BANQUE PARIBAS, CHICAGO BRANCH
By_________________________________
Title:
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<PAGE>
BOATMEN'S NATIONAL BANK OF ST.
LOUIS
By_________________________________
Title:
THE BANK OF TOKYO TRUST
COMPANY
By_________________________________
Title:
STAR BANK, N.A.
By_________________________________
Title:
-114-
December 13, 1994
FOR IMMEDIATE RELEASE
PRESS RELEASE
STANT CORPORATION
ANNOUNCES COMPLETION OF
TENDER OFFER FOR TRICO COMMON STOCK
Richmond, Indiana, December 13, 1994 -- Stant Corporation (NASDAQ:STNT)
announced today that the cash tender offer by a Stant subsidiary for all
outstanding shares of common stock of Trico Products Corporation (NASDAQ:TRCO)
at $85.00 per share expired at Midnight yesterday and that all shares validly
tendered pursuant to the offer have been accepted for payment. According to the
Depositary, approximately 1,759,250 shares of common stock of Trico
(representing approximately 93.5% of the outstanding shares) were tendered.
Payment for validly tendered shares will be made through Harris Trust Company of
New York, the Depositary, in accordance with the terms of the offer.
Since more than 90% of the outstanding Trico common stock was tendered
pursuant to the offer, Stant expects to consummate the proposed merger of a
Stant subsidiary into Trico as soon as practicable without a vote of
stockholders as permitted under New York law.
Stant Corporation, headquartered in Richmond, Indiana, is a
manufacturer of automotive parts including closure caps, fuel and vapor control
valves, engine thermostats, hose clamps, automotive tools, grease guns and
automotive fittings, windshield wiper blades, heater parts and power steering
hoses and units. Trico, headquartered in Buffalo, New York, is the world's
largest manufacturer of windshield wiping systems.
Contact: Thomas F. Plocinik
Stant Corporation
(317) 962-6655
AMENDMENT,dated as of December 12, 1994 (this 'Amendment'),
to the AGREEMENT and PLAN OF MERGER (the 'Merger Agreement') dated as
of November 8, 1994, by and among STANT CORPORATION, a Delaware
corporation ('Purchaser'), STANT EXPANSION CORPORATION, a New York
corporation and a wholly-owned subsidiary of Purchaser ('Sub'), and
TRICO PRODUCTS CORPORATION, a New York corporation (the 'Company').
W I T N E S S E T H
WHEREAS, the Purchaser, Sub and Company desire to amend
the Merger Agreement;
NOW, THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. Section 9.3(c) of the Merger
Agreement is hereby amended and restated in its entirety as
follows:
'(c) On or before the date of this Merger Agreement, the Board
of Directors of the Company (or, if appropriate, any committee
administering the Stock Option Plans (as defined below)) has
adopted such resolutions or taken such other actions as are
required to provide that (i) each outstanding stock option to
purchase shares of Company Common Stock (a 'Stock Option')
heretofore granted under any stock option, stock appreciation
rights or stock purchase plan, program or arrangement of the
Company (collectively, the 'Stock Option Plans') outstanding
immediately prior to the consummation of the Offer, whether or
not then exercisable, shall be canceled immediately after the
date of consummation of the Offer in exchange for an amount in
cash, payable at the time of such cancelation, equal to the
product of (y) the number of shares of Company Common Stock
subject to such Stock Option immediately prior to the date of
consummation of
<PAGE>
2
the Offer and (z) the excess of the price per share to be paid
in the Offer over the per share exercise price of such Stock
Option and (ii) each stock appreciation right ('SAR') granted
under the Stock Option Plans outstanding immediately prior to
the date of consummation of the Offer shall be canceled
immediately after the date of consummation of the Offer in
exchange for an amount of cash, payable at the time of such
cancelation, equal to the product of (y) the number of shares
of Company Common Stock covered by such SAR and (z) the excess
of the price per share to be paid in the Offer over the
appreciation base per share of such SAR; provided, however,
that no such cash payment shall be made with respect to any
SAR which is related to a Stock Option with respect to which
such a cash payment has been made. Any Stock Option or SAR not
canceled in accordance with this paragraph (c) immediately
after the date of consummation of the Offer, shall be canceled
at the Effective Date in exchange for an amount in cash,
payable at the Effective Date, equal to the amount which would
have been paid had such Stock Option or SAR been canceled
immediately prior to the consummation of the Offer. A listing
of all outstanding Stock Options and SARs specifying the date
such Stock Options or SARs become exercisable (and the date
upon which they expire) and their exercise price and
appreciation base, respectively, is set forth on the
Disclosure Schedule. In the event that the Company does not
have sufficient cash available to make payments in exchange of
any Stock Option or SAR, Purchaser will, when and only if the
Offer is consummated, make available to the Company cash
sufficient to make such purchases.'
SECTION 2. Miscellaneous. Except as amended hereby,
the Merger Agreement shall remain in full force and effect. This
Amendment may be executed in two or more counterparts, each of
which shall be an original, but which together shall constitute a
single agreement. This Amendment shall be governed in all
respects, including validity, interpretation and effect, by the
<PAGE>
3
laws of the State of New York (without giving effect to the provisions hereof
relating to conflicts of law).
IN WITNESS WHEREOF, Purchaser, Sub and the Company have caused
this Amendment to be signed by their respective officers thereunder duly
authorized all as of the date first written above.
STANT CORPORATION,
By............................
Name:
Title
STANT EXPANSION CORPORATION,
By.............................
Name:
Title
TRICO PRODUCTS CORPORATION,
By..............................
Name:
Title
