EXECUTION COPY
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
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CREDIT AGREEMENT
dated as of August 2, 2002
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$400,000,000
Senior Secured Credit Facility
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.,
as Sole Lead Arranger and Sole Book Runner
CITICORP USA, INC.,
as Administrative Agent
THE BANK OF NOVA SCOTIA,
as Syndication Agent
FLEET NATIONAL BANK and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Co-Documentation Agents
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS...............................................................................1
1.1. Defined Terms.............................................................................1
1.2. Rules of Construction....................................................................33
SECTION 2. TERM LOANS...............................................................................34
2.1. Term Loans...............................................................................34
2.2. Repayment of Term Loans..................................................................36
2.3. Use of Proceeds..........................................................................36
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS.........................................36
3.1. Revolving Credit Commitments.............................................................36
3.2. Commitment Fee...........................................................................37
3.3. Proceeds of Revolving Credit Loans.......................................................37
3.4. Swing Line Commitment....................................................................38
3.5. Issuance of Letters of Credit............................................................39
3.6. Participating Interests..................................................................40
3.7. Procedure for Opening Letters of Credit..................................................40
3.8. Payments in Respect of Letters of Credit.................................................40
3.9. Letter of Credit Fees....................................................................41
3.10. Letter of Credit Reserves................................................................42
3.11. Further Assurances.......................................................................43
3.12. Obligations Absolute.....................................................................43
3.13. Participations...........................................................................44
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS...................................................44
4.1. Procedure for Borrowing..................................................................44
4.2. Conversion and Continuation Options......................................................45
4.3. Changes of Commitment Amounts............................................................46
4.4. Optional and Mandatory Prepayments; Repayments of Term Loans.............................47
4.5. Interest Rates and Payment Dates.........................................................52
4.6. Computation of Interest and Fees.........................................................52
4.7. Certain Fees.............................................................................53
4.8. Inability to Determine Interest Rate.....................................................53
4.9. Pro Rata Treatment and Payments..........................................................54
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4.10. Illegality...............................................................................56
4.11. Requirements of Law......................................................................57
4.12. Indemnity................................................................................61
4.13. Repayment of Loans; Evidence of Debt.....................................................61
4.14. Replacement of Lenders...................................................................63
4.15. Aggregate Maximum Loans Borrowed.........................................................63
SECTION 5. REPRESENTATIONS AND WARRANTIES...........................................................63
5.1. Financial Condition......................................................................63
5.2. No Change................................................................................64
5.3. Existence; Compliance with Law...........................................................65
5.4. Power; Authorization.....................................................................65
5.5. Enforceable Obligations..................................................................66
5.6. No Legal Bar.............................................................................66
5.7. No Material Litigation...................................................................66
5.8. Investment Company Act...................................................................66
5.9. Federal Regulation.......................................................................66
5.10. No Default...............................................................................67
5.11. Taxes....................................................................................67
5.12. Subsidiaries.............................................................................67
5.13. Ownership of Property; Liens.............................................................68
5.14. ERISA....................................................................................68
5.15. Collateral Documents.....................................................................68
5.16. Copyrights, Patents, Permits, Trademarks and Licenses....................................69
5.17. Environmental Matters....................................................................70
5.18. Accuracy and Completeness of Information.................................................71
5.19. Labor Matters............................................................................71
5.20. Solvency.................................................................................72
5.21. Use of Proceeds..........................................................................72
5.22. Canadian Property........................................................................72
SECTION 6. CONDITIONS PRECEDENT.....................................................................72
6.1. Conditions to Initial Loans and Letters of Credit........................................72
6.2. Conditions to All Loans and Letters of Credit............................................76
6.3. Permitted Acquisitions...................................................................77
SECTION 7. AFFIRMATIVE COVENANTS....................................................................78
7.1. Financial Statements.....................................................................78
7.2. Certificates; Other Information..........................................................80
7.3. Payment of Obligations...................................................................81
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7.4. Conduct of Business and Maintenance of Existence.........................................81
7.5. Maintenance of Property; Insurance.......................................................82
7.6. Inspection of Property; Books and Records; Discussions...................................82
7.7. Notices..................................................................................83
7.8. Environmental Laws.......................................................................84
7.9. Additional Collateral and Guarantees.....................................................85
7.10. Post-Closing Matters.....................................................................86
7.11. Compliance with Law......................................................................86
7.12. Security Interests; Further Assurances...................................................86
7.13. Required Interest Rate Agreements........................................................87
7.14. Use of Proceeds and Letters of Credit....................................................87
7.15. Taxes....................................................................................87
7.16. Existing Senior Notes....................................................................87
SECTION 8. NEGATIVE COVENANTS.......................................................................88
8.1. Indebtedness.............................................................................88
8.2. Limitation on Liens......................................................................90
8.3. Limitation on Contingent Obligations.....................................................93
8.4. Prohibition of Fundamental Changes.......................................................94
8.5. Prohibition on Sale of Assets............................................................94
8.6. Limitation on Investments................................................................97
8.7. Capital Expenditures.....................................................................99
8.8. Hedge Agreements........................................................................100
8.9. Financial Covenants.....................................................................100
8.10. Clauses Restricting Subsidiary Distributions............................................101
8.11. Limitation on Dividends.................................................................102
8.12. Transactions with Affiliates............................................................102
8.13. Limitation on Changes in Fiscal Year....................................................103
8.14. Limitation on Lines of Business.........................................................103
8.15. Amendments to Certain Documents.........................................................103
8.16. Limitation on Prepayments and Amendments of Certain Debt; Refinancing of
Existing Senior Notes...............................................................103
8.17. No Further Negative Pledge..............................................................104
SECTION 9. EVENTS OF DEFAULT.......................................................................104
SECTION 10. THE AGENTS AND THE ISSUING LENDER.......................................................107
10.1. Appointment.............................................................................107
10.2. Delegation of Duties....................................................................108
10.3. Exculpatory Provisions..................................................................108
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10.4. Reliance by Agents......................................................................109
10.5. Notice of Default.......................................................................109
10.6. Non-Reliance on Agents and Other Lenders................................................109
10.7. Indemnification.........................................................................110
10.8. Agent in Its Individual Capacity........................................................110
10.9. Successor Administrative Agent..........................................................111
10.10. Issuing Lender as Issuer of Letters of Credit...........................................111
10.11. Other Agents............................................................................111
10.12. Parallel Debt...........................................................................112
SECTION 11. MISCELLANEOUS...........................................................................113
11.1. Amendments and Waivers..................................................................113
11.2. Notices.................................................................................115
11.3. No Waiver; Cumulative Remedies..........................................................117
11.4. Survival of Representations and Warranties..............................................117
11.5. Indemnification; Payment of Expenses and Taxes..........................................117
11.6. Successors and Assigns; Participations and Assignments..................................119
11.7. Adjustments; Set-off....................................................................123
11.8. Counterparts............................................................................124
11.9. Governing Law; Third Party Rights.......................................................124
11.10. Submission to Jurisdiction; Waivers.....................................................124
11.11. [Reserved]..............................................................................125
11.12. Interest................................................................................125
11.13. Severability............................................................................126
11.14. Integration.............................................................................126
11.15. Acknowledgments.........................................................................126
SECTION 12. COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS..................................127
12.1. Collateral Account......................................................................127
12.2. Proceeds of Destruction, Taking and Collateral Dispositions.............................128
12.3. Application of Proceeds.................................................................129
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SCHEDULES
Schedule I List of Addresses for Notices; Lending Offices;
Commitment Amounts
Schedule II Pricing Grid
Schedule III Subsidiary Guarantors
Schedule 5.1(c) Certain Financial Items
Schedule 5.3 Existence; Compliance with Law
Schedule 5.7 Litigation
Schedule 5.10 No Default
Schedule 5.11 Taxes
Schedule 5.12 Subsidiaries
Schedule 5.15(b) UCC and Other Necessary Filings
Schedule 5.17 Environmental Matters
Schedule 7.9 Subsidiaries Exempt from Subsection 7.9
Schedule 7.10 Post-Closing Matters
Schedule 8.1(a) Existing Indebtedness
Schedule 8.2(h) Existing Liens
Schedule 8.3(d) Existing Contingent Obligations
Schedule 8.5 Dispositions
Schedule 8.6 Existing Investments
Schedule 8.12 Existing Affiliate Transactions
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B-1 Form of Tranche A Term Note
Exhibit B-2 Form of Tranche B Term Note
Exhibit C Form of Swing Line Note
Exhibit D Form of Assignment and Acceptance
Exhibit E-1 Form of U.S. Collateral Agreement
Exhibit E-2A Form of Canadian-Ontario Collateral Agreement
Exhibit E-2B Form of Canadian-Quebec Collateral Agreement
Exhibit F Form of L/C Participation Certificate
Exhibit G Form of Non-Bank Certificate
Exhibit H-1 Form of Subsidiary Guarantee
Exhibit H-2 Form of Parent Guarantee
Exhibit I Form of Swing Line Loan Participation Certificate
Exhibit J-1 Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Exhibit J-2 Form of Opinion of Foreign Counsel
Exhibit J-3 Form of Opinion of Domestic Local Counsel
Exhibit K Form of Closing Certificate
Exhibit L Form of Solvency Certificate
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Exhibit M-1 Form of Control Agreement - Deposit Account
Exhibit M-2 Form of Control Agreement - Securities Account
Exhibit N Form of Perfection Certificate
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CREDIT AGREEMENT, dated as of August 2, 2002, among ▇▇▇▇▇ NORTH
AMERICA, INC., a Delaware corporation ("Borrower"), the Guarantors named herein,
the several lenders from time to time party hereto (the "Lenders") and CITICORP
USA, INC. as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S S E T H :
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WHEREAS, Borrower will (1) repay both the existing $42.75 million 7.84%
Series A Senior Notes due 2006 and the $57.25 million 8.05% Series B Senior
Notes due 2009 (including any prepayment fees) (together, the "Existing Senior
Notes"), on or about September 4, 2002; (2) repay outstanding loans under the
Existing Senior Credit Facility (as defined herein); and (3) provide funds for
working capital needs (collectively, the "Transactions");
WHEREAS, to finance the Transactions and to pay fees and expenses in
connection therewith, Borrower has requested that the Lenders establish the
credit facilities set forth herein;
NOW, THEREFORE, Borrower, the Administrative Agent and the Lenders
agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms defined in the
caption hereto shall have the meanings set forth therein, and the following
terms have the following meanings:
"Accepting Tranche B Lenders": as defined in subsection 4.4(e).
"Acquisition": any transaction or series of related transactions for
(a) the direct or indirect (i) acquisition of all or substantially all of the
Property of a Person, or of any business or division of a Person or (ii)
acquisition of in excess of 50% of the Capital Stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any Person to
become a Subsidiary of such Person, or (b) a merger or consolidation or any
other combination with another Person.
"Acquisition Consideration": the purchase consideration for any
Acquisition and all other payments made and liabilities incurred by any Credit
Party or any of its Subsidiaries in exchange for, or as part of, or in
connection with any Acquisition, whether paid in cash or by exchange of Capital
Stock or of assets or otherwise and whether payable on or prior
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to the consummation of such Acquisition or deferred for payment at any future
time, whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments and liabilities representing the
purchase price and any assumptions of liabilities, "earn-outs" and other Profit
Payment Agreements, consulting agreements, service agreements and
non-competition agreements and other liabilities of every type and description.
"Additional Term Loan B Facility": as defined in subsection 2.1(c).
"Adjustment Date": as defined in the definition of Applicable Margin.
"Administrative Agent": as defined in the Preamble hereto.
"Affiliate": of any Person (a) any Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by or is under
common control with such Person, or (b) any Person who is a director or officer
(i) of such Person, (ii) of any Subsidiary of such Person or (iii) of any Person
described in clause (a) above. For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (x) to vote 10% or more of the
securities having ordinary voting power for the election of directors of such
Person, whether by ownership of securities, contract, proxy or otherwise, or (y)
to direct or cause the direction of the management and policies of such Person,
whether by ownership of securities, contract, proxy or otherwise.
"Agents": the collective reference to the Administrative Agent, the
Syndication Agent, the Sole Lead Arranger and any other agent for the Lenders
designated in connection with the syndication and in accordance with Section 10
by the Administrative Agent with respect to the Credit Documents in a written
notice to Borrower, including the Co-Documentation Agent.
"Agreement": this Credit Agreement, as amended, supplemented or
modified from time to time.
"Alternate Base Rate": for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall be
equal at all times to the highest of the following:
1. the rate of interest announced publicly by Citibank N.A. in New
York, New York, from time to time, as Citibank N.A.'s base rate;
2. the sum (adjusted to the nearest 0.25% or, if there is no nearest
0.25%, to the next higher 0.25%) of (i) 0.5% per annum, (ii) the rate per
annum obtained by dividing (A) the latest three-week moving average of
secondary market morning offer-
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ing rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average being
determined weekly on each Monday (or, if any such day is not a Business Day,
on the next succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank N.A. on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve Bank
of New York or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank N.A. from three New
York certificate of deposit dealers of recognized standing selected by
Citibank N.A., by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for Citibank N.A. in
respect of liabilities consisting of or including (among other liabilities)
three-month U.S. dollar nonpersonal time deposits in the United States and
(iii) the average during such three-week period of the maximum annual
assessment rates estimated by Citibank N.A. for determining the then current
annual assessment payable by Citibank N.A. to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits in the United
States; and
3. 0.5% per annum plus the Federal Funds Rate.
"Alternate Base Rate Loans": Loans at such time as they are made and/or
being maintained at a rate of interest based upon the Alternate Base Rate.
"Applicable Acquisition Documents": as defined in subsection 6.3(iv).
"Applicable Margin": for Tranche A Term Loans, Tranche B Term Loans,
Revolving Credit Loans and Swing Line Loans of the Types set forth below, the
rate per annum set forth under the relevant column heading opposite such Loans
below:
Alternate
Base Rate Eurodollar
Loans Loans
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Tranche A Term Loans 1.00% 2.00%
Tranche B Term Loans 2.00% 3.00%
Revolving Credit Loans 1.00% 2.00%
Swing Line Loans 1.00% Not applicable
; provided that, from and after the date on which Borrower shall have delivered
financial statements for the first fiscal quarter ending at least six months
after the Closing Date, the Applicable Margin with respect to Tranche A Term
Loans, Revolving Credit Loans and Swing
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Line Loans will be adjusted on each Adjustment Date (as defined below) to the
applicable rate per annum set forth in the pricing grid attached hereto as
Schedule II based on the Leverage Ratio as determined from the most recently
delivered financial statements delivered pursuant to subsection 7.1. Changes in
the Applicable Margin resulting from changes in the Leverage Ratio shall become
effective on the date (the "Adjustment Date") on which such financial statements
are delivered to the Lenders (but in any event not later than the 45th day after
the end of each of the first three quarterly periods of each fiscal year or the
90th day after the end of each fiscal year, as the case may be) and shall remain
in effect until the next change to be effected pursuant to this definition;
provided that (a) the Applicable Margin shall be initially the rate per annum
set forth under the relevant column heading above; (b) if for any reason the
financial statements required by subsection 7.1 are not timely delivered to the
Lenders, during the period from the date upon which such financial statements
were required to be delivered until the date upon which they actually are
delivered in compliance with subsection 7.1, the Applicable Margin shall be the
highest Applicable Margin; (c) any change in the Applicable Margin as a result
of a change in the Leverage Ratio shall apply to all Loans for each day during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change in the
Applicable Margin; (d) if an Event of Default exists on any Adjustment Date or
other date upon which the Applicable Margin would otherwise be adjusted
hereunder, the Applicable Margin shall in no event be reduced on such Adjustment
Date or other date from the Applicable Margin in effect immediately prior to
such Adjustment Date or other date until such Event of Default is cured or
waived; and (e) for so long as the Loans are rated by ▇▇▇▇▇'▇ and S&P at least
BBB- and Baa3, the Applicable Margin shall be the lowest Applicable Margin set
forth on Schedule II (regardless of the Leverage Ratio) (it being understood
that at any time that this clause (e) does not apply, the Applicable Margin will
be determined as set forth above).
"Approved Fund": any fund that is advised or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or Affiliate of an entity that
administers or manages a Lender.
"Asset Sale": any sale, sale-leaseback, transfer, lease, conveyance or
other disposition by any Credit Party or any of its Subsidiaries of any of its
Property, including the Capital Stock of any Subsidiary, except (1) sales and
dispositions permitted by subsections 8.5(a), (b), (c), (e), (f) and (g), and
(2) any such transaction or series of transactions which, if an Asset Sale,
would not generate Net Proceeds in excess of $100,000 (or, when taken together
with all other such transactions, in excess of $500,000 in any fiscal year).
"Assignee": each Person acquiring Loans as Commitments pursuant to
subsection 11.6(c).
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"Assignment and Acceptance": an assignment and acceptance substantially
in the form of Exhibit D.
"Available Revolving Credit Commitment": as to any Lender, at a
particular time, an amount equal to (a) the amount of such Lender's Revolving
Credit Commitment at such time less (b) the sum of (i) the aggregate unpaid
principal amount at such time of all Revolving Credit Loans made by such Lender
pursuant to subsection 3.1, (ii) such Lender's Revolving Credit Commitment
Percentage of the aggregate unpaid principal amount at such time of all Swing
Line Loans; provided that, for purposes of calculating the Revolving Credit
Commitments pursuant to subsection 3.2, the amount referred to in this clause
(ii) shall be zero, (iii) such Lender's L/C Participating Interest in the
aggregate amount available to be drawn at such time under all outstanding
Letters of Credit issued by the Issuing Lender and (iv) such Lender's Revolving
Credit Commitment Percentage of the aggregate outstanding amount of L/C
Obligations; collectively, as to all the Lenders, the "Available Revolving
Credit Commitments".
"Available Tranche A Term Credit Commitment": as to any Lender, at a
particular time, but prior to the Tranche A Term Loan Termination Date, an
amount equal to (a) the original amount of such Lender's Tranche A Term Loan
Commitment less (b) the aggregate amount of such Lender's Tranche A Term Loans
made to Borrower pursuant to subsection 2.1(a).
"Available Tranche B Term Credit Commitment": as to any Lender, at a
particular time, but prior to the Tranche B Term Loan Termination Date, an
amount equal to (a) the original amount of such Lender's Tranche B Term Loan
Commitment less (b) the aggregate amount of such Lender's Tranche B Term Loans
made to Borrower pursuant to subsections 2.1(b) and 2.1(d).
"Bankruptcy Code": Title I of the Bankruptcy Reform Act of 1978, as
amended and codified at Title 11 of the United States Code.
"Base Amount": as defined in subsection 8.7.
"Board": the Board of Governors of the Federal Reserve System, together
with any successor.
"Borrower": as defined in the Preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
(a) subsection 3.4 or 4.1 as a date on which Borrower requests the Swing Line
Lender or the Lenders to make Loans hereunder or (b) subsection 3.5 as a date on
which Borrower requests the Issuing Lender to issue a Letter of Credit
hereunder.
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"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"BVBA": ▇▇▇▇▇ Group Services bvba, a 99.99% direct Subsidiary of MCL
organized under the laws of Belgium.
"Canadian Collateral Agreement": the collateral agreement substantially
in the form of Exhibit E-2A or Exhibit E-2B, as appropriate, executed and
delivered by each Grantor that is organized or continued under the laws of
Canada or any province thereof and each Grantor that owns any Property of the
type that would constitute Collateral located in, or with respect to which the
enforceability, creation and/or perfection of a security interest in or Lien
thereon is governed by the laws, of Canada or any political subdivision or
province thereof in accordance with the requirements of this Agreement and in
form and substance reasonably satisfactory to the Administrative Agent and
conforming to the requirements of Canadian law, as amended, amended and
restated, supplemented or modified from time to time.
"Capital Expenditures": for any period, all amounts which would, in
accordance with GAAP, be set forth as capital expenditures (including any amount
attributable to capitalized interest) on the consolidated statement of cash
flows or other similar statement of MCL and its Subsidiaries for such period but
shall exclude any expenditures made with the proceeds of condemnation, eminent
domain, appropriation or similar proceedings affecting real property or with
insurance proceeds.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof (or, with respect to non-U.S.
banking institutions, similar instruments) having combined capital and surplus
of not less than $500,000,000 (or the foreign currency equivalent thereof); (c)
commercial paper of an issuer rated at least A-1 by Standard & Poor's Ratings
Services ("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition,
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having a term of not more than 30 days, with respect to securities issued or
fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or Moody's; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition; or
(h) other short-term investments utilized by Foreign Subsidiaries in accordance
with normal investment practices for cash management.
"CERCLA": as defined in subsection 5.17(g).
"Change in Law": with respect to any Lender (or Participant or
Assignee), the adoption of, or change in, any law, rule, regulation, policy,
guideline, request (including, without limitation, a request of any Governmental
Authority to change the Lender's (or Participant's or Assignee's) applicable
lending office) or directive (whether or not having the force of law) or any
change in the interpretation or application thereof by any Governmental
Authority having jurisdiction over such Lender (or Participant or Assignee), in
each case after the Closing Date.
"Change of Control": (a) an event whereby any "person" or "group" (as
such terms are used in Sections 12(d) and 13(d) of the Exchange Act) (other than
one or more Permitted Holders) shall become, or obtain rights (whether by means
of warrants, options or otherwise) to become, the "beneficial owner" (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
30% or more of the outstanding voting power of the outstanding voting Capital
Stock of MCL; provided, however, in the case of a Permitted Holder (1) the event
whereby such Permitted Holder acquired such voting power or voting Capital Stock
was approved by the board of directors of MCL and (2) the chief executive
officer and any three principal executive officers as of the date the Permitted
Holder acquired such voting power or voting Capital Stock shall continue to hold
such offices for a period of one year from the date thereof (other than a
failure to hold such office due to death, disability, voluntary resignation or
termination for cause); (b) the board of directors of MCL shall cease to consist
of at least a majority of Continuing Directors; (c) the failure of MCL to own,
beneficially, directly or indirectly at least 100% of the issued and outstanding
Capital Stock of ▇▇▇▇▇ Holdings U.S.A. Inc.; or (d) the failure of ▇▇▇▇▇
Holdings U.S.A. Inc. to own, beneficially, directly or indirectly at least 100%
of the issued and outstanding Capital Stock of Borrower.
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"Closing Date": the date not later than August 2, 2002, on which the
Lenders make their initial Loans or the Issuing Lender issues the initial Letter
of Credit.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Documentation Agent": each of Fleet National Bank and Canadian
Imperial Bank of Commerce.
"Collateral": all Property and assets of the Grantors, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Account": the collateral account or sub-account established
and maintained by the Administrative Agent (or a Lender that agrees to be an
administrative sub-agent for the Administrative Agent) in its name as
Administrative Agent for the benefit of the Secured Parties, in accordance with
the provisions of subsection 12.1.
"Commercial L/C": a commercial documentary Letter of Credit under which
the Issuing Lender agrees to make payments in Dollars for the account of
Borrower, on behalf of Borrower or a Subsidiary, in respect of obligations of
Borrower or such Subsidiary in connection with the purchase of goods or services
in the ordinary course of business.
"Commitment": as to any Lender at any time, such Lender's Swing Line
Commitment, Tranche A Term Loan Commitment, Tranche B Term Loan Commitment
and/or Revolving Credit Commitment; collectively, as to all the Lenders from
time to time, the "Commitments".
"Commitment Fee Rate": 1/2 of 1% per annum calculated in accordance
with subsection 3.2.
"Commitment Percentage": as to any Lender at any time, its Tranche A
Term Loan Commitment Percentage, Tranche B Term Loan Commitment Percentage or
Revolving Credit Commitment Percentage, as the context may require.
"Commodities Account": as defined in the U.S. Collateral Agreement.
"Confidential Information Memorandum": as defined in subsection 5.18.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of Borrower and its Subsidiaries at such date.
-9-
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of Borrower
and its Subsidiaries at such date, but excluding (a) the current portion of any
Funded Debt of Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Credit Loans or Swing
Line Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period, minus any reversal of any reserve to the extent included in Consolidated
Net Income, plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
total income tax expense, (b) interest expense, amortization or write-off of
debt discount, debt issuance, and net costs associated with Interest Rate
Agreements to which any Credit Party is a party (including commitment fees and
other periodic bank charges), (c) depreciation and amortization expense and (d)
franchise taxes; provided that (i) the cumulative effect of a change in
accounting principles (effected either through cumulative effect adjustment or a
retroactive application) shall be excluded, (ii) the impact of foreign currency
and hedging translations and transactions shall be excluded and (iii) all other
extraordinary or non-recurring gains, losses and charges shall be excluded
(including any gain or loss from the sale of Property).
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA for such period less interest income for such period
to the extent deducted from Consolidated Interest Expense less the sum of (i)
the aggregate amount actually paid by MCL and its Subsidiaries during such
period on account of Capital Expenditures and (ii) income and franchise taxes
paid by MCL and its Subsidiaries during such period to (b) Consolidated Fixed
Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b) Dividend
Payments, if any, made to Persons other than MCL or any Subsidiary of MCL and
(c) scheduled payments made during such period on account of principal of
Indebtedness of MCL or any of its Subsidiaries (including scheduled principal
payments in respect of the Term Loans) made to Persons other than MCL or any
Subsidiary of MCL; provided, however, that for purposes of clause (c) the
aggregate principal amount of repayments of the Existing Senior Notes (including
any prepayment or make-whole fees) shall be excluded from such definition.
"Consolidated Indebtedness": at a particular date, the aggregate stated
balance sheet amount of all Indebtedness of MCL and its Subsidiaries determined
on a consolidated basis in accordance with GAAP at such date.
"Consolidated Interest Expense": for any period, total cash interest
expense (including that attributable to Financing Leases) of MCL and its
Subsidiaries for such period
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with respect to all outstanding Indebtedness of MCL and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under Hedge Agreements in respect of interest rates to the extent such net costs
are allocable to such period in accordance with GAAP) determined in accordance
with GAAP minus interest income for such period; provided, however, that any and
all prepayments or make-whole amounts with respect to the Existing Senior Notes
shall be excluded from this definition.
"Consolidated Net Income": for any period, net income of MCL and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that: (i) the net income (but not net loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall not
be included whether or not dividends or distributions have been paid (in cash or
otherwise) to MCL or any of its Subsidiaries, (ii) the net income of any Person
that is not a direct or indirect wholly owned Subsidiary of MCL shall only be
included to the extent dividends or other distributions are actually paid in
cash and (iii) the net income of any Subsidiary shall be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that net income is prohibited or not permitted at the date of
determination.
"Consolidated Working Capital": at any date, the excess of Consolidated
Current Assets on such date over Consolidated Current Liabilities on such date.
"Contested Collateral Lien Conditions": with respect to any Permitted
Lien of the type described in clauses (a), (b) and (d) of subsection 8.2, the
following conditions:
(i) any proceeding instituted contesting such Lien shall conclusively
operate to stay the sale or forfeiture of any portion of the Collateral on
account of such Lien;
(ii) at the option and upon request of the Administrative Agent, the
appropriate Credit Party shall have deposited with the Administrative Agent
a sum sufficient to pay and discharge such Lien and the Administrative
Agent's reasonable estimate of all interest and penalties related thereto;
and
(iii) such Lien shall in all respects be subject and subordinate in priority
to the Lien and security interest created and evidenced by the Security
Documents, except if and to the extent that the law or regulation creating,
permitting or authorizing such Lien provides that such Lien is or must be
pari passu or superior to the Lien and security interest created and
evidenced by the Security Documents.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, with-
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out 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 or (d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided that the term
Contingent Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business or indemnities provided
pursuant to transactions permitted hereunder. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount (based on the maximum reasonably anticipated net liability in respect
thereof as determined by Borrower in good faith) of the primary obligation or
portion thereof in respect of which such Contingent Obligation is made or, if
not stated or determinable, the maximum reasonably anticipated net liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by Borrower in good faith.
"Continuing Directors": the directors of MCL on the Closing Date and
each other director if, in each case, such other director's nomination for
election to the board of directors of MCL is recommended by at least a majority
of the then Continuing Directors or by a nominations committee thereof.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of the Property owned by it
is bound.
"Control Agreement": as defined in the U.S. Collateral Agreement.
"Credit Documents": the collective reference to this Agreement, the
Notes, the Security Documents, the Guarantees and all other documents delivered
to any Agent and/or any Lender in connection herewith or therewith, and, solely
for purposes of subsections 9(a) and (d) and subsection 11.15, the Fee Letter.
"Credit Parties": the collective reference to Borrower and the
Guarantors.
"Default": any of the events specified in Section 9, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Deposit Account": as defined in the U.S. Collateral Agreement.
-12-
"Destruction": any and all damage to, or loss or destruction of, or
loss of title to (other than pursuant to any sale or disposition made on an
arm's-length basis or otherwise permitted hereunder), all or any portion of the
Collateral.
"Dividend Payments": dividends (in cash, property or obligations) on,
or other payments or distributions on account of, or the setting apart of money
for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any Capital Stock of any Credit Party or any
of its Subsidiaries, but excluding dividends paid through the issuance of
additional shares of Capital Stock and any redemption or exchange of any Capital
Stock of such Person through the issuance of Capital Stock of such Person.
"Dollars" and "$": lawful money of the United States.
"Domestic Subsidiary": each Subsidiary of a Person other than a Foreign
Subsidiary of such Person.
"Eligible Assignee": (a) a Lender or any Affiliate or Approved Fund of
such Lender, (b) a commercial bank having total assets the Dollar equivalent of
which is in excess of $5,000,000,000, (c) a finance company, insurance company
or any other financial institution or fund, in each case reasonably acceptable
to the Administrative Agent and regularly engaged in making, purchasing or
investing in loans and having a net worth, determined in accordance with GAAP,
the Dollar equivalent of which is in excess of $250,000,000 (or, to the extent
net worth is less than such amount, a finance company, insurance company or
other financial institution or fund reasonably acceptable to the Administrative
Agent and Borrower), (d) a savings and loan association or savings bank
organized under the laws of the United States or any State thereof having a net
worth, determined in accordance with GAAP, the Dollar equivalent of which is in
excess of $250,000,000 or (e) any other Person approved by the Administrative
Agent and, so long as no Default or Event of Default has occurred and is
continuing, Borrower; provided, however, that "Eligible Assignee" shall not
include any Credit Party, any Affiliate thereof or any Affiliate of any of them.
"Employee Benefit Plan": an employee benefit plan (as defined in
Section 3(3) of ERISA) that is maintained or contributed to by any ERISA Entity
or with respect to which any Credit Party or any of its Subsidiaries could incur
liability.
"Environmental Laws": any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority or Requirements of Law (including,
without limitation, common law) relating to pollution or protection of the
environment (including, without limitation, ambient air, soil, subsurface
strata, surface water, groundwater and natural resources such as flora, fauna
and wetlands) or health, including, without limitation, release or threatened
re-
-13-
lease, manufacture, storage, treatment, handling, transport or disposal of
Hazardous Materials, as now or may at any time hereafter be in effect.
"Environmental Permits": any and all permits, licenses, registrations,
notifications, exemptions and any other authorizations required under any
Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Entity": any member of an ERISA Group.
"ERISA Event": (a) any "reportable event," as defined in Section 4043
of ERISA or the regulations issued thereunder, with respect to a Pension Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived, the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Pension Plan; (d) the incurrence by any ERISA Entity of any liability under
Title IV of ERISA with respect to the termination of any Pension Plan; (e) the
receipt by any ERISA Entity from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Pension Plan or to appoint a trustee
to administer any Pension Plan, or the occurrence of any event or condition
which could reasonably be expected to constitute grounds under ERISA for the
termination of or the appointment of a trustee to administer any Pension Plan;
(f) the incurrence by any ERISA Entity of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan;
(g) the receipt by any ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Pension Plan which
could result in the imposition of a lien or the posting of a bond or other
security; or (i) the occurrence of a nonexempt prohibited transaction (within
the meaning of Section 4975 of the Code or Section 406 of ERISA) which could
result in liability to MCL or any of its Subsidiaries.
"ERISA Group": Borrower, any Subsidiary of Borrower and all members of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with Borrower or any
Subsidiary of Borrower, are treated as a single employer under Section 414 of
the Code.
"Eurocurrency Liabilities": as defined in Regulation D of the Board.
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"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to any Interest Period for any
Eurodollar Loans, the rate of interest determined by the Administrative Agent to
be the rate per annum at which deposits in Dollars are offered by the principal
office of Citibank N.A. in London to major banks in the London interbank market
at 11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to the Eurodollar Loans of
Citibank N.A. for a period equal to such Interest Period.
"Eurodollar Lending Office": as to any Lender, the office of such
Lender which shall be making or maintaining Eurodollar Loans.
"Eurodollar Loans": any Loan that, for an Interest Period, bears
interest based on the Eurodollar Rate.
"Eurodollar Rate": with respect to any Interest Period for any
Eurodollar Loans, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the Eurodollar Base Rate by (b)(i) a percentage equal
to 100% minus (ii) the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from time to time
by the Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the Eurodollar Rate is determined) having a term equal to such Interest Period.
"Event of Default": any of the events specified in Section 9; provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Cash Flow": for any fiscal year of MCL, the excess of (a) the
sum, without duplication, of (i) Consolidated EBITDA of MCL for such fiscal
year, (ii) decreases in Consolidated Working Capital of MCL for such fiscal
year, and (iii) an amount equal to the aggregate net non-cash loss on the
disposition of property by MCL and its Subsidiaries during such fiscal year
(other than sales of inventory in the ordinary course of business), to the
extent deducted in arriving at Consolidated Net Income of MCL, over (b) the sum,
without duplication, of (i) the aggregate amount actually paid by MCL or any of
its Subsidiaries in cash dur-
-15-
ing such fiscal year on account of capital expenditures (other than capital
expenditures made with the proceeds of eminent domain or condemnation
proceedings to the extent such proceeds are not included in the determination of
Consolidated EBITDA for such fiscal year and capital expenditures funded with
the proceeds of the incurrence of Indebtedness, the issuance of Capital Stock or
Asset Sales), (ii) the aggregate amount of payments of principal in respect of
any Indebtedness during such fiscal year (other than (A) pursuant to subsection
4.4(b), (B) payments of principal in respect of any revolving credit facility to
the extent that there is not an equivalent reduction in the commitments in
respect of such facility and (C) any repayment of Indebtedness to the extent
made with the proceeds of the incurrence of Indebtedness or the issuance of
Capital Stock), (iii) cash interest expense (including fees paid in connection
with letters of credit and surety bonds and commitment fees and other periodic
bank charges) of MCL or any of its Subsidiaries, (iv) the amount of taxes
actually paid in cash by MCL or any of its Subsidiaries for such fiscal year
either during such fiscal year or within a normal payment period thereof, (v) to
the extent added to Consolidated Net Income in calculating Consolidated EBITDA
for such fiscal year, the net cash cost of Interest Rate Agreements and
franchise taxes, (vi) the amount of cash actually paid by MCL or any of its
Subsidiaries in connection with clause (iii) of the proviso in the definition of
Consolidated EBITDA, (vii) increases in Consolidated Working Capital of MCL for
such fiscal year, and (viii) an amount equal to the aggregate net non-cash gain
on the disposition of property by MCL or any of its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent included in arriving at Consolidated Net Income.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Excluded Taxes": in the case of each Lender and Administrative Agent,
taxes (including franchise taxes) imposed on its overall net income by (i) the
jurisdiction (or any political subdivision thereof) under the laws of which such
Lender or Administrative Agent is incorporated or organized or (ii) the
jurisdiction (or any political subdivision thereof) in which the Administrative
Agent or such Lender maintains an office (including any minimum taxes imparted
in lieu of a tax on overall net income).
"Existing or Additional Tranche B Lenders": as defined in subsection
2.1(d).
"Existing Senior Credit Facility": the Amended and Restated Credit
Agreement dated as of August 5, 1999 among FRDK, Inc. as Borrower, MCL as
guarantor, the subsidiary guarantors named therein, the Lenders named therein
and The Bank of Nova Scotia as agent.
"Existing Senior Notes": as defined in the Recitals hereto.
"Existing Term Loan B Facility Increase": as defined in subsection
2.1(c).
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"Facility": each of (a) the extensions of credit made hereunder in the
form of Tranche A Term Loans (the "Term Loan A Facility"), (b) the extensions of
credit made hereunder in the form of Tranche B Term Loans (the "Term Loan B
Facility") and (c) the Revolving Credit Commitments and the extensions of credit
made thereunder (the "Revolving Credit Facility"), and "Facilities" means the
collective reference to the Term Loan A Facility, the Term Loan B Facility and
the Revolving Credit Facility.
"Federal Funds Rate": for any period, a fluctuating interest rate per
annum 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 that
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter": the letter among Borrower, MCL, Citicorp USA, Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. relating to the payment of certain fees in respect of
the Facilities.
"Financing Lease": (a) any lease of property, real or personal, the
obligations under which are capitalized on a consolidated balance sheet of MCL
and its consolidated Subsidiaries and (b) any other such lease to the extent
that the then present value of any rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet of the lessee.
"Foreign Plan": any employee benefit plan within the meaning of Section
3(3) of ERISA (irrespective of whether such plan is subject to ERISA) maintained
or contributed to by MCL or any of its Subsidiaries with respect to employees
employed outside the United States.
"Foreign Stock Pledge": each stock pledge in favor of the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent, executed and delivered by the stockholders of ▇▇▇▇▇
Belgium NV, ▇▇▇▇▇ Group Services bvba, ▇▇▇▇▇ International BV, ▇▇▇▇▇ Business
Forms Holdings UK Limited, Peak Technologies Holdings Ltd., ▇▇▇▇▇ Brasil Ltda,
▇▇▇▇▇ de Mexico Holdings, S.A. de C.V., and any Credit Party or any of its
Subsidiaries that executes the Security Agreements from time to time pursuant to
subsection 7.9, in accordance with the requirements of this Agreement and in
form and substance reasonably satisfactory to the Administrative Agent and
conforming to applicable law, in each case, as amended, amended and restated,
supplemented or modified from time to time.
"Foreign Subsidiary": each Subsidiary of any Person which is not
organized under the laws of the United States or any state thereof or the
District of Columbia.
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"Funded Debt": as to any Person, all Indebtedness of such Person that
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation, and, in the case of each Credit Party, Indebtedness in respect of
the Loans.
"GAAP": generally accepted accounting principles in Canada as in effect
from time to time, except that for purposes of subsection 8.9 and subsection
8.10, GAAP shall be determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in subsection 5.1(b). In the event that
any Accounting Change (as defined below) shall occur and such change results in
a change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Credit Parties and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this Agreement so
as to equitably reflect such Accounting Change with the desired result that the
criteria for evaluating each Credit Party's financial condition shall be the
same after such Accounting Change as if such Accounting Change had not been
made. Until such time as such an amendment shall have been executed and
delivered by each Credit Party, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Change had not
occurred. "Accounting Change" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC (or the equivalent of
any of the foregoing in Canada).
"Governmental Authority": any nation or government, any state or other
political subdivision thereof or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Grantors": each Person that grants a security interest in or Lien on
its Property pursuant to the Security Documents, which shall include Borrower,
▇▇▇▇▇ Holdings U.S.A. Inc., The ▇▇▇▇▇▇▇ Company, Litho Industries, Inc., Peak
Technologies Inc., MH Holdings Limited, Quality Color Press, and any Credit
Party or any of its Subsidiaries that executes the Security Agreements from time
to time pursuant to subsection 7.9.
"Guarantees": the collective reference to the Parent Guarantee and the
Subsidiary Guarantee and any guarantee which may from time to time be executed
and delivered pursuant to subsection 7.9.
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"Guarantors": the collective reference to the Parent Guarantors and the
Subsidiary Guarantors.
"Hazardous Materials": any pollutants, contaminants, chemicals,
materials or constituents, wastes or hazardous, toxic or other substances that
may give rise to liability, or are subject to regulation, under any
Environmental Law, including, without limitation, asbestos, petroleum and any
petroleum products (including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls and urea-formaldehyde insulation.
"Hedge Agreements": all interest rate swaps, caps or collar agreements,
forwards or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Highest Lawful Rate": as defined in subsection 11.12.
"Increased or Additional Tranche B Term Loan": as defined in subsection
2.1(c).
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations under Financing
Leases of such Person and the obligations (including contingent obligations) of
such Person under and in respect of synthetic lease transactions under which
such Person or any Affiliate of such Person is the lessee, (f) all obligations
of such Person, contingent or otherwise, as an account party or applicant under
or in respect of acceptances, letters of credit (whether drawn or undrawn),
surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person, (h) all Contingent
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of subsection 8.1 and subsection 9(e) only,
all obligations of such Person in respect of Hedge Agreements. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership in-
-19-
terest in or other relationship with such entity, except to the extent the terms
of such Indebtedness expressly provide that such Person is not liable therefor.
"Indemnitee": as defined in subsection 11.5(b).
"Initial Tranche B Term Loan" or "Initial Tranche B Term Loans": as
defined in subsection 2.1(b).
"Installment Amount": for each Tranche and on each Installment Payment
Date, the relevant amount of principal of such Tranche required to be repaid
pursuant to subsection 4.4(c) or (d), as the case may be.
"Installment Payment Date": each Tranche A Installment Payment Date and
each Tranche B Installment Payment Date.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to Alternate Base Rate Loans, the last
day of each March, June, September and December, commencing on the first such
day to occur after any Alternate Base Rate Loans are made or any Eurodollar
Loans are converted to Alternate Base Rate Loans, (b) as to any Eurodollar Loan
in respect of which Borrower has selected an Interest Period of one, two or
three months, the last day of such Interest Period and (c) as to any Eurodollar
Loan in respect of which Borrower has selected a longer Interest Period than the
periods described in clause (b), the last day of each three calendar month
interval during such Interest Period and, in addition, the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on, as the case may be, the
Borrowing Date or conversion date with respect to such Eurodollar Loan and
ending (x) until the earlier of (1) the completion of the syndication of the
Loans and Commitments shall have been completed (as determined by the
Administrative Agent in its sole discretion) and (2) 30 days after the
Closing Date, seven days thereafter and (y) in all other cases, one, two,
three or six months thereafter (or, with the consent of each applicable
Lender, nine or twelve months thereafter) as selected by Borrower in its
notice of borrowing as provided in subsection 4.1 or its notice of
conversion as provided in subsection 4.2; and
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(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending (x)
until the earlier of (1) the completion of the syndication of the Loans and
Commitments shall have been completed (as determined by the Administrative
Agent in its sole discretion) and (2) 30 days after the Closing Date, seven
days thereafter and (y) in all other cases, one, two, three or six months
thereafter (or, with the consent of each applicable Lender, nine or twelve
months thereafter) as selected by Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect to such Eurodollar Loan;
provided that the foregoing provisions relating to Interest Periods are subject
to the following:
(A) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next succeeding
Business Day, unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(B) any Interest Period that would otherwise extend beyond (i) in the
case of an Interest Period for a Term Loan, the final Installment Payment
Date shall end on such Installment Payment Date or, if such Installment
Payment Date shall not be a Business Day, on the next preceding Business
Day; and (ii) in the case of any Interest Period for a Revolving Credit
Loan, the Revolving Credit Termination Date shall end on the Revolving
Credit Termination Date, or if the Revolving Credit Termination Date shall
not be a Business Day, on the next preceding Business Day;
(C) if Borrower shall fail to give notice as provided above in clause
(b), it shall be deemed to have selected a conversion of a Eurodollar Loan
into an Alternate Base Rate Loan (which conversion shall occur automatically
and without need for compliance with the conditions for conversion set forth
in subsection 4.2); and
(D) any Interest Period that begins on the last day of a calendar month
(or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Agreement": any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement.
"Investment": for any Person: (a) the acquisition (whether for cash,
property, services or securities or otherwise) of equity interests, bonds,
notes, debentures or other securities of any other Person; (b) the making of any
deposit with, or advance, loan or other extension of credit to, any other Person
(including the purchase of property from another Person
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subject to an understanding or agreement, contingent or otherwise, to resell
such property to such Person); (c) any capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others) any other Person; and (d) the
entering into, or direct or indirect incurrence, of any Contingent Obligation
with respect to Indebtedness or other liability of any other Person.
"Investment Election Notice": as defined in subsection 12.2.
"Issuing Lender": collectively, Citibank N.A. and any of its
Affiliates, as issuers of the Letters of Credit.
"Law": any statute, law, regulation, ordinance, rule, treaty, judgment,
order, decree, permit, concession, franchise, license, agreement or other
governmental restriction of the United States or Canada or any state, province
or political subdivision thereof or of any foreign country or any department,
province or other political subdivision thereof.
"L/C Application": as defined in subsection 3.5(a).
"L/C Obligations": the obligations of Borrower to reimburse the Issuing
Lender for any payments made by the Issuing Lender under any Letter of Credit
that have not been reimbursed by Borrower pursuant to subsection 3.8(a).
"L/C Participating Interest": an undivided participating interest in
the face amount of each issued and outstanding Letter of Credit and the L/C
Application relating thereto.
"L/C Participation Certificate": a certificate in substantially the
form of Exhibit F.
"L/C Sub-Account": as defined in subsection 12.1(d).
"Lenders": as defined in the Preamble hereto.
"Letters of Credit": the collective reference to the Commercial L/Cs
and the Standby L/Cs; individually, a "Letter of Credit".
"Leverage Ratio": as of any day, the ratio of Consolidated Indebtedness
as of such day to Consolidated EBITDA for the period of the then immediately
preceding four completed fiscal quarters ending on or immediately prior to such
day. For purposes of calculating the Leverage Ratio, Consolidated EBITDA shall
be calculated on a pro forma basis for actual trailing four quarter EBITDA of
the acquired entity adjusted from time to time to give effect to any Permitted
Acquisition consummated in the relevant period as if such acquisition occurred
on the first day of such period.
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"Lien": any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), claim, charge,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC or comparable law of any jurisdiction in
respect of any of the foregoing).
"Loans": the collective reference to the Swing Line Loans, the Term
Loans, and the Revolving Credit Loans; individually, a "Loan".
"Majority Facility Lenders": with respect to each Facility, the holders
of in excess of 50% of the aggregate unpaid principal amount of the Term Loans
or the Revolving Credit Exposure, as the case may be, outstanding under such
Facility (or, in the case of the Revolving Credit Facility, prior to any
termination of the Revolving Credit Commitments, the holders of in excess of 50%
of the aggregate amount of Revolving Credit Commitments).
"Material Adverse Effect": a material adverse effect on (i) the
business, assets, results of operations, properties, condition (financial or
otherwise), contingent liabilities, prospects (as such prospects relate to the
initial and updated annual financial projections of MCL and its Subsidiaries) or
material agreements (that are filed or are required to be filed in any report
with the SEC pursuant to the Exchange Act) of MCL and its Subsidiaries, taken as
a whole; (ii) the ability of Borrower, MCL, The ▇▇▇▇▇▇▇ Company and Peak
Technologies Inc. to perform their respective obligations under any Credit
Document; (iii) the ability of any Credit Party or any of its Subsidiaries taken
as a whole (other than Borrower, MCL, The ▇▇▇▇▇▇▇ Company and Peak Technologies
Inc.) to perform their respective obligations under any Credit Document; (iv)
the material rights and remedies of the Lenders under any Credit Document; or
(v) the value of the Collateral or the validity, enforceability, perfection or
priority of the Liens granted to the Administrative Agent (for its benefit and
for the benefit of the other Secured Parties) on the Collateral pursuant to the
Security Documents.
"Material Subsidiary": any Subsidiary that would be a "significant
subsidiary" of MCL within the meaning of Rule 1-02(w) of Regulation S-X under
the Securities Act of 1933 (replacing references to 10 per cent therein with 5
per cent), or any group of Subsidiaries forming or constituting a related
business segment or business unit that would comprise a Material Subsidiary if
merged or consolidated into one Person.
"MCL": ▇▇▇▇▇ Corporation Limited, a Canadian corporation.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc.
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"Multiemployer Plan": a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA (i) to which any ERISA Entity is then making or
accruing an obligation to make contributions (ii) to which any ERISA Entity has
within the preceding five plan years made contributions, or (iii) with respect
to which Borrower or a Subsidiary could incur liability.
"Net Proceeds": the aggregate cash proceeds received (subject to the
provisions of subsections 8.5(d), (h) and (l), to the extent applicable) by any
Credit Party or any of its Subsidiaries in respect of:
(a) (i) any issuance or borrowing of any debt securities (including
debt securities convertible into, or exchangeable or exercisable for,
Capital Stock) or loans by any Credit Party or any of its Subsidiaries other
than debt or loans permitted to be incurred or borrowed pursuant to
subsection 8.1 (other than any Subordinated Indebtedness) or (ii) any
issuance by any Credit Party or any of its Subsidiaries of Capital Stock;
(b) any Asset Sale or any insurance recoveries in respect of any
Destruction or any proceeds or awards on account of any Taking; provided
that (i) so long as no Event of Default then exists, the net proceeds of any
such insurance recoveries in respect of any Destruction or net award of any
such Taking shall constitute Net Proceeds only to the extent such recoveries
are not reinvested in properties or assets owned (or to be owned) by a
Credit Party or any of its wholly owned Subsidiaries having a fair market
value at least equal to the amount of such net proceeds or net awards within
270 days from the date of such Asset Sale, Destruction or Taking, and (ii)
if the property subject to such Destruction or Taking constituted Collateral
under the Security Documents then (x) such net insurance proceeds or net
awards shall be deposited and maintained in the Collateral Account pending
the reinvestment contemplated in clause (b)(i) of this definition and
applied in accordance with subsection 12.2; provided that there --------
shall be no obligation to deposit any such net proceeds unless and until,
and only to the extent that, the aggregate amount at any time outstanding
(and not applied in accordance with this Agreement) exceeds $15,000,000
(such $15,000,000 to be calculated net of the amount to be reinvested under
any then existing binding contract entered into by MCL or any of its
Subsidiaries to reinvest such net proceeds), and (y) any property purchased
with the net proceeds or net awards thereof shall be mortgaged or pledged,
as the case may be, to the Administrative Agent, for its benefit and for the
benefit of the other Secured Parties in accordance with subsection 7.9; and
(c) [Reserved]
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(d) any cash payments received in respect of promissory notes delivered
to any Credit Party or any of its Subsidiaries in respect of an Asset Sale
delivered to any Credit Party or any of its Subsidiaries in respect of an
Asset Sale;
in each case net of (without duplication) (w) to the extent such Indebtedness
and such Lien are permitted hereunder, the amount required to repay any
Indebtedness (other than the Loans) secured by a Lien on any assets of any
Credit Party or any of its Subsidiaries (that are collateral for any such debt
securities or loans) that are sold or otherwise disposed of in connection with
such Asset Sale or subject to the applicable Destruction or Taking, (x) the
reasonable expenses (including legal fees and brokers' and underwriters'
commissions, lenders fees or credit enhancement fees, in any case, paid to third
parties or, to the extent permitted hereby, Affiliates) incurred in effecting
the applicable event or events described in clauses (a) through (d) above, (y)
any taxes (including any withholding) reasonably attributable to the applicable
event or events described in clauses (a) through (d) above and reasonably
estimated by any Credit Party to be actually payable and (z) in the case of any
receipt of proceeds by a Subsidiary, any amount required to be distributed to
the holders of any minority equity interest in the respective Subsidiary (or in
any other Subsidiary which directly or indirectly holds equity interests in such
Subsidiary).
"Non-Bank Certificate": a certificate substantially in the form of
Exhibit G.
"Non-Funding Lender": as defined in subsection 4.9(c).
"Non-Qualified Subsidiary": each subsidiary of MCL that is not a
Qualified Subsidiary.
"Notes": the collective reference to the Swing Line Notes, the
Revolving Credit Notes and the Term Loan Notes; each of the Notes, a "Note".
"Obligations": as defined in the U.S. Collateral Agreement.
"Officers' Certificate": as applied to any corporation, a certificate
executed on behalf of such corporation by its Chairman of the Board (if an
officer) or its President or one of its Vice Presidents or by its Chief
Financial Officer or its Treasurer or any Assistant Treasurer or, in the case of
Foreign Subsidiaries, officers or persons performing comparable functions.
"Other Taxes": as defined in subsection 4.11(d)(ii).
"Parent Guarantee": the Parent Guarantee, substantially in the form of
Exhibit H-2, to be made by each direct and indirect holding company of Borrower
in favor of the Ad-
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ministrative Agent for the benefit of the Secured Parties, as the same may be
amended, modified or supplemented from time to time.
"Parent Guarantor": each of MCL, ▇▇▇▇▇ Holdings U.S.A. Inc. and each
direct and indirect holding company of Borrower existing on the Closing Date or
thereafter created or acquired.
"Participants": as defined in subsection 11.6(b).
"Participating Lender": any Revolving Credit Lender (other than the
Issuing Lender) with respect to its L/C Participating Interest in each Letter of
Credit.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA or any successor.
"Pension Plan": an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code or Section 302 of ERISA
and is maintained or contributed to by any ERISA Entity or with respect to which
any Credit Party or any of its Subsidiaries could incur liability.
"Perfection Certificate": as defined in subsection 6.1(p).
"Permitted Acquisitions": as defined in subsection 8.6(h).
"Permitted Holder": (i) any "person" or "group" (as such terms are used
in Sections 12(d) and 13(d) of the Exchange Act) which, as of the Closing Date,
own 10% or more of the outstanding voting power of the outstanding Capital Stock
of MCL, (ii) each Person who is, as of the Closing Date, a director of MCL and
(iii) each person or group who is an Affiliate of one or more of the persons or
groups described in clause (i) or (ii) of this definition.
"Permitted Liens": Liens permitted to exist under subsection 8.2.
"Person": an individual, partnership, corporation, business trust,
joint stock company, limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PPSA": the Personal Property Security Act (Ontario) and any other
applicable Canadian, provincial or territorial personal property security or
similar legislation, together with all rules, regulations and interpretations
thereunder or related thereto.
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"Profit Payment Agreement": any agreement to make any payment the
amount of which is, or the terms of payment of which are, in any respect subject
to or contingent upon the revenues, income, cash flow or profits (or the like)
of any Person or business.
"Pro Forma Balance Sheet": as defined in subsection 5.1(a).
"Property": any right, title or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible and including Capital Stock or other ownership interests of any
Person.
"Qualified Subsidiary": each wholly owned Domestic Subsidiary of MCL
which is a Guarantor and a party to the Security Documents.
"Real Property": all right, title and interest of any Person
(including, without limitation, any leasehold estate) in and to a parcel of real
property owned or operated by any Company, whether by lease, license or other
use or occupancy agreement, together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof or thereon.
"Refinancing": the refinancing, renewal, extension, replacement,
defeasance or refunding, in whole or in part, of any Indebtedness; provided that
(i) any such Refinancing is in an aggregate principal amount not greater than
the aggregate principal amount of the Indebtedness being renewed or refinanced,
plus the amount of any premiums required to be paid thereon and reasonable fees
and expenses associated therewith; and (ii) such Refinancing has a later or
equal final maturity and longer or equal weighted average life than the
Indebtedness being renewed or refinanced.
"Refunded Swing Line Loans": as defined in subsection 3.4(b).
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U (12 C.F.R. Part 221) of the Board of
Governors of the United States Federal Reserve System (or any successor), as the
same may be modified and supplemented and in effect from time to time.
"Regulation X": Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the United States Federal Reserve System (or any successor), as the
same may be modified and supplemented and in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such Plan is in reorganization as such term is used in Section 4241 of
ERISA.
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"Required Lenders": at a particular time, the holders of in excess of
50% of the sum of (i) the Term Loans then outstanding, (ii) the unutilized
Tranche A Term Loan Commitment and the unutilized Tranche B Term Loan Commitment
and (iii) the Revolving Credit Commitments, or if the Revolving Credit
Commitments have been terminated in full, the Revolving Credit Exposure. The
Term Loans and the Revolving Credit Commitments of any Non-Funding Lender shall
be disregarded in determining Required Lenders at any time.
"Requirement of Law": as to any Person, the Articles or Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, order or determination of an
arbitrator or a court or other Governmental Authority, in each case, applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": with respect to any Person, the president, chief
executive officer, the chief operating officer, the chief financial officer,
treasurer, corporate controller or any vice president of such Person.
"Revolving Credit Commitment": as to any Lender, its obligations to (i)
make Revolving Credit Loans to Borrower pursuant to subsection 3.1 and (ii)
purchase its L/C Participating Interest in any Letter of Credit, in an aggregate
amount not to exceed the amount set forth under such Lender's name in Schedule I
opposite the caption "Revolving Credit Commitment" or in Schedule 1 to the
Assignment and Acceptance by which such Lender acquired its Revolving Credit
Commitment, as the same may be reduced from time to time pursuant to subsection
4.3 or 4.4 or adjusted pursuant to subsection 11.6(c); collectively, as to all
the Lenders, the "Revolving Credit Commitments". The original aggregate
principal amount of the Revolving Credit Commitments is $125,000,000.
"Revolving Credit Commitment Percentage": as to any Lender at any time,
the percentage of the aggregate Revolving Credit Commitments then constituted by
such Lender's Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period from and including the
Closing Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Exposure": the sum of (i) the aggregate unpaid
principal amount of the Revolving Credit Loans, (ii) participations in Swing
Line Loans, (iii) the aggregate amount available to be drawn at such time under
all outstanding Letters of Credit and (iv) L/C Obligations.
"Revolving Credit Facility": as defined in the definition of Facility.
"Revolving Credit Lender": any Lender with a Revolving Credit
Commitment.
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"Revolving Credit Loans": as defined in subsection 3.1(a).
"Revolving Credit Note": as defined in subsection 4.13(e).
"Revolving Credit Termination Date": the earlier of (a) August 2, 2007
or, if such date is not a Business Day, the immediately preceding Business Day
and (b) such other earlier date as the Revolving Credit Commitments shall
terminate hereunder.
"Sale and Leaseback Transaction": any arrangement, directly or
indirectly, with any Person whereby it shall sell or transfer any property used
or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to use
for substantially the same purpose or purposes as the property being sold or
transferred.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Secured Parties": the collective reference to the Administrative
Agent, each other Agent, the Lend ers and each party to an Interest Rate
Agreement relating to the Loans if at the date of entering into such Interest
Rate Agreement such Person was a Lender or an Affiliate of a Lender and such
Person executes and delivers to the Administrative Agent a letter agreement in
form and substance acceptable to the Administrative Agent pursuant to which such
Person (i) appoints the Administrative Agent as its agent under the applicable
Credit Documents and (ii) agrees to be bound by the provisions of Section 12.3
of this Agreement.
"Securities Account": as defined in the U.S. Collateral Agreement.
"Security Agreements": the collective reference to the U.S. Collateral
Agreement, the Canadian Collateral Agreement and each Foreign Stock Pledge and
any security or collateral agreement which may from time to time be executed and
delivered by any Credit Party or any of its Subsidiaries pursuant to subsection
7.9, in each case as amended, amended and restated, supplemented or modified
from time to time.
"Security Documents": the collective reference to the Security
Agreements, all UCC, PPSA or other financing statements and other instruments of
perfection, including the Perfection Certificate, required by this Agreement or
the Security Agreements to be executed, delivered and/or filed or recorded, and
any other documents utilized to pledge to the Administrative Agent, for its
benefit and for the benefit of the other Secured Parties, any Property as
collateral for the Obligations in each case, as amended, amended and restated,
supplemented or modified from time to time.
"Sole Lead Arranger": ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
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"Solvent" and "Solvency": when used with respect to any Person, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) 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 (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"S&P": Standard and Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Standby L/C": an irrevocable letter of credit under which the Issuing
Lender agrees to make payments in Dollars for the account of Borrower, on behalf
of Borrower or any Subsidiary of Borrower in respect of obligations of Borrower
or such Subsidiary incurred pursuant to contracts made or performances
undertaken or to be undertaken or like matters relating to contracts to which
Borrower or such Subsidiary is or proposes to become a party in Borrower's or
such Subsidiary's business, including, without limiting the foregoing, for
insurance purposes or in respect of advance payments or as bid or performance
bonds or for any other purpose for which a standby letter of credit might
customarily be issued.
"Subordinated Indebtedness": Indebtedness that is subordinated on terms
and conditions and pursuant to documentation reasonably satisfactory to the
Administrative Agent.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock of each class or
other interests having ordinary voting power (other than stock or other
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, by such Person or by one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. A Subsidiary shall be deemed wholly owned by a Person who owns
directly or indirectly all of the voting shares of stock or
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other interests of such Subsidiary having voting power under ordinary
circumstances to vote for directors or other managers of such corporation,
partnership or other entity, except for directors' qualifying shares.
"Subsidiary Guarantee": the Subsidiary Guarantee, substantially in the
form of Exhibit H-1, to be made by the Subsidiary Guarantors in favor of the
Administrative Agent for the benefit of the Secured Parties, as the same may be
amended, modified or supplemented from time to time.
"Subsidiary Guarantor": each of (1) each Subsidiary of MCL listed on
Schedule III and (2) each Subsidiary of MCL which pursuant to subsection 7.9
becomes a party to the Subsidiary Guarantee.
"Swing Line Commitment": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 3.4.
"Swing Line Lender": Citibank N.A., in its capacity as lender of the
Swing Line Loans and any other Lender approved by Borrower and the
Administrative Agent.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection 3.4(a).
"Swing Line Note": as defined in subsection 4.13(e).
"Syndication Agent": The Bank of Nova Scotia.
"Taking": any taking of any Property or any portion thereof, in or by
condemnation or other eminent domain proceedings pursuant to any law, general or
special, or by reason of the temporary requisition of the use of any Property or
any portion thereof, by any Governmental Authority, civil or military.
"Tax Returns": all returns, declarations, reports, estimates,
information returns, statements and forms or other documents (including any
related or supporting information) required to be filed in respect of any Taxes.
"Taxes": (i) any and all present or future taxes, duties, levies, fees,
imposts, deductions, charges or withholdings, whether computed on a separate,
consolidated, unitary, combined or other basis and any and all liabilities
(including interest, fines, penalties or additions to tax) with respect to the
foregoing and (ii) any transferee, successor, joint and several, contractual or
other liability (including, without limitation, liability pursuant to Treasury
-31-
Regulation (section)1.1502-6 (or any similar provision of state, local or
non-U.S. law)) in respect of any item described in clause (i).
"Term Loan" and "Term Loans": as defined in subsection 2.1(c).
"Term Loan A Facility": as defined in the definition of Facility.
"Term Loan B Facility": as defined in the definition of Facility.
"Term Loan B Facility Increase": as defined in subsection 2.1(c).
"Term Note": a Tranche A Term Note or a Tranche B Term Note, as the
context shall require, and collectively, the "Term Notes".
"Tranche": the Tranche A Term Loan(s) or the Tranche B Term Loan(s) or
the Revolving Credit Commitment, as the case may be.
"Tranche A Installment Payment Date": as defined in subsection 4.4(c).
"Tranche A Lender": each Lender that has a Tranche A Term Loan
Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Maturity Date": August 2, 2007 or, if such date is not a
Business Day, the immediately preceding Business Day.
"Tranche A Term Loan": as defined in subsection 2.1.
"Tranche A Term Loan Commitment": as to any Tranche A Lender, its
obligation to make a Tranche A Term Loan to Borrower pursuant to subsection 2.1
in an aggregate amount not to exceed the amount set forth under such Lender's
name in Schedule I opposite the caption "Tranche A Term Loan Commitment" or in
Schedule 1 to the Assignment and Acceptance pursuant to which a Lender acquires
its Tranche A Term Loan Commitment, as the same may be adjusted pursuant to
subsection 11.6(c); collectively, as to all the Tranche A Lenders, the "Tranche
A Term Loan Commitments". The original aggregate principal amount of the Tranche
A Term Loan Commitments is $75,000,000.
"Tranche A Term Loan Commitment Percentage": as to any Tranche A Lender
at any time, the percentage of the aggregate Tranche A Term Loan Commitments
then constituted by such Lender's Tranche A Term Loan Commitment (or, after the
Tranche A Term Loans are made, the percentage of the aggregate outstanding
principal amount of the Tranche A Term Loans then constituted by the principal
amount of such Tranche A Lender's Tranche A Term Loan).
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"Tranche A Term Loan Commitment Termination Date": the earlier of (a)
February 5, 2004, if the Tranche A Term Loan(s) have not been made on or prior
to such date, or if such date is not a Business Day, the immediately preceding
Business Day and (b) the date the Tranche A Term Loan Commitment is reduced to
$0.
"Tranche A Term Note": as defined in subsection 4.13(e).
"Tranche B Installment Payment Date": as defined in subsection 4.4(d).
"Tranche B Lender": each Lender that has a Tranche B Term Loan
Commitment or is the holder of a Tranche B Term Loan, and, if applicable any
Existing or Additional Tranche B Lender.
"Tranche B Maturity Date": August 2, 2008 or, if such date is not a
Business Day, the immediately preceding Business Day.
"Tranche B Prepayment Acceptance Date": as defined in subsection
4.4(e).
"Tranche B Prepayment Amount": as defined in subsection 4.4(e).
"Tranche B Prepayment Option Notice": as defined in subsection 4.4(e).
"Tranche B Term Loan": as defined in subsection 2.1(c).
"Tranche B Term Loan Commitment": as to any Tranche B Lender, its
obligation to make a Tranche B Term Loan to Borrower pursuant to subsection 2.1
in an aggregate amount not to exceed the amount set forth under such Lender's
name in Schedule I opposite the caption "Tranche B Term Loan Commitment" or in
Schedule 1 to the Assignment and Acceptance pursuant to which a Lender acquires
its Tranche B Term Loan Commitment, as the same may be adjusted pursuant to
subsection 11.6(c), or, if applicable, the Tranche B Term Loan Commitment, as to
any Tranche B Lender, shall include its obligation to make a Tranche B Term Loan
under the Additional Term Loan B Facility to Borrower pursuant to and in
accordance with subsection 2.1(c); collectively, as to all the Tranche B
Lenders, the "Tranche B Term Loan Commitments". The original aggregate principal
amount of the Tranche B Term Loan Commitments is $200,000,000, as such amount
may be increased pursuant to subsection 2.1(c).
"Tranche B Term Loan Commitment Percentage": as to any Tranche B Lender
at any time, the percentage of the aggregate Tranche B Term Loan Commitments
then constituted by such Lender's Tranche B Term Loan Commitment (or, after the
Tranche B Term Loans are made, the percentage of the aggregate outstanding
principal amount of the Tranche
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B Term Loans then constituted by the principal amount of such Tranche B Lender's
Tranche B Term Loan).
"Tranche B Term Loan Commitment Termination Date": the earlier of (a)
September 20, 2002 and (b) the date the Tranche B Term Loan Commitment is
reduced to $0.
"Tranche B Term Note": as defined in subsection 4.13(e).
"Transaction Documents": the collective reference to each document
pursuant to which each of the Transactions will be consummated.
"Transactions": as defined in the Recitals hereto.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an Alternate Base Rate Loan or
Eurodollar Loan.
"UCC": the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
and any amendments thereof.
"United States": the United States of America.
"United States Person": any Person organized under the laws of the
United States or any state thereof or the District of Columbia.
"U.S. Collateral Agreement": the collateral agreement substantially in
the form of Exhibit E-1 to be entered into by the Grantors from time to time
party thereto in favor of the Administrative Agent for its benefit and for the
benefit of the other Secured Parties, as the same may be amended, modified or
supplemented from time to time.
"Withdrawal Liability": liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part 1 of Subtitle E of Title IV of ERISA.
1.2. Rules of Construction. (a) In this Agreement and each other Credit
Document, unless the context clearly requires otherwise (or such other Credit
Document clearly provides otherwise), references to (i) the plural include the
singular, the singular the plural and the part the whole; (ii) Persons include
their respective permitted successors and
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assigns or, in the case of governmental Persons, Persons succeeding to the
relevant functions of such Persons; (iii) agreements (including this Agreement),
promissory notes and other contractual instruments include subsequent
amendments, assignments, and other modifications thereto, but only to the extent
such amendments, assignments or other modifications thereto are not prohibited
by their terms or the terms of any Credit Document; (iv) statutes and related
regulations include any amendments of same and any successor statutes and
regulations; and (v) time shall be a reference to New York, New York time. Where
any provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
(b) In this Agreement and each other Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), (i) "amend" shall mean "amend, restate, amend and restate,
supplement or modify"; and "amended," "amending" and "amendment" shall have
meanings correlative to the foregoing; (ii) in the computation of periods of
time from a specified date to a later specified date, "from" shall mean "from
and including"; "to" and "until" shall mean "to but excluding"; and "through"
shall mean "to and including"; (iii) "hereof," "herein" and "hereunder" (and
similar terms) in this Agreement or any other Credit Document refer to this
Agreement or such other Credit Document, as the case may be, as a whole and not
to any particular provision of this Agreement or such other Credit Document;
(iv) "including" (and similar terms) shall mean "including without limitation"
(and similarly for similar terms); (v) "or" has the inclusive meaning
represented by the phrase "and/or"; (vi) "satisfactory to" the Administrative
Agent shall mean in form, scope and substance and on terms and conditions
satisfactory to the Administrative Agent; (vii) references to "the date hereof"
shall mean the date first set forth above; and (viii) "asset" and "property"
shall have the same meaning and effect and refer to all tangible and intangible
assets and property, whether real, personal or mixed and of every type and
description.
(c) In this Agreement unless the context clearly requires otherwise,
any reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to this Agreement and constituting a part
hereof, and (ii) a Section or other subsection is to a Section or such other
subsection of this Agreement.
SECTION 2. TERM LOANS
2.1. Term Loans. Subject to the terms and conditions hereof:
(a) Tranche A Term Loans. Each Tranche A Lender severally agrees to
make a loan in Dollars (individually, a "Tranche A Term Loan"; and collectively,
the "Tranche A Term Loans") to Borrower at any time or from time to time after
the Closing Date but prior to the Tranche A Term Loan Commitment Termination
Date, in an amount equal to the portion of such Lender's Tranche A Term Loan
Commitment as requested by Borrower to be made on
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such day (subject to a maximum of two drawings total) in an aggregate amount not
to exceed at any time outstanding such Lender's Tranche A Term Loan Commitment.
The minimum amount drawn on any permitted funding date shall be $20 million;
provided, however, in the event the initial drawing exceeds $55 million, the
second drawing must be in a minimum amount of at least $5 million and made in
increments of $1 million.
(b) Tranche B Term Loans. Each Tranche B Lender severally agrees to
make a loan in Dollars (individually, an "Initial Tranche B Term Loan"; and
collectively, the "Initial Tranche B Term Loans") to Borrower (i) on the Closing
Date and (ii) at any time (but only once) prior to the Tranche B Term Loan
Commitment Termination Date, in an amount equal to such Lender's Tranche B Term
Loan Commitment as requested by Borrower to be made on such day in an aggregate
amount not to exceed at any time outstanding such Lender's Tranche B Term Loan
Commitment. The amounts drawn on the Closing Date and on the date prior to the
Tranche B Term Loan Commitment Termination Date shall each be $100 million.
(c) Increased or Additional Tranche B Term Loans. Borrower may, at any
time prior to the Tranche B Maturity Date, request an increase to the principal
amount of the Term Loan B Facility of no more than $150 million in the form as
agreed between Borrower and the Administrative Agent of (i) an increase to the
then existing Term Loan B Facility in a principal amount of at least $50 million
(an "Existing Term Loan B Facility Increase") and/or (ii) the creation of an
additional Term Loan B Facility in a principal amount of at least $100 million
(an "Additional Term Loan B Facility") (either (i), (ii) or (i) and (ii)) to be
referred to as the "Term Loan B Facility Increase"). Each Existing or Additional
Tranche B Lender severally agrees to make a loan, in Dollars (individually, an
"Increased or Additional Tranche B Term Loan"; together with the Initial Tranche
B Term Loans, the "Tranche B Term Loans"; together with the Tranche A Term
Loans, the "Term Loans"), in accordance with subsection 2.1(d).
(d) Conditions to Increased or Additional Tranche B Term Loans. Any
Term Loan B Facility Increase will only become effective (i) if at the time of
and after giving effect to such increase, Borrower is in pro forma compliance
with subsection 8.9, (ii) no Default or Event of Default has occurred and is
continuing or would result therefrom and (iii) existing Lenders or other
financial institutions reasonably acceptable to the Administrative Agent commit
(in their absolute and sole discretion) in writing to be Lenders and fund the
Term Loan B Facility Increase (the "Existing or Additional Tranche B Lenders"),
it being expressly agreed and understood that no Lender need agree to any such
commitment or extend any additional credit. The existing Lenders shall have the
first right, but no obligation, to commit all or a portion of any Term Loan B
Facility Increase. If the existing Lenders do not commit to provide the full
amount of the Term Loan B Facility Increase, then Borrower may offer the
uncommitted amount of the Term Loan B Facility Increase to other financial
institutions reasonably acceptable to the Administrative Agent; provided, that
the minimum commitment of
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each such new financial institution equals or exceeds $5,000,000. The terms and
conditions of any Additional Term Loan B Facility shall be the same as those
applicable to the existing Term Loan B Facility provided that (i) the interest
rate for the Additional Term Loan B Facility may be higher or lower than the
rate otherwise applicable to the existing Term Loan B Facility, (ii) the final
maturity date for the Additional Term Loan B Facility may be later than the
final maturity date of the existing Term Loan B Facility and (iii) the
amortization schedule for the Additional Term Loan B Facility may differ from
that applicable to the existing Term Loan B Facility so long as the weighted
average life to maturity of the Additional Term Loan B Facility is no shorter
than the weighted average life to maturity of the existing Term Loan B Facility.
The terms "Tranche B Term Loans", "Tranche B Term Note", "Term Loans", "Tranche
B Lender", "Tranche B Term Loan Commitment" and "Tranche B Term Loan Commitment
Percentage" shall include any Loan, Lender or Commitment under or pursuant to
any Term B Loan Facility Increase.
(e) Commitment Fee. Borrower agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee from and including the Closing
Date to but excluding the Tranche A Term Loan Commitment Termination Date or
Tranche B Term Loan Commitment Termination Date, as the case may be, computed at
the Commitment Fee Rate on the average daily amount of the Available Tranche A
Term Credit Commitment or the Available Tranche B Term Credit Commitment, as the
case may be, of such Lender during the period for which payment is made. Such
commitment fee shall be payable quarterly in arrears on the last day of each
March, June, September and December and on the Tranche A Term Loan Commitment
Termination Date or Tranche B Term Loan Commitment Termination Date, as the case
may be, commencing on the first such date to occur on or following the Closing
Date (or, if earlier, the Tranche A Term Loan Commitment Termination Date or
Tranche B Loan Commitment Termination Date, as the case may be).
2.2. Repayment of Term Loans. Borrower may repay the Term Loans as
provided in subsection 4.4(a) and shall repay the Term Loans as provided in
subsections 4.4(b), (c) and (d), in each case subject to the provisions of
subsection 4.4(e) (to the extent applicable).
2.3. Use of Proceeds. The proceeds of the Term Loans shall be used to
finance a portion of the Transactions and Permitted Acquisitions and to pay
fees, expenses and financing costs in connection therewith and to fund working
capital requirements.
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
3.1. Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to the extent
of its Revolving Credit Commitment to extend credit to Borrower at any time and
from time to time on any Borrow-
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ing Date during the Revolving Credit Commitment Period (i) by purchasing an L/C
Participating Interest in each Letter of Credit issued by the Issuing Lender and
(ii) by making loans in Dollars (individually, a "Revolving Credit Loan", and
collectively, the "Revolving Credit Loans") to Borrower from time to time.
Notwithstanding the above, in no event shall any Revolving Credit Loans be made,
or Letter of Credit be issued, if the aggregate amount of the Revolving Credit
Loans to be made or Letter of Credit to be issued would, after giving effect to
the use of proceeds, if any, thereof, exceed the aggregate Available Revolving
Credit Commitments nor shall any Letter of Credit be issued if after giving
effect thereto the sum of the undrawn amount of all outstanding Letters of
Credit and the amount of all L/C Obligations would exceed $30,000,000.
(b) During the Revolving Credit Commitment Period, Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof, and/or by having the Issuing Lender issue Letters of Credit,
having such Letters of Credit expire undrawn upon or if drawn upon, reimbursing
the Issuing Lender for such drawing, and having the Issuing Lender issue new
Letters of Credit.
(c) Each borrowing of Revolving Credit Loans pursuant to the Revolving
Credit Commitments shall be in an aggregate principal amount of the lesser of
(i) $3,000,000 or a whole multiple of $1,000,000 in excess thereof in the case
of Alternate Base Rate Loans, and $3,000,000 or a whole multiple of $1,000,000
in excess thereof, in the case of Eurodollar Loans, and (ii) the Available
Revolving Credit Commitments, except that any borrowing of Revolving Credit
Loans to be used solely to pay a like amount of Swing Line Loans may be in the
aggregate principal amount of such Swing Line Loans.
3.2. Commitment Fee. Borrower agrees to pay to the Administrative Agent
for the account of each Revolving Credit Lender (other than any Non-Funding
Lender) a commitment fee from and including the Closing Date to but excluding
the Revolving Credit Termination Date, computed at the Commitment Fee Rate on
the average daily amount of the Available Revolving Credit Commitment of such
Revolving Credit Lender during the period for which payment is made (whether or
not Borrower shall have satisfied the applicable conditions to borrow or for the
issuance of a Letter of Credit set forth in Section 6). Such commitment fee
shall be payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Credit Termination Date, as the case
may be, commencing on the first such date to occur on or following the Closing
Date (or, if earlier, the Revolving Credit Termination Date).
3.3. Proceeds of Revolving Credit Loans. Borrower shall use the
proceeds of Revolving Credit Loans to finance Permitted Acquisitions and to pay
fees, expenses and financing costs in connection therewith and to provide for
the ongoing working capital and gen-
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eral corporate purposes of Borrower, its Subsidiaries and the Guarantors on and
after the Closing Date.
3.4. Swing Line Commitment. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees, so long as the Administrative Agent has
not received notice that an Event of Default has occurred and is continuing, to
make swing line loans (individually, a "Swing Line Loan"; collectively, the
"Swing Line Loans") to Borrower at any time and from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed $15,000,000; provided that no Swing Line Loan may
be made if the aggregate principal amount of the Swing Line Loans to be made
would exceed the aggregate Available Revolving Credit Commitments at such time.
Amounts borrowed by Borrower under this subsection 3.4 may be repaid and,
through but excluding the Revolving Credit Termination Date, reborrowed. All
Swing Line Loans (1) shall be made as Alternate Base Rate Loans, (2) shall not
be entitled to be converted into Eurodollar Loans and (3) must be repaid in full
within seven days of making of such Loan or, if sooner, upon the making of any
Revolving Credit Loan and shall in any event mature no later than the Revolving
Credit Termination Date. Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 1:00
p.m., New York City time) on the requested Borrowing Date specifying the amount
of each requested Swing Line Loan, which shall be in an aggregate minimum amount
of $100,000 or a whole multiple of $50,000 in excess thereof. The Swing Line
Lender shall, before 5:00 p.m. (New York City time) on such requested Borrowing
Date, make available to the Administrative Agent for the account of Borrower in
same day funds, the proceeds of such Swing Line Loans. The proceeds of each
Swing Line Loan will be made available by the Swing Line Lender to Borrower by
crediting the account of Borrower at the office of the Swing Line Lender with
such proceeds. The proceeds of Swing Line Loans may be used solely for the
purposes referred to in subsection 3.3.
(b) The Swing Line Lender at any time in its sole and absolute
discretion may, and on the fifteenth day (or if such day is not a Business Day,
the next Business Day) and last Business Day of each month shall, on behalf of
Borrower (which hereby irrevocably directs the Swing Line Lender to act on its
behalf) request each Revolving Credit Lender, including the Swing Line Lender,
to make a Revolving Credit Loan in an amount equal to such Lender's Revolving
Credit Commitment Percentage of the amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date such notice is given.
Unless any of the events described in paragraph (f) of Section 9 shall have
occurred and be continuing (in which event the procedures of paragraph (c) of
this subsection 3.4 shall apply), each such Lender shall make the proceeds of
its Revolving Credit Loan available to the Swing Line Lender for the account of
the Swing Line Lender at the office of the Swing Line Lender specified in
subsection 11.2 (or such other location as the Swing Line Lender may direct)
prior to 12:00 noon (New York City time) in funds immediately available on the
Business Day next succeeding
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the date such notice is given. The proceeds of such Revolving Credit Loans shall
be immediately applied to repay the Refunded Swing Line Loans.
(c) If, prior to the making of a Revolving Credit Loan pursuant to
paragraph (b) of this subsection 3.4, one of the events described in paragraph
(f) of Section 9 shall have occurred and be continuing, each Revolving Credit
Lender will, on the date such Loan was to have been made, purchase an undivided
participating interest in the Refunded Swing Line Loan in an amount equal to its
Revolving Credit Commitment Percentage of such Refunded Swing Line Loan. Each
such Lender will immediately transfer to the Swing Line Lender in immediately
available funds, the amount of its participation and upon receipt thereof the
Swing Line Lender will deliver to such Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
(d) Whenever, at any time after the Swing Line Lender has received from
any Revolving Credit Lender such Lender's participating interest in a Refunded
Swing Line Loan, the Swing Line Lender receives any payment on account thereof,
the Swing Line Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded) in like funds as received; provided that, in the event
that such payment received by the Swing Line Lender is required to be returned,
such Lender will return to the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like funds as such payment is
required to be returned by the Swing Line Lender.
(e) The obligation of each Revolving Credit Lender to purchase
participating interests pursuant to subsection 3.4(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may have against the Swing Line Lender,
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of an Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of MCL or any of its Subsidiaries; (iv) any breach of
this Agreement by MCL or any of its Subsidiaries or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
3.5. Issuance of Letters of Credit. (a) Borrower may from time to time
request the Issuing Lender to issue a Standby L/C or a Commercial L/C by
delivering to the Administrative Agent at its address specified in subsection
11.2 (or such other location as the Issuing Lender may direct) a letter of
credit application in the Issuing Lender's then customary form (the "L/C
Application") completed to the satisfaction of the Issuing Lender, together with
the proposed form of such Letter of Credit (which shall comply with the
applicable requirements of paragraph (b) below) and such other certificates,
documents and other papers and informa-
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tion as the Issuing Lender may reasonably request; provided that if the Issuing
Lender informs Borrower that it is for any reason unable to open such Letter of
Credit, Borrower may request any Lender to open such Letter of Credit upon the
same terms offered to the Issuing Lender and each reference to the Issuing
Lender for purposes of subsections 3.5 through 3.13, 6.1 and 6.2 shall be deemed
to be a reference to such Issuing Lender.
(b) Each Standby L/C and Commercial L/C issued hereunder shall be
issued for the account of Borrower and shall, among other things, (i) be in such
form requested by Borrower as shall be acceptable to the Issuing Lender in its
sole discretion and (ii) have an expiry date occurring not later than 365 days
after the date of issuance of such Letter of Credit and, in the case of Standby
L/Cs, may be automatically renewed on its expiry date for an additional period
equal to the initial term. Each L/C Application and each Letter of Credit shall
be subject to the International Standby Practices (ISP 98) of the International
Chamber of Commerce (in the case of Standby L/Cs) or the Uniform Customs (in the
case of Commercial L/Cs) and, to the extent not inconsistent therewith, the laws
of the State of New York.
3.6. Participating Interests. Effective in the case of each Standby L/C
and Commercial L/C (if applicable) as of the date of the opening thereof, the
Issuing Lender agrees to allot and does allot, to itself and each other
Revolving Credit Lender, and each such Lender severally and irrevocably agrees
to take and does take in such Letter of Credit and the related L/C Application
(if applicable), an L/C Participating Interest in a percentage equal to such
Lender's Revolving Credit Commitment Percentage.
3.7. Procedure for Opening Letters of Credit. The Issuing Lender will
notify each Lender after the end of each calendar month of any L/C Applications
received by the Issuing Lender from Borrower during such month. Upon receipt of
any L/C Application from Borrower, the Issuing Lender will process such L/C
Application, and the other certificates, documents and other papers delivered to
the Issuing Lender in connection therewith, in accordance with its customary
procedures and, subject to the terms and conditions hereof, shall promptly open
such Letter of Credit by issuing the original of such Letter of Credit to the
beneficiary thereof and by furnishing a copy thereof to Borrower and, after the
end of the calendar month in which such Letter of Credit was opened, to the
other Lenders; provided that no such Letter of Credit shall be issued if
subsection 3.1 would be violated thereby.
3.8. Payments in Respect of Letters of Credit. (a) Borrower agrees
forthwith upon demand by the Issuing Lender and otherwise in accordance with the
terms of the L/C Application relating thereto, (i) to reimburse the Issuing
Lender for any payment made by the Issuing Lender under any Letter of Credit
issued for the account of Borrower and (ii) to pay interest on any unreimbursed
portion of any such payment from the date of such payment until reimbursement in
full thereof at a rate per annum equal to (a) on or prior to the date which is
one Business Day after the day on which the Issuing Lender demands reimbursement
from
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Borrower for such payment, the Alternate Base Rate plus the Applicable Margin
for the Revolving Credit Loans and (b) thereafter, the Alternate Base Rate plus
the Applicable Margin for the Revolving Credit Loans plus 2%. Each drawing under
any Letter of Credit shall (unless an event of the type described in paragraph
(f) of Section 9 shall have occurred and be continuing, in which case the
procedures specified in this subsection 3.8 for payments in respect of Letters
of Credit shall apply) constitute a request by Borrower to the Administrative
Agent for a borrowing pursuant to subsection 3.1(a) of Alternate Base Rate Loans
(or, at the option of the Administrative Agent and the Swing Line Lender in
their sole discretion, a borrowing pursuant to subsection 3.4 of Swing Line
Loans) in the amount of such drawing. The Borrowing Date with respect to such
borrowing shall be the date of payment of the relevant drawing.
(b) In the event that the Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor forthwith upon demand of
the Issuing Lender, and otherwise in accordance with the terms of the L/C
Application relating to such Letter of Credit, the Issuing Lender will promptly
notify each other Revolving Credit Lender. Forthwith upon its receipt of any
such notice, each such other Lender will transfer to the Issuing Lender, in
immediately available funds, an amount equal to such other Lender's pro rata
share (based on its Revolving Credit Commitment) of the L/C Obligation arising
from such unreimbursed payment. Promptly, upon its receipt from such other
Lender of such amount, the Issuing Lender will complete, execute and deliver to
such other Lender an L/C Participation Certificate dated the date of such
receipt and in such amount.
(c) Whenever, at any time after the Issuing Lender has made a payment
under any Letter of Credit and has received from any other Revolving Credit
Lender such other Lender's pro rata share of the L/C Obligation arising
therefrom, the Issuing Lender receives any reimbursement on account of such L/C
Obligation or any payment of interest on account thereof, the Issuing Lender
will promptly distribute to such other Lender its pro rata share thereof in like
funds as received; provided that in the event that the receipt by the Issuing
Lender of such reimbursement or such payment of interest (as the case may be) is
required to be returned, such other Lender will return to the Issuing Lender any
portion thereof previously distributed by the Issuing Lender to it in like funds
as such reimbursement or payment is required to be returned by the Issuing
Lender.
3.9. Letter of Credit Fees. (a) In lieu of any letter of credit
commissions and fees provided for in any L/C Application relating to Standby or
Commercial L/Cs (other than standard issuance, amendment and negotiation fees),
Borrower agrees to pay the Administrative Agent, (i) for the account of the
Issuing Lender and the Participating Lenders, with respect to each Standby or
Commercial L/C issued for the account of Borrower, a Standby or Commercial L/C
fee, as the case may be, equal to the Applicable Margin for Revolving Credit
Loans which are Eurodollar Loans per annum; and (ii) in addition to the Standby
or Commer-
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cial L/C fee referred to in subsection 3.9(a)(i) above, for the account of the
Issuing Lender and not on account of its L/C Participating Interest therein,
0.25% per annum, each on the daily average amount available to be drawn under
each Standby L/C in the case of a Standby L/C and on the maximum face amount of
each Commercial L/C in the case of a Commercial L/C, in either case, payable, in
arrears, on the last day of each fiscal quarter of Borrower. The Administrative
Agent will disburse any Standby or Commercial L/C fees received pursuant to
subsection 3.9(a)(i) to the respective Lenders promptly following the receipt of
any such fees. Notwithstanding the foregoing, Borrower agrees to pay standard
issuance, amendment and negotiation fees to the Issuing Lender.
(b) For purposes of any payment of fees required pursuant to this
subsection 3.9, the Administrative Agent agrees to provide to Borrower a
statement of any such fees to be so paid; provided that the failure by the
Administrative Agent to provide Borrower with any such invoice shall not relieve
Borrower of its obligation to pay such fees.
3.10. Letter of Credit Reserves. (a) If any Change in Law shall either
(i) impose, modify, deem or make applicable any reserve, special deposit,
assessment or similar requirement against letters of credit issued by the
Issuing Lender or (ii) impose on the Issuing Lender any other condition
regarding this Agreement (with respect to Letters of Credit) or any Letter of
Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be the result of the Issuing
Lender's reasonable allocation of the aggregate of such cost increases resulting
from such events), then, upon demand by the Issuing Lender, Borrower shall
immediately pay to the Issuing Lender, from time to time as specified by the
Issuing Lender, additional amounts which shall be sufficient to compensate the
Issuing Lender for such increased cost, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the rate applicable to Alternate Base Rate Loans pursuant to subsection
4.5(b). Borrower shall not be required to make any payments to the Issuing
Lender for any additional amounts pursuant to this subsection 3.10(a) unless the
Issuing Lender has given written notice to Borrower of its intent to request
such payments prior to or within 60 days after the date on which the Issuing
Lender became entitled to claim such amounts. A certificate, setting forth in
reasonable detail the calculation of the amounts involved, submitted by the
Issuing Lender to Borrower concurrently with any such demand by the Issuing
Lender, shall be conclusive, absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law with respect to the Issuing
Lender shall, in the reasonable opinion of the Issuing Lender, require that any
obligation under any Letter of Credit be treated as an asset or otherwise be
included for purposes of calculating the appropriate amount of capital to be
maintained by the Issuing Lender or any corporation controlling the Issuing
Lender, and such Change in Law shall have the effect of reducing the rate
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of return on the Issuing Lender's or such corporation's capital, as the case may
be, as a consequence of the Issuing Lender's obligations under such Letter of
Credit to a level below that which the Issuing Lender or such corporation, as
the case may be, could have achieved but for such Change in Law (taking into
account the Issuing Lender's or such corporation's policies, as the case may be,
with respect to capital adequacy) by an amount deemed by the Issuing Lender to
be material, then from time to time following notice by the Issuing Lender to
Borrower of such Change in Law, within 15 days after demand by the Issuing
Lender, Borrower shall pay to the Issuing Lender such additional amount or
amounts as will compensate the Issuing Lender or such corporation, as the case
may be, for such reduction. The Issuing Lender agrees that, upon the occurrence
of any event giving rise to the operation of paragraph (a) or (b) of this
subsection 3.10 with respect to the Issuing Lender, it will, if requested by
Borrower and to the extent permitted by law or by the relevant Governmental
Authority, endeavor in good faith to avoid or minimize the increase in costs or
reduction in payments resulting from such event; provided that such avoidance or
minimization can be made in such a manner that the Issuing Lender, in its sole
determination, suffers no economic, legal or regulatory disadvantage. Borrower
shall not be required to make any payments to the Issuing Lender for any
additional amounts pursuant to this subsection 3.10(b) unless the Issuing Lender
has given written notice to Borrower of its intent to request such payments
prior to or within 60 days after the date on which the Issuing Lender became
entitled to claim such amounts. A certificate, in reasonable detail setting
forth the calculation of the amounts involved, submitted by the Issuing Lender
to Borrower concurrently with any such demand by the Issuing Lender, shall be
conclusive, absent manifest error, as to the amount thereof.
(c) Borrower and each Participating Lender agree that the provisions of
the foregoing paragraphs (a) and (b) shall apply equally to each Participating
Lender in respect of its L/C Participating Interest in such Letter of Credit, as
if the references in such paragraphs and provisions referred to, where
applicable, such Participating Lender or, in the case of paragraph (b), any
corporation controlling such Participating Lender.
3.11. Further Assurances. Borrower hereby agrees, from time to time, to
do and perform any and all acts and to execute any and all further instruments
reasonably requested by the Issuing Lender more fully to effect the purposes of
this Agreement and the issuance of Letters of Credit hereunder.
3.12. Obligations Absolute. The payment obligations of Borrower under
this Agreement with respect to the Letters of Credit shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) the existence of any claim, set-off, defense or other right which
Borrower or any of its Subsidiaries may have at any time against any
beneficiary, or any
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transferee, of any Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender, the
Administrative Agent or any Lender, or any other Person, whether in
connection with this Agreement, any Credit Document, the transactions
contemplated herein, or any unrelated transaction;
(ii) any statement or any other document presented under any Letter of
Credit proving to be forged, fraudulent or invalid or any statement therein
being untrue or inaccurate in any respect, except arising from the gross
negligence or willful misconduct on the part of the Issuing Lender;
(iii) payment by the Issuing Lender under any Letter of Credit against
presentation of a draft or certificate or other document which does not
comply with the terms of such Letter of Credit or is insufficient in any
respect, except where such payment constitutes gross negligence or willful
misconduct on the part of the Issuing Lender; or
(iv) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except for any such circumstances or
happening constituting gross negligence or willful misconduct on the part of
the Issuing Lender.
3.13. Participations. The obligation of each Revolving Credit Lender to
purchase participating interests pursuant to subsection 3.6 shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Credit Lender may have against the Issuing Lender,
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of an Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of Borrower; (iv) any breach of this Agreement by
Borrower or any other Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1. Procedure for Borrowing. (a) Borrower may borrow under the
Commitments on any Business Day; provided that, with respect to any borrowing,
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 11:00 a.m. (or, with
respect to Swing Line Loans, 1:00 p.m.), New York City time, (i) three Business
Days prior to the requested Borrowing Date if all or any part of the Loans are
to be Eurodollar Loans and (ii) one Business Day prior to the requested
Borrowing Date (or, in the case of Swing Line Loans and, if the Closing Date
occurs on the date this Agreement is executed and delivered, Loans made on the
Closing Date, on the requested Borrowing Date) if the borrowing is to be solely
of Alternate Base Rate Loans) and specifying
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(a) the amount of the borrowing, (b) whether such Loans are initially to be
Eurodollar Loans or Alternate Base Rate Loans or a combination thereof, (c) if
the borrowing is to be entirely or partly Eurodollar Loans, the length of the
Interest Period for such Eurodollar Loans and (d) whether the Loan is a Tranche
A Term Loan or a Tranche B Term Loan, a Swing Line Loan or Revolving Credit
Loan. Upon receipt of such notice the Administrative Agent shall promptly notify
each affected Lender thereof. Not later than 11:00 a.m., New York City time, on
the Borrowing Date specified in such notice, each affected Lender shall make
available to the Administrative Agent at the office of the Administrative Agent
specified in subsection 11.2 (or at such other location as the Administrative
Agent may direct) an amount in immediately available funds equal to the amount
of the Loan to be made by such Lender (except that proceeds of Swing Line Loans
will be made available to Borrower in accordance with subsection 3.4(a)). Loan
proceeds received by the Administrative Agent hereunder shall promptly be made
available to Borrower by the Administrative Agent's crediting the account of
Borrower, at the office of the Administrative Agent specified in subsection
11.2, with the aggregate amount actually received by the Administrative Agent
from the Lenders and in like funds as received by the Administrative Agent.
(b) Any borrowing of Eurodollar Loans hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of all Eurodollar Loans having the
same Interest Period shall not be less than $5,000,000 or a whole multiple of
$1,000,000 in excess thereof, and (ii) no more than seven Interest Periods shall
be in effect at any one time.
4.2. Conversion and Continuation Options. (a) Subject to subsection
4.12, Borrower may elect from time to time to convert Eurodollar Loans into
Alternate Base Rate Loans by giving the Administrative Agent irrevocable notice
of such election, to be received by the Administrative Agent prior to 11:00
a.m., New York City time, at least three Business Days prior to the proposed
conversion date. Borrower may elect from time to time to convert all or a
portion of the Alternate Base Rate Loans (other than Swing Line Loans) then
outstanding to Eurodollar Loans by giving the Administrative Agent irrevocable
notice of such election, to be received by the Administrative Agent prior to
11:00 a.m., New York City time, at least three Business Days prior to the
proposed conversion date, specifying the Interest Period selected therefor. Such
conversion shall be made on the requested conversion date or, if such requested
conversion date is not a Business Day, on the next succeeding Business Day;
provided that no such conversion shall be made when any Event of Default has
occurred and is continuing and the Required Lenders have, by prior written
notice to Borrower, determined that such conversion is not appropriate. Upon
receipt of any notice pursuant to this subsection 4.2, the Administrative Agent
shall promptly notify each affected Lender thereof. All or any part of the
outstanding Loans (other than Swing Line Loans) may be converted as provided
herein; provided that partial conversions of Alternate Base Rate Loans shall be
in the aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and
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the aggregate principal amount of the resulting Eurodollar Loans outstanding in
respect of any one Interest Period shall be at least $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in subsection 1.1, of the length of the
next Interest Period to be applicable to such Loans; provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Required Lenders have, by written notice to Borrower,
determined that such a continuation is not appropriate, (ii) if, after giving
effect thereto, subsection 4.1(b) would be contravened or (iii) after the date
that is one month prior to the Revolving Credit Termination Date (in the case of
continuations of Revolving Credit Loans) or the final Installment Payment Date
of the Term Loans.
4.3. Changes of Commitment Amounts. (a) Borrower shall have the right,
upon not less than three Business Days' notice to the Administrative Agent, to
terminate or from time to time to permanently reduce the Revolving Credit
Commitments or the Tranche A Term Loan Commitments, subject to the provisions of
this subsection 4.3.
To the extent, if any, that the sum of the amount of the Revolving
Credit Loans, Swing Line Loans and L/C Obligations then outstanding and the
amounts available to be drawn under outstanding Letters of Credit exceeds the
amount of the Revolving Credit Commitments as then reduced, Borrower shall be
required to make a prepayment equal to such excess amount, the proceeds of which
shall be applied, first, to payment of the Swing Line Loans then outstanding,
second, to payment of the Revolving Credit Loans then outstanding, third, to
payment of any L/C Obligations then outstanding, and fourth, to cash
collateralize any outstanding Letters of Credit on terms reasonably satisfactory
to the Administrative Agent. Any such termination of the Revolving Credit
Commitments shall be accompanied by prepayment of the excess of the sum of the
Revolving Credit Loans, Swing Line Loans and L/C Obligations then outstanding
over the then outstanding Revolving Credit Commitments and by cash
collateralization of any outstanding Letters of Credit on terms reasonably
satisfactory to the Administrative Agent. Upon termination of the Revolving
Credit Commitments, any Letter of Credit then outstanding that has been so cash
collateralized shall no longer be considered a "Letter of Credit" as defined in
subsection 1.1 and any L/C Participating Interests heretofore granted by the
Issuing Lender to the Lenders in such Letter of Credit shall be deemed
terminated (subject to automatic reinstatement in the event that such cash
collateral is returned and the Issuing Lender is not fully reimbursed for any
such L/C Obligations) but the Letter of Credit fees payable under subsection 3.9
shall continue to accrue to the Issuing Lender and the Participating Lenders
(or, in the event of any such automatic reinstatement, as provided in subsection
3.9) with respect to such Letter of Credit until the expiry
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thereof (provided that in lieu of paying a Standby or Commercial L/C fee, as the
case may be, equal to the Applicable Margin for Revolving Credit Loans which are
Eurodollar Loans per annum, Borrower shall pay to the Administrative Agent an
amount equal to 0.25% per annum).
(b) In the case of termination of the Revolving Credit Commitments,
interest accrued on the amount of any prepayment relating thereto and any unpaid
commitment fee accrued hereunder shall be paid on the date of such termination.
Any such partial reduction of the Revolving Credit Commitments shall be in an
amount of $5,000,000 or a whole multiple of $100,000 in excess thereof and
shall, in each case, reduce permanently the amount of the Revolving Credit
Commitments then in effect.
4.4. Optional and Mandatory Prepayments; Repayments of Term Loans.
(a) Optional Prepayments. Subject to subsection 4.12, Borrower may at
any time and from time to time prepay Loans, in whole or in part, without
premium or penalty, by irrevocable written notice to the Administrative Agent by
12:00 noon, New York City time, on the same Business Day in the case of
Alternate Base Rate Loans, and one Business Day's notice in the case of
Eurodollar Loans, specifying the date and amount of prepayment and whether the
prepayment is of Revolving Credit Loans or Term Loans. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender thereof. If
such notice is given, Borrower shall make such prepayment, and the payment
amount specified in such notice shall be due and payable, on the date specified
therein. Partial prepayments of Term Loans shall be in an aggregate principal
amount equal to the lesser of (a) (i) $1,000,000 or a whole multiple of $100,000
in excess thereof with respect to Eurodollar Loans or (ii) $500,000 or a whole
multiple of $100,000 in excess thereof with respect to Alternate Base Rate Loans
and (b) the aggregate unpaid principal amount of the applicable Term Loan.
Partial prepayments of Revolving Credit Loans shall be in an aggregate principal
amount equal to the lesser of (a)(i) $1,000,000 or a whole multiple of $100,000
in excess thereof with respect to Eurodollar Loans or (ii) $500,000 or a whole
multiple of $100,000 in excess thereof with respect to Alternate Base Rate Loans
and (b) the aggregate unpaid principal amount of the Revolving Credit Loans (or
the aggregate unpaid principal amount of Revolving Credit Loans maintained as
Alternate Base Rate Loans (in the case of a prepayment of such Revolving Credit
Loans) or as Eurodollar Loans with a single Interest Period (in the case of a
prepayment of such Revolving Credit Loans)), as the case may be. Prepayments of
the Term Loans pursuant to this subsection 4.4(a) shall be applied in accordance
with subsection 4.4(f) below.
(b) Mandatory Prepayments. (i) So long as any Term Loans are
outstanding, if, subsequent to the Closing Date, any Credit Party or any of its
Subsidiaries shall issue any Capital Stock (other than to any Credit Party or
any of its wholly owned Subsidiaries) (it being understood that the issuance of
debt securities convertible into, or exchangeable or exercisable
-48-
for, Capital Stock shall be governed by subsection 4.4(b)(ii) below), 50% of the
Net Proceeds thereof shall be applied within five Business Days of receipt
thereof toward the prepayment of the Term Loans in accordance with subsection
4.4(f) below; provided, however, that the foregoing shall not apply to employee
benefit and stock option plans and Capital Stock issued in connection with
Permitted Acquisitions.
(ii) If, subsequent to the Closing Date, any Credit Party or any of its
Subsidiaries shall incur or permit the incurrence of any Indebtedness (including
pursuant to debt securities which are convertible into, or exchangeable or
exercisable for, Capital Stock but excluding any Indebtedness permitted by
subsection 8.1 other than subsection 8.1(g)), 100% of the Net Proceeds thereof
shall be applied within five Business Days of receipt thereof toward the
prepayment of the Term Loans in accordance with subsection 4.4(f) below.
(iii) If, subsequent to the Closing Date, any Credit Party or any of
its Subsidiaries shall receive Net Proceeds from any Asset Sale, 100% of such
Net Proceeds shall be applied within five Business Days of receipt thereof
toward the prepayment of the Term Loans in accordance with subsection 4.4(f)
below; provided that such Net Proceeds need not be applied to the prepayment
of Term Loans until the date that the aggregate amount of Net Proceeds received
by any Credit Party or any of its Subsidiaries from any Asset Sales exceeds
$5,000,000 (and has not yet been applied to the prepayment of Term Loans
hereunder).
(iv) If, subsequent to the Closing Date, any Credit Party or any of its
Subsidiaries shall receive proceeds from insurance recoveries in respect of any
Destruction in excess of $10,000,000 (but in any event excluding proceeds of
business interruption insurance) or any proceeds or awards in respect of Taking,
100% of the Net Proceeds thereof shall be applied within five Business Days of
receipt thereof toward the prepayment of the Term Loans in accordance with
subsection 4.4(f) below (it being agreed that subject to subsection 8.5(l), any
amounts paid or payable in connection with a Destruction or Taking which are not
then required to be used to pay or prepay Loans, shall be paid to the applicable
Credit Party or Subsidiary of a Credit Party).
(v) If (a) for any fiscal year of MCL commencing with its fiscal year
ending on December 31, 2003, there shall be Excess Cash Flow for such fiscal
year and (b) at the last day of such fiscal year the Leverage Ratio was equal to
or greater than 2.0 : 1.0, 50% of such Excess Cash Flow shall be applied not
later than 30 days after the delivery of annual financial statements in
accordance with subsection 7.1(a) toward prepayment of the Term Loans in
accordance with subsection 4.4(f) below.
(c) Repayment of Tranche A Term Loans. The Tranche A Term Loans shall
be repaid in consecutive quarterly installments on the dates set forth below
(each such day, a "Tranche A Installment Payment Date"), commencing on March
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31, 2004, in an aggregate amount equal to the percentage specified of the
outstanding Tranche A Term Loans on March 31, 2004, for each such Tranche A
Installment Payment Date (in each case subject to reduction as described in
subsections 4.4(a), (b) and (f)).
Installment Payment Date Installment Amount
------------------------ ------------------
March 31, 2004 6.6666%
June 30, 2004 6.6666%
September 30, 2004 6.6666%
December 31, 2004 6.6666%
March 31, 2005 6.6666%
June 30, 2005 6.6666%
September 30, 2005 6.6666%
December 31, 2005 6.6666%
March 31, 2006 6.6666%
June 30, 2006 6.6666%
September 30, 2006 6.6666%
December 31, 2006 6.6666%
March 31, 2007 6.6666%
June 30, 2007 6.6666%
August 2, 2007 6.6676%
Amounts repaid on account of the Tranche A Term Loans pursuant to this
subsection or otherwise may not be reborrowed. Accrued interest on the amount of
any prepayment shall be paid on the Interest Payment Date next succeeding the
date of any partial prepayment and on the date of such prepayment in the case of
a prepayment in full of the Tranche A Term Loans.
(d) Repayment of the Tranche B Term Loans. The Tranche B Term Loans
shall be repaid in consecutive quarterly installments on the dates set forth
below (each such day, a "Tranche B Installment Payment Date"), commencing on
September 30, 2002, in an aggregate amount equal to the percentage specified of
the outstanding Tranche B Term Loans on September 30, 2002, for each such
Tranche B Installment Payment Date (in each case subject to reduction as
described in subsections 4.4(a), (b) and (f)).
Installment Payment Date Installment Amount
------------------------ ------------------
September 30, 2002 .25%
December 31, 2002 .25%
March 31, 2003 .25%
June 30, 2003 .25%
September 30, 2003 .25%
December 31, 2003 .25%
March 31, 2004 .25%
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Installment Payment Date Installment Amount
------------------------ ------------------
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 23.75%
December 31, 2007 23.75%
March 31, 2008 23.75%
August 2, 2008 23.75%
Amounts repaid on account of the Tranche B Term Loans pursuant to this
subsection or otherwise may not be reborrowed. Accrued interest on the amount of
any prepayments shall be paid on the Interest Payment Date next succeeding the
date of any partial prepayment and on the date of such prepayment in the case of
a prepayment in full of the Tranche B Term Loans.
(e) Tranche B Prepayment Option Notice. Notwithstanding the other
provisions of this subsection 4.4, with respect to the amount of any mandatory
prepayment described therein that is allocated to Tranche B Term Loans (such
amount or, if less, the aggregate principal amount of Tranche A Term Loans then
outstanding (after application of the portion of the optional or mandatory
prepayment required to be applied thereto), the "Tranche B Prepayment Amount"),
at any time when Tranche A Term Loans remain outstanding, the Administrative
Agent shall promptly provide to each Tranche B Lender a notice of such
prepayment (each, a "Tranche B Prepayment Option Notice") as described below.
Each Tranche B Prepayment Option Notice shall be in writing, shall refer to this
subsection 4.4(e) and shall (i) set forth the Tranche B Prepayment Amount and
the portion thereof that the applicable Tranche B Lender will be entitled to
receive if it accepts such mandatory prepayment in accordance with this
subsection 4.4(e), (ii) state that Borrower is offering to prepay on a specified
date (each, a "Tranche B Prepayment Acceptance Date"), which shall be not fewer
than four days or more than six days after the date of the Tranche B Prepayment
Option Notice, the Tranche B Term Loans of such Tranche B Lender in an amount
equal to the portion of the Tranche B Prepayment Amount indicated in such
Tranche B Lender's Tranche B Prepayment
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Option Notice as being applicable to such Tranche B Lender, (iii) request such
Tranche B Lender to notify Borrower and the Administrative Agent in writing, no
later than the second day prior to the Tranche B Prepayment Acceptance Date, of
such Tranche B Lender's acceptance or rejection of such offer of prepayment and
(iv) inform such Tranche B Lender that failure by such Tranche B Lender to
accept or reject such offer in writing on or before the second day prior to the
Tranche B Prepayment Acceptance Date shall be deemed an acceptance of such
prepayment offer. Each Tranche B Prepayment Option Notice shall be given by
telecopy, confirmed by hand delivery, overnight courier service or registered or
certified mail, in each case addressed as provided in subsection 11.2. On the
Tranche B Prepayment Acceptance Date, Borrower shall pay the Administrative
Agent in immediately available funds (i) the aggregate amount necessary to
prepay the portion of the Tranche B Prepayment Amount in respect of which the
Tranche B Lenders have accepted prepayment as described above (such Tranche B
Lenders, the "Accepting Tranche B Lenders"), and the Administrative Agent shall
apply such amount on behalf of Borrower in inverse order against the remaining
installments of principal due in respect of the Tranche B Term Loans of the
Accepting Tranche B Lenders, and (ii) the aggregate amount of the portion of the
Tranche B Prepayment Amount not accepted by the Tranche B Lenders, and the
Administrative Agent shall apply such amount on behalf of Borrower pro rata
against the remaining installments of principal due in respect of the Tranche A
Term Loans.
(f) Application of Optional and Mandatory Term Loan Prepayments.
Optional prepayments of Term Loans pursuant to subsection 4.4(a) shall be
applied as elected by Borrower. Mandatory prepayments of Terms Loans pursuant to
subsection 4.4(b) shall be applied pro rata to the Tranche A Term Loans and the
Tranche B Term Loans; within each Tranche prepayments will be applied to the
remaining installments of principal on a pro rata basis for the Tranche A Term
Loans and in inverse order for the Tranche B Term Loans. Except as otherwise may
be directed by Borrower, any prepayment of Loans pursuant to this subsection 4.4
shall be applied, first, to any Alternate Base Rate Loans of the applicable
Tranche then outstanding and the balance of such prepayment, if any, to the
Eurodollar Loans of the applicable Tranche then outstanding; provided that
prepayments of Eurodollar Loans, if not on the last day of the Interest Period
with respect thereto, shall, at the option of Borrower, be prepaid subject to
the provisions of subsection 4.12 or the amount of such prepayment (after
application to any Alternate Base Rate Loans) shall be deposited with the
Administrative Agent as cash collateral for the Loans on terms reasonably
satisfactory to the Administrative Agent and thereafter shall be applied in the
order of the Interest Periods of the applicable Tranche next ending most closely
to the date such prepayment is required to be made and on the last day of each
such Interest Period. After such application, unless an Event of Default shall
have occurred and be continuing (in which case such interest shall be held as
cash collateral or applied by the Administrative Agent to any Obligations then
due and payable), any remaining interest earned on such cash collateral shall be
paid to Borrower.
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(g) Application of Prepayments After No Term Loans Outstanding. After
such time as no Term Loans remain outstanding, the Revolving Credit Commitments
shall be permanently reduced pro rata in an amount equal to the remaining amount
of any such required prepayment that would have been applied to the Term Loans
(at the same time that the prepayment of the Term Loans would have been made and
assuming an unlimited amount thereof then outstanding) and to the extent that,
after giving effect to such reduction, the aggregate principal amount of
Revolving Credit Loans, plus the aggregate principal amount of Swing Line Loans,
plus the aggregate amount of all L/C Obligations would exceed the Revolving
Credit Commitments, Borrower shall, first, prepay outstanding Swing Line Loans,
second, prepay outstanding Revolving Credit Loans and, third, provide cash
collateral for L/C Obligations in a manner acceptable to the Administrative
Agent, in an amount equal to 105% of such L/C Obligations.
4.5. Interest Rates and Payment Dates. (a) Eurodollar Loans shall bear
interest for each day during each Interest Period applicable thereto, commencing
on (and including) the first day of such Interest Period to, but excluding, the
last day of such Interest Period, on the unpaid principal amount thereof at a
rate per annum equal to the Eurodollar Rate determined for such Interest Period
plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period from
and including the date such Loans are made to, but excluding, the maturity date
thereof, or to, but excluding, the conversion date if such Loans are earlier
converted into Eurodollar Loans on the unpaid principal amount thereof at a rate
per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of an Event of
Default, the Loans shall, without limiting the rights of the Lenders under
Section 9, bear interest (which shall be payable on demand) at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 365
days) equal to the otherwise then applicable interest rate plus 2%.
(d) Except as otherwise expressly provided for in this subsection 4.5,
interest shall be payable in arrears (i) for Eurodollar Loans, at the end of
each Interest Period (or, for any Interest Period longer than three months, at
three month intervals following the first day of such Interest Period) and on
the final maturity of the Loans, and (ii) for Alternate Base Rate Loans,
quarterly in arrears and on the final maturity of the Loans.
4.6. Computation of Interest and Fees. (a) Interest in respect of
Alternate Base Rate Loans shall be calculated on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be (except when
the Alternate Base Rate is determined pursuant to clause (3) of the definition
thereof). Interest in respect of Eurodollar Loans and Alternate Base Rate Loans
under clause (3) of the definition thereof (and all fees here-
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under) shall be calculated on the basis of the actual number of days elapsed
over a year of 360 days. The Administrative Agent shall as soon as practicable
notify Borrower and the Lenders of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the Alternate
Base Rate or the Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change in the Alternate Base
Rate is announced or such change in the Eurocurrency Reserve Requirements
becomes effective, as the case may be. The Administrative Agent shall as soon as
practicable notify Borrower and the Lenders of the effective date and the amount
of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
Borrower and the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of Borrower or any Lender, deliver to Borrower or
such Lender a statement showing the quotations used by the Administrative Agent
in determining the Eurodollar Rate.
4.7. Certain Fees. Borrower agrees to pay to the Administrative Agent,
for its own account, a non-refundable agent's fee in an amount previously agreed
to with the Administrative Agent, payable annually in advance on the Closing
Date and on each anniversary thereof unless all Loans have been (or are on such
date) repaid and all Commitments hereunder have been (or are on such date)
terminated.
4.8. Inability to Determine Interest Rate. In the event that the
Administrative Agent or the Required Lenders shall have reasonably determined
(which determination shall be conclusive and binding upon Borrower) that (a) by
reason of circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for any
Interest Period with respect to (i) proposed Loans that Borrower has requested
be made as Eurodollar Loans, (ii) any Eurodollar Loans that will result from the
requested conversion of all or part of the Alternate Base Rate Loans into
Eurodollar Loans or (iii) the continuation of any Eurodollar Loan as such for an
additional Interest Period, or (b) dollar deposits in the relevant amount and
for the relevant period with respect to any such Eurodollar Loan are not
generally available to the Lenders in their respective Eurodollar Lending
Offices' interbank eurodollar markets, the Administrative Agent shall forthwith
give telecopy notice of such determination, confirmed in writing, to Borrower
and the Lenders at least one day prior to, as the case may be, the requested
Borrowing Date, the conversion date or the last day of such Interest Period. If
such notice is given (i) any requested Eurodollar Loans shall be made as
Alternate Base Rate Loans, (ii) any Alternate Base Rate Loans that were to have
been converted to Eurodollar Loans shall be continued as Alternate Base Rate
Loans, and (iii) any outstanding Eurodollar Loans shall be converted on the last
day of the then current Interest Period applicable thereto into Alternate Base
Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans shall be made and no Alternate Base Rate Loans shall be
converted to Eurodollar Loans.
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4.9. Pro Rata Treatment and Payments. (a) Except to the extent
otherwise provided herein, each borrowing of Loans by Borrower from the Lenders
and any reduction of the Commitments of the Lenders hereunder shall be made pro
rata according to the relevant Commitment Percentages of the Lenders with
respect to the Loans borrowed or the Commitments to be reduced.
(b) Whenever any payment received by the Administrative Agent under
this Agreement or any Note or any other Credit Document is insufficient to pay
in full all amounts then due and payable to the Administrative Agent and the
Lenders under this Agreement, such payment shall be distributed by the
Administrative Agent and applied by the Administrative Agent and the Lenders in
the following order: first, to pay interest on and then principal of any portion
of the Revolving Credit Loans that the Administrative Agent may have advanced on
behalf of any Lender for which the Administrative Agent has not then been
reimbursed by such Lender or Borrower; second, to pay interest on and then
principal of any Swing Line Loan; third, to pay Obligations in respect of any
expense reimbursements or indemnities then due to the Administrative Agent;
fourth, to pay Obligations in respect of any expense reimbursements or
indemnities then due to the Lenders and any of their Affiliates; fifth, to pay
Obligations in respect of any fees then due to the Administrative Agent, the
Lenders and any of their respective Affiliates; sixth, to pay interest then due
and payable in respect of the Loans and L/C Obligations; seventh, to pay or
prepay principal amounts on the Loans and L/C Obligations and to provide cash
collateral for outstanding undrawn Standby L/Cs and Commercial L/Cs in the
manner described in subsection 4.4(g), ratably to the aggregate principal amount
of such Loans, L/C Obligations and outstanding undrawn Standby L/Cs and
Commercial L/Cs; and eighth, to the ratable payment of all other Obligations.
(c) If any Lender (a "Non-Funding Lender") has (x) failed to make a
Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Revolving Credit Loan or (y) given notice to Borrower or the Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loan, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, or otherwise, (i) any payment made on account of the principal
of the Revolving Credit Loans outstanding shall be made as follows:
(A) in the case of any such payment made on any date when and to the
extent that in the determination of the Administrative Agent, Borrower would
be able under the terms and conditions hereof to reborrow the amount of such
payment under the Commitments and to satisfy any applicable conditions
precedent set forth in Section 6 to such reborrowing, such payment shall be
made on account of the outstanding Revolving Credit Loans held by the
Lenders other than the Non-Funding Lender pro
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rata according to the respective outstanding principal amounts of the
Revolving Credit Loans of such Lenders; and
(B) otherwise, such payment shall be made on account of the outstanding
Revolving Credit Loans held by the Lenders pro rata according to the
respective outstanding principal amounts of such Revolving Credit Loans; and
(ii) any payment made on account of interest on the Revolving Credit Loans shall
be made pro rata according to the respective amounts of accrued and unpaid
interest due and payable on the Revolving Credit Loans with respect to which
such payment is being made. Borrower agrees to give the Administrative Agent
such assistance in making any determination pursuant to subparagraph (i)(A) of
this paragraph (c) as the Administrative Agent may reasonably request. Any such
determination by the Administrative Agent shall be conclusive and binding on the
Lenders.
(d) All payments (including prepayments) to be made by Borrower on
account of principal, interest and fees shall be made without set-off,
counterclaim or other defense and shall be made to the Administrative Agent, for
the account of the Lenders at the Administrative Agent's office located at ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in lawful money of the United
States and in immediately available funds. The Administrative Agent shall
promptly distribute such payments in accordance with the provisions of
subsection 4.9(b) upon receipt in like funds as received. If any payment
hereunder (other than payments on Eurodollar Loans) would become due and payable
on a day other than a Business Day, such payment shall become due and payable on
the next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day (and with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension),
unless the result of such extension would be to extend such payment into another
calendar month in which event such payment shall be made on the immediately
preceding Business Day.
(e) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
which would constitute its Commitment Percentage of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent in accordance with
subsection 4.1 and the Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Rate for the
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period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this subsection 4.9(e) shall be
conclusive absent manifest error. If such Lender's Commitment Percentage of such
borrowing is not in fact made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to Alternate Base Rate Loans hereunder (in lieu of any
otherwise applicable interest), on demand, from Borrower, without prejudice to
any rights which any such Borrower or the Administrative Agent may have against
such Lender hereunder. Nothing contained in this subsection 4.9 shall relieve
any Lender which has failed to make available its ratable portion of any
borrowing hereunder from its obligation to do so in accordance with the terms
hereof.
(f) The failure of any Lender to make the Loan to be made by it on any
Borrowing Date shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on such Borrowing Date.
(g) All payments and optional prepayments (other than prepayments as
set forth in subsection 4.11 with respect to increased costs) of Eurodollar
Loans hereunder shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Loans with the same Interest Period shall not be less than $5,000,000
plus a whole multiple of $1,000,000 in excess thereof.
4.10. Illegality. Notwithstanding any other provision herein, if any
Change in Law occurring after the date that any lender becomes a Lender party to
this Agreement shall make it unlawful for such Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, the commitment of such
Lender hereunder to make Eurodollar Loans or to convert all or a portion of
Alternate Base Rate Loans into Eurodollar Loans shall forthwith be suspended
until such time, if any, as such illegality shall no longer exist and such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans for the duration of the respective
Interest Periods (or, if permitted by applicable law, at the end of such
Interest Periods) and all payments of principal which would otherwise be applied
to such Eurodollar Loans shall be applied instead to such Lender's Alternate
Base Rate Loans. Borrower hereby agrees to pay any Lender, promptly upon its
demand, any amounts payable pursuant to subsection 4.12 in connection with any
conversion in accordance with this subsection 4.10 (such Lender's notice of such
costs, as certified in reasonable detail as to such amounts to Borrower through
the Administrative Agent, to be conclusive absent manifest error).
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4.11. Requirements of Law. (a) In the event that any Change in Law or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority
occurring after the date that any lender becomes a Lender party to this
Agreement:
(i) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender which are not otherwise included in the
determination of the Eurodollar Rate; or
(ii) does or shall impose on such Lender any other condition which is
applicable to lenders generally;
and the result of any of the foregoing is to increase the cost to such Lender or
its Eurodollar Lending Office of making, converting, renewing or maintaining
advances or extensions of credit or to reduce any amount receivable hereunder,
in each case, in respect of its Eurodollar Loans, then, in any such case,
Borrower shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such Lender
with respect to such Eurodollar Loans, together with interest on each such
amount from the date demanded until payment in full thereof at a rate per annum
equal to the Alternate Base Rate plus 1%.
(b) In the event that any Change in Law occurring after the date that
any lender becomes a Lender party to this Agreement with respect to any such
Lender shall, in the reasonable opinion of such Lender, require that any
Commitment of such Lender be treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of capital to be maintained by
such Lender or any corporation controlling such Lender, and such Change in Law
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital, as the case may be, as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation, as the case may be, could have achieved but for such Change in Law
(taking into account such Lender's or such corporation's policies, as the case
may be, with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time following notice by such Lender to Borrower
of such Change in Law as provided in paragraph (c) of this subsection 4.11,
within 15 days after demand by such Lender, Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation on an after-tax basis, as the case may be, for such reduction.
(c) Borrower shall not be required to make any payments to any Lender
for any additional amounts pursuant to this subsection 4.11 unless such Lender
has given written no-
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▇▇▇▇ to Borrower, through the Administrative Agent, of its intent to request
such payments prior to or within 60 days after the date on which such Lender
became entitled to claim such amounts. If any Lender has notified Borrower
through the Administrative Agent of any increased costs pursuant to paragraph
(a) of this subsection 4.11, Borrower at any time thereafter may, upon at least
three Business Days' notice to the Administrative Agent (which shall promptly
notify the Lenders thereof), and subject to subsection 4.12, prepay (or convert
into Alternate Base Rate Loans) all (but not a part) of the Eurodollar Loans of
the applicable Lender then outstanding. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of paragraph (a) of this
subsection 4.11 with respect to such Lender, it will, if requested by Borrower
and to the extent permitted by law or by the relevant Governmental Authority,
endeavor in good faith to avoid or minimize the increase in costs or reduction
in payments resulting from such event (including, without limitation,
endeavoring to change its Eurodollar Lending Office); provided that such
avoidance or minimization can be made in such a manner that such Lender, in its
sole determination, suffers no economic, legal or regulatory disadvantage. If
any Lender requests compensation from any Borrower under this subsection 4.11,
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or continue
Loans of the Type with respect to which such compensation is requested, or to
convert Loans of any other Type into Loans of such Type, until the Requirement
of Law giving rise to such request ceases to be in effect; provided that such
suspension shall not affect the right of such Lender to receive the compensation
so requested.
(d) (i) All payments by Borrower to or for the account of any Lender or
Administrative Agent hereunder or under any Note shall be made without setoff,
counterclaim or other defense and free and clear of, and without deduction or
withholding for, any and all Taxes (other than Excluded Taxes). If Borrower
shall be required by law to deduct or withhold any Taxes (other than Excluded
Taxes) from or in respect of any sum payable hereunder or under any Note to any
Lender or Administrative Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums payable
under this subsection 4.11(d)) such Lender or Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions or withholdings been made (without taking into account Excluded
Taxes, but taking into account any related expenses incurred by such Lender or
Administrative Agent), (b) Borrower shall make such deductions or withholdings,
(c) Borrower shall timely pay the full amount deducted or withheld to the
relevant authority in accordance with applicable law and (d) Borrower shall
furnish to Administrative Agent the original copy of a receipt evidencing
payment thereof (or other proof of payment reasonably satisfactory to the
Administrative Agent) within 30 days after such payment is made.
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(ii) In addition, Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any Note ("Other Taxes").
(iii) Borrower hereby agrees to indemnify Administrative Agent and each
Lender for the full amount of Taxes (other than Excluded Taxes) or Other Taxes
(including, without limitation, any Taxes (other than Excluded Taxes) or Other
Taxes imposed on amounts payable under this subsection 4.11(d)) paid by
Administrative Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted; provided, however,
that Borrower shall not be obligated to so indemnify in respect of interest or
penalties attributable to any Taxes or Other Taxes: (1) to the extent that such
interest or penalties resulted from the failure of the Administrative Agent or
such Lender to notify Borrower of the imposition of such Taxes or Other Taxes
within 60 days after the Administrative Agent or the Lender (as the case may be)
actually received written notice of such imposition from the applicable taxing
authority or (2) such interest or penalties resulted from the gross negligence
or willful misconduct of the Administrative Agent or such Lender. Payments due
under this indemnification shall be made within 30 days of the date
Administrative Agent or such Lender makes written demand therefor together with
a reasonable explanation of such demand.
(iv) Each Lender or Assignee that is not a United States Person (as
defined in Section 7701(a)(30) of the Code) for federal income tax purposes
either (1) (i) agrees to furnish to Borrower, with a copy to the Administrative
Agent, either U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN (or successor form) (wherein such Lender claims entitlement
on the Closing Date or such Assignee claims entitlement on the date it becomes
an Assignee to a complete exemption from U.S. federal withholding tax with
respect to all interest payments hereunder (or, in the case of an Assignee, an
exemption or reduction in U.S. federal withholding tax at least as extensive as
the exemption or reduction to which the assignor Lender was entitled at the time
of such assignment)) and (ii) agrees (for the benefit of Borrower and the
Administrative Agent), to the extent it may lawfully do so at such times, upon
reasonable request by Borrower or the Administrative Agent, to provide to
Borrower, with a copy to the Administrative Agent, a new Form W-8ECI or Form
W-8BEN (or successor form) upon the expiration or obsolescence of any previously
delivered form to reconfirm any complete exemption from, or any entitlement to a
reduction in, U.S. federal withholding tax with respect to any interest payment
hereunder or (2) in the case of any such Lender or Assignee that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (i) agrees to furnish to
Borrower, with a copy to the Administrative Agent, either (a) a Non-Bank
Certificate and two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN (or successor form) or (b) an Internal Revenue Form
W-8ECI (or successor form), certifying (in each case) to such Lender's legal
entitlement
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on the Closing Date (or, in the case of an Assignee, its legal entitlement on
the date it becomes an Assignee) to a complete exemption from U.S. federal
withholding tax with respect to all interest payments hereunder (or, in the case
of an Assignee, an exemption or reduction in U.S. federal withholding tax at
least as extensive as the exemption or reduction to which the assignor Lender
was entitled at the time of such assignment), and (ii) agrees (for the benefit
of Borrower and the Administrative Agent) to the extent it may lawfully do so at
such times, upon reasonable request by Borrower or the Administrative Agent, to
provide to Borrower, with a copy to the Administrative Agent, a new Form W-8BEN
or W-8ECI (or successor form) upon the expiration or obsolescence of any
previously delivered form to reconfirm any complete exemption from, or any
entitlement to a reduction in, U.S. federal withholding tax with respect to any
interest payment hereunder. Notwithstanding any provision of this subsection
4.11 to the contrary, Borrower shall have no obligation to pay any amount to or
for the account of any Lender or Assignee (or the Eurodollar Lending Office of
any Lender or Assignee) on account of any Taxes pursuant to this subsection 4.11
(which failure shall include, solely for purposes of this sentence, an inability
to provide new forms because a Lender or Assignee could not lawfully do so at
such time(s)), to the extent that such amount results from the failure of any
Lender or Assignee to comply with its obligations pursuant to this clause
4.11(d)(iv), unless such failure would not have occurred but for a Change in
Law.
(v) If Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this subsection 4.11(d) as a result of a
Change in Law, then such Lender will, at the request of Borrower, change the
jurisdiction of its applicable lending office if such change (i) will eliminate
or reduce any such additional payment which may thereafter accrue and (ii) is,
in such Lender's reasonable discretion, determined not to be materially
disadvantageous to and not to cause material hardship to such Lender; provided
that any fees, charges, costs or expenses that would be incurred by such Lender
in connection with such change shall be borne by Borrower, and the mere
existence of such fees, charges, costs or expenses shall not be deemed to be
materially disadvantageous to or to cause material hardship to such Lender if
Borrower pays all such fees, charges, costs and expenses before any change is
made to such Lender's applicable lending office (or otherwise provides assurance
reasonably satisfactory to such Lender that all such fees, charges, costs and
expenses will be paid).
(vi) If and to the extent that any Lender determines (in its sole
discretion) that it has actually realized a net refund, net credit or other
similar net Tax benefit as a result of any additional amounts paid by Borrower
on account of such Lender pursuant to this subsection 4.11(d), such Lender
shall, to the extent such Lender determines in its sole discretion that such
Lender may do so without prejudice to the retention of such net refund, net
credit or other net Tax benefit and without any other adverse Tax consequences
to such Lender, pay to Borrower an amount equal to such net Tax benefit actually
realized by such Lender; provided, however, that: (1) in no event will any
Lender be required to pay any amount to Borrower the payment of which would
place such Lender in a less favorable net after-tax position than such
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Lender would have been in had the additional amounts giving rise to such net
refund, net credit or other net Tax benefit never been paid in the first place,
(2) if any net refund, net credit or other net Tax benefit resulting in a
payment by a Lender to Borrower under this clause (vi) is ultimately disallowed
(in whole or in part, and including, without limitation, as a result of a
settlement with an applicable taxing authority), Borrower shall, within 10 days
after receiving written notice from such Lender, return to such Lender such
portion of the payment previously made to Borrower by such Lender (plus interest
for the relevant period(s) at the applicable underpayment rate(s)) as such
Lender shall determine (in such Lender's sole discretion) to be due and owing in
accordance with this clause (vi) and (3) any determination made by any Lender
under this clause (vi) shall be conclusive absent manifest error.
(e) A certificate in reasonable detail as to any amounts submitted by
such Lender, through the Administrative Agent, to Borrower, shall be conclusive
in the absence of manifest error. The covenants contained in this subsection
4.11 shall survive the termination of this Agreement and repayment of the Loans.
4.12. Indemnity. Each Credit Party agrees to indemnify each Lender and
each of their respective affiliates and to hold such Lender and each of their
respective affiliates harmless from any loss or expense (but (x) without
duplication of any amounts payable as default interest and (y) excluding any
loss of anticipated profits) which such Lender may sustain or incur as a
consequence of (a) default by Borrower in making a borrowing after Borrower has
given a notice in accordance with subsection 4.1 or in making a conversion of
Alternate Base Rate Loans to Eurodollar Loans or in continuing Eurodollar Loans
as such, in either case, after Borrower has given notice in accordance with
subsection 4.2, (b) default by any Credit Party in making any prepayment after
Borrower has given a notice in accordance with subsection 4.4 or (c) a payment
or prepayment of a Eurodollar Loan or conversion (including without limitation,
as a result of subsection 4.4 and/or a conversion pursuant to subsection 4.10)
of any Eurodollar Loan into an Alternate Base Rate Loan, in either case on a day
which is not the last day of an Interest Period with respect thereto, including,
but not limited to, any such loss or expense arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to maintain
its Eurodollar Loans hereunder (but excluding loss of profit). This covenant
shall survive termination of this Agreement and repayment of the Loans.
4.13. Repayment of Loans; Evidence of Debt. (a) Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender (i) the then unpaid principal amount of each Revolving Credit Loan
of such Lender on the Revolving Credit Termination Date, (ii) the principal
amount of the Tranche A Term Loan of such Lender, in installments, payable on
each Tranche A Installment Payment Date, in accordance with subsection 4.4(c)
(or the then unpaid principal amount of such Tranche A Term Loan on the date
that the Tranche A Term Loans become due and payable pursuant to Section 9),
(iii)
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the principal amount of the Tranche B Term Loan of such Lender, in installments,
payable on each Tranche B Installment Payment Date, in accordance with
subsection 4.4(d) (or the then unpaid principal amount of such Tranche B Term
Loan on the date that the Tranche B Term Loans become due and payable pursuant
to Section 9), and (iv) the then unpaid principal amount of the Swing Line Loans
of the Swing Line Lender on the Revolving Credit Termination Date. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum and on the dates set forth in subsection 4.5.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of Borrower to such Lender resulting
from each Loan of such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Revolving Credit Loan, Tranche A Term Loan and
Tranche B Term Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from Borrower to each Lender hereunder and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 4.13(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of Borrower therein recorded; provided that the failure of any
Lender or the Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of Borrower
to repay (with applicable interest) the Loans made to Borrower by such Lender or
to repay any other obligations in accordance with the terms of this Agreement.
(e) Borrower agrees that, upon the request to the Administrative Agent
by any Lender, Borrower will execute and deliver to such Lender (i) a promissory
note of Borrower evidencing the Revolving Credit Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Revolving Credit Note"), (ii) a promissory note of
Borrower evidencing the Tranche A Term Loan of such Lender, substantially in the
form of Exhibit B-1 with appropriate insertions as to date and principal amount
(a "Tranche A Term Note"), (iii) a promissory note of such Borrower evidencing
the Tranche B Term Loan of such Lender, substantially in the form of Exhibit B-2
with appropriate insertions as to date and principal amount (a "Tranche B Term
Note"), and/or (iv) in the case of the Swing Line Lender, a promissory note of
Borrower evidencing the Swing Line Loans of the
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Swing Line Lender, substantially in the form of Exhibit C with appropriate
insertions as to date and principal amount (the "Swing Line Note").
4.14. Replacement of Lenders. In the event any Lender or the Issuing
Lender is a Non-Funding Lender, exercises its rights pursuant to subsection 4.10
or requests payments pursuant to subsections 3.10 or 4.11, Borrower may require,
at Borrower's expense (including payment of any processing fees under subsection
11.6(e)) and subject to subsection 4.12, such Lender or the Issuing Lender to
assign, at par plus accrued interest and fees, without recourse (in accordance
with subsection 11.6) all of its interests, rights and obligations hereunder
(including all of its Commitments and the Loans and other amounts at the time
owing to it hereunder and its Notes and its interest in the Letters of Credit)
to a bank, financial institution or other entity specified by Borrower; provided
that (i) such assignment shall not conflict with or violate any law, rule or
regulation or order of any court or other Governmental Authority, (ii) Borrower
shall have received the written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, to such assignment, (iii) Borrower
shall have paid to the assigning Lender or the Issuing Lender all monies other
than principal, interest and fees accrued and owing hereunder to it (including
pursuant to subsections 3.10, 4.10, 4.11 and 4.12) and (iv) in the case of a
required assignment by the Issuing Lender, the Letters of Credit shall be
canceled and returned to the Issuing Lender.
4.15. Aggregate Maximum Loans Borrowed. Notwithstanding anything to the
contrary contained herein or otherwise, there shall be no extensions of credit
under this Agreement exceeding $140,000,000 until the Existing Senior Notes have
been paid in full (unless the proceeds of such extensions of credit are being
contemporaneously used to repay the Existing Senior Notes in full).
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make
the Loans and to induce the Issuing Lender to issue, and the Participating
Lenders to participate in, the Letters of Credit, each Credit Party hereby
represents and warrants to each Lender and the Administrative Agent as of the
Closing Date and as of the date of the making of any extension of credit
hereunder:
5.1. Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of MCL and its consolidated Subsidiaries as at June 30, 2002
(including the notes thereto) (the "Pro Forma Balance Sheet"), copies of which
have heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of the
Transactions, (ii) the incurrence of the Loans and the issuance of the Letters
of Credit to be incurred or issued, as the case may be, on the Closing Date and
all Indebtedness that MCL and its Subsidiaries expect to incur in connection
with the Transactions and the issuance of the Loans and the use of proceeds
thereof and (iii) the payment of
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fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet
presents fairly in all material respects on a pro forma basis the estimated
financial position of MCL and its consolidated Subsidiaries as at June 30, 2002,
assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of MCL and its Subsidiaries
as at December 31, 1999, 2000 and 2001, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from PricewaterhouseCoopers LLC
or Deloitte & Touche LLP, present fairly in all material respects the
consolidated financial condition of MCL and its Subsidiaries as at each such
date, and the consolidated results of operations and consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance sheet
of MCL and its Subsidiaries as at March 31, 2002, and the related unaudited
consolidated statements of income and cash flows for the three-month period
ended on such date, present fairly in all material respects the consolidated
financial condition of MCL and its Subsidiaries as at such date, and the
consolidated results of operations and consolidated cash flows for the
three-month period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). During the period from March 31, 2002 to
and including the date hereof there has been no disposition by MCL and its
Subsidiaries of any material part of their business or property.
(c) Except as set forth in Schedule 5.1(c), in the financial statements
or other information referred to in subsections 5.1(a) and (b), as of the
Closing Date, (i) there are no material liabilities of any Credit Party or any
of its Subsidiaries of any kind (including, without limitation, liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives) required to be set forth on a
balance sheet or in the notes thereto prepared in accordance with GAAP, whether
accrued, contingent, absolute, determined, determinable or otherwise, which are
reasonably likely to result in a Material Adverse Effect, and (ii) there is no
existing condition, situation or set of circumstances which is reasonably likely
to result in such a Material Adverse Effect.
5.2. No Change. Since December 31, 2001, there has been no change,
development or event affecting the business, assets, operation, properties,
condition (financial or otherwise), contingent liabilities, prospects (as such
prospects relate to the initial and updated annual financial projections of MCL
and its Subsidiaries) or material agreements (that are filed or are required to
be filed in any report with the SEC pursuant to the Exchange Act) of MCL and its
Subsidiaries which, individually or when taken together with all other
circum-
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stances, changes or events, has had, or would reasonably be expected to have, a
Material Adverse Effect.
5.3. Existence; Compliance with Law. Except as disclosed in Schedule
5.3, each Credit Party and each of its Subsidiaries (a) is duly organized and
validly existing under the laws of the jurisdiction of its incorporation or
organization, (b) has full power and authority and possesses all governmental
franchises, licenses, permits, authorizations and approvals necessary to enable
it to use its corporate name and to own, lease or otherwise hold its properties
and assets and to carry on its business as presently conducted other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, would not have a Material Adverse Effect, (c)
is duly qualified and in good standing (to the extent such concept is applicable
in the applicable jurisdiction) to do business in each jurisdiction in which the
nature of its business or the ownership, leasing or holding of its properties
makes such qualification necessary, except such jurisdictions where the failure
so to qualify, individually or in the aggregate, would not have a Material
Adverse Effect and (d) is in compliance with all applicable statutes, laws,
ordinances, rules, orders, permits and regulations of any Governmental Authority
or instrumentality, domestic or foreign (including, without limitation, those
related to Hazardous Materials and substances), except where noncompliance
individually or in the aggregate, would not have a Material Adverse Effect. None
of MCL nor any of its Subsidiaries have received any written communication from
a Governmental Authority that alleges that MCL or any of its Subsidiaries is not
in compliance with federal, state, local or foreign laws, ordinances, rules and
regulations except to the extent such noncompliance, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
5.4. Power; Authorization. Each Credit Party has the power and
authority to execute, deliver and perform each of the Credit Documents to which
it is a party, and Borrower has the power and authority and legal right to
borrow hereunder and to have Letters of Credit issued for its account hereunder.
Each Credit Party has taken all necessary action to authorize the execution,
delivery and performance of each of the Credit Documents to which it is or will
be a party and Borrower has taken all necessary action to authorize the
borrowings hereunder and the issuance of Letters of Credit for its account
hereunder. No consent or authorization of, or filing with, any Person
(including, without limitation, any Governmental Authority) is required in
connection with the execution, delivery or performance by any Credit Party, or
for the validity or enforceability in accordance with its terms against any
Credit Party, of any Credit Document except for (i) consents, authorizations and
filings which have been obtained or made and are in full force and effect, (ii)
such consents, authorizations and filings which the failure to obtain or
perform, individually or in the aggregate, would not have a Material Adverse
Effect, and (iii) such filings as are necessary to perfect the Liens of the
Administrative Agent, for its benefit and for the benefit of the other Secured
Parties created
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pursuant to this Agreement and the Security Documents, which filings are listed
in Schedule 5.15(b) annexed hereto.
5.5. Enforceable Obligations. This Agreement has been, and each of the
other Credit Documents and any other agreement to be entered into by any Credit
Party pursuant to each of the Transaction Documents will be, duly executed and
delivered on behalf of each Credit Party that is party thereto. This Agreement
and each of the Transaction Documents each constitute, and each of the other
Credit Documents and any other agreement to be entered into by any Credit Party
pursuant to the Transaction Documents will constitute upon execution and
delivery thereof, the legal, valid and binding obligation of each Credit Party
that is party thereto, and is enforceable against each Credit Party that is
party thereto in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
5.6. No Legal Bar. The execution, delivery and performance of each
Credit Document and the incurrence or issuance of and use of the proceeds of the
Loans and of drawings under the Letters of Credit and the Transactions (a) will
not violate any Requirement of Law or any Contractual Obligation applicable to
or binding upon any Credit Party or any of its Subsidiaries or any of their
respective properties or assets, in any manner which, individually or in the
aggregate, would have a Material Adverse Effect, and (b) will not result in the
creation or imposition of any Lien on any of its properties or assets pursuant
to any Requirement of Law applicable to it, as the case may be, or any of its
Contractual Obligations, except for the Liens arising under the Security
Documents and Permitted Liens.
5.7. No Material Litigation. Except as disclosed in Schedule 5.7, no
lawsuits, claims, proceedings or investigations are pending or, to the knowledge
of each Credit Party and its Subsidiaries, threatened in writing against or
affecting MCL and/or any of its Subsidiaries or any of their respective
properties, assets, operations, or businesses, which would affect the legality,
validity and enforceability of this Agreement and/or the Transaction Documents
of which have had, or are reasonably likely to have, a Material Adverse Effect.
5.8. Investment Company Act. No Credit Party is an "investment company"
or a company "controlled" by an "investment company" (as each of the quoted
terms is defined or used in the Investment Company Act of 1940, as amended).
5.9. Federal Regulation. The extensions of credit hereunder will not be
used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect for any purpose that violates the provisions of the
regulations of the Board. If requested by any Lender or the Administrative
Agent, Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR
Form G-3 or FR
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Form U-1, as applicable, referred to in Regulation U. Following application
of the proceeds of each extension of credit hereunder, not more than 25 percent
of the value of the assets of any Credit Party will be Margin Stock (as defined
in Regulation U). None of the Credit Parties is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Credit Party is subject to regulation under any law
or regulation which limits its ability to incur Indebtedness, other than
Regulation X of the Board.
5.10. No Default. Except as disclosed in Schedule 5.10, each Credit
Party and its Subsidiaries have performed all material obligations required to
be performed by them under their respective Contractual Obligations (including
after giving effect to the Transactions) relating to material agreements that
are filed or required to be filed in any report with the SEC pursuant to the
Exchange Act, and none of them is (with or without the lapse of time or the
giving of notice, or both) in breach or default in any respect thereunder,
except to the extent that such breach or default, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect. No
Credit Party nor any of its Subsidiaries (including after giving effect to the
Transactions) is in default under any material judgment, order or decree of any
Governmental Authority, domestic or foreign, applicable to it or any of its
respective properties, assets, operations or business, except to the extent that
any such defaults would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.
5.11. Taxes. Except as disclosed in Schedule 5.11, each Credit Party
and its Subsidiaries (including after giving effect to the Transactions) (i)
have filed or caused to be filed all material Tax Returns required to be filed,
and all such Tax Returns are true and correct in all material respects and (ii)
have paid all Taxes shown to be due and payable on said returns or on any
assessments made against them or any of their respective property and all other
Taxes, fees or other charges imposed on them or any of their respective property
by any Governmental Authority (other than any (x) the amount of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves (or other sufficient provisions) in conformity with
GAAP have been provided on the books of MCL or its Subsidiaries (including after
giving effect to the Transactions), as the case may be, or (y) which would not,
individually or in the aggregate, have a Material Adverse Effect). Each Credit
Party and its Subsidiaries have made adequate provision (in accordance with
GAAP) for all Taxes not yet due and payable. No Credit Party is aware of any
proposed or pending tax assessments, deficiencies or audits that are reasonably
likely to, individually or in the aggregate, have a Material Adverse Effect.
5.12. Subsidiaries. After giving effect to the consummation of the
Transactions, the Subsidiaries of MCL, their jurisdictions of incorporation and
their owners (by holder and percentage interest) on the Closing Date shall be as
set forth on Schedule 5.12.
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5.13. Ownership of Property; Liens. As of the Closing Date and as of
the making of any extension of credit hereunder (subject to transfers and
dispositions of property permitted under subsection 8.5), each Credit Party has
good and valid title to all of its owned material assets (other than minor
irregularities or deficiencies in title which, individually or in the aggregate,
would not be reasonably likely to have a Material Adverse Effect) in each case
free and clear of all Liens except Permitted Liens.
5.14. ERISA. (a) No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations of all Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $1,000,000 the fair market value of the assets of all Pension
Plans. Each ERISA Entity is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each
Employee Benefit Plan unless such noncompliance would not reasonably be expected
to have a Material Adverse Effect. Using actuarial assumptions and computation
methods consistent with subpart 1 of subtitle E of Title IV of ERISA, the
aggregate liabilities of each ERISA Entity to all Multiemployer Plans in the
event of a complete withdrawal therefrom, as of the close of the most recent
fiscal year of each such Multiemployer Plan, would not reasonably be expected to
result in a Material Adverse Effect.
(b) Each Foreign Plan has been maintained in substantial compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where required,
in good standing with applicable regulatory authorities, unless such
noncompliance would not reasonably be expected to have a Material Adverse
Effect. No Credit Party nor any of its Subsidiaries has incurred any material
obligation in connection with the termination of or withdrawal from any Foreign
Plan, unless such noncompliance would not reasonably be expected to have a
Material Adverse Effect. The present value of the accrued benefit liabilities
(whether or not vested) under each Foreign Plan which is funded, determined as
of the end of the most recently ended fiscal year of MCL or any of its
Subsidiaries on the basis of actuarial assumptions, each of which is reasonable
under applicable law, did not exceed the current value of the assets of such
Foreign Plan by more than $1,000,000.
5.15. Collateral Documents. (a) Upon execution and delivery thereof by
the parties thereto, the Security Documents will be effective to create in favor
of the Administrative Agent, for its benefit (as provided in clause 10.12)
and/or for the benefit of the other Secured Parties, a legal, valid and
enforceable security interest in the pledged stock and intercompany notes
described therein and, when stock certificates representing or constituting the
pledged stock described in the Security Documents and intercompany notes
described in the
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Security Documents are delivered to the Administrative Agent, such security
interest shall, subject to (1) Permitted Liens of the type described in
subsection 8.2(a) and (2) compliance with applicable law other than the laws of
(i) Canada or any political subdivision or province thereof and (ii) the United
States (which laws shall be complied with in accordance with subsection 7.10
hereof); constitute a perfected first lien on, and security interest in (or
substantially the equivalent thereof relating to Collateral outside the United
States), all right, title and interest of the pledgor party thereto in the
pledged stock and intercompany notes described therein.
(b) Upon execution and delivery thereof by the parties thereto, the
Security Documents will be effective to create in favor of the Administrative
Agent, for its benefit (as provided in clause 10.12) and/or for the benefit of
the other Secured Parties, a legal, valid and enforceable security interest (or
substantially the equivalent thereof relating to collateral outside the United
States) in the collateral described therein, and upon such filing of UCC and
PPSA financing statements in the locations listed on Schedule 5.15(b) and
appropriate filings with the United States Patent and Trademark Office and the
United States Copyright Office (which filings shall be made to the extent set
forth on Schedule 5.15(b) or otherwise required by the applicable Security
Documents), and upon the taking of possession or control by the Administrative
Agent of any such collateral, the security interests in which may be perfected
only by possession or control, (which possession or control shall be given to
the Administrative Agent to the extent possession by the Administrative Agent is
required by any Security Document), such security interests will to the extent
such lien can be perfected by the filing of a financing statement pursuant to
the UCC, PPSA or possession or control by the Administrative Agent or by the
filing of an appropriate filing at the United States Patent and Trademark Office
or the United States Copyright Office, subject to the existence of Permitted
Liens, constitute perfected first priority liens on, and security interests in,
all right, title and interest of the debtor party thereto in the collateral
described therein.
5.16. Copyrights, Patents, Permits, Trademarks and Licenses. Schedules
15(a) and 15(b) of the Perfection Certificate set forth a true and complete list
as of the Closing Date of all material United States federally registered
Intellectual Property owned by a Credit Party and, with respect to such material
United States federally registered Intellectual Property, contain a list of all
jurisdictions in which such Intellectual Property is registered or applied for,
all registration and application numbers and other information relating thereto
required pursuant to the Perfection Certificate. Except as disclosed in Schedule
15(a) or 15(b) of the Perfection Certificate, a Credit Party or one of its
Subsidiaries owns or has the right to use the Intellectual Property and
applications therefor referred to in such Schedule. Except as disclosed in
Schedules 15(a) and 15(b) of the Perfection Certificate, no claims are pending
by any Person with respect to the ownership, validity, enforceability or a
Credit Party's or any of its Subsidiaries' use of such Intellectual Property, or
applications therefor, challenging or questioning the validity or effectiveness
of any of the foregoing, in any jurisdiction, domestic or foreign, except to
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the extent such claims, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
5.17. Environmental Matters. Except as disclosed in Schedule 5.17 and
except insofar as any exceptions to the following, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect:
(a) the properties owned, leased or otherwise operated by any Credit
Party or any of its Subsidiaries do not contain therein, thereon or
thereunder, including, without limitation, the soil and groundwater
thereunder, any Hazardous Materials in amounts or concentrations or in a
manner that constitutes a violation of, or could reasonably be expected to
give rise to liability under, Environmental Laws;
(b) the properties owned, leased or otherwise operated by any Credit
Party or any of its Subsidiaries and all operations and facilities at such
properties are in compliance with all Environmental Laws;
(c) no Credit Party nor any of its Subsidiaries has received or is
aware of any written complaint, notice of violation, alleged violation or
notice of investigation or of potential liability under any Environmental
Law with regard to any Credit Party or any of its Subsidiaries or any
properties or facilities owned, leased or otherwise operated by any of them,
nor does any Credit Party or any of its Subsidiaries have knowledge that any
such action is being contemplated, considered or threatened;
(d) Hazardous Materials have not been generated, treated, stored on or
under, disposed of or released at, on or under any properties presently or
formerly owned, leased or otherwise operated by any Credit Party or any of
its Subsidiaries, nor have any Hazardous Materials been transported from any
such property, or come to be located at, on or under any other property, in
violation of or in a manner that could reasonably be expected to give rise
to liability on the part of any Credit Party or any of its Subsidiaries
under any Environmental Law;
(e) there are no administrative or judicial actions, investigations or
proceedings pending or, to the best knowledge of any Credit Party,
threatened under any Environmental Law to which any Credit Party or any of
its Subsidiaries is a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders or judgments
or agreements to which any Credit Party or any of its Subsidiaries is a
party which could reasonably be expected to result in liability or costs on
the part of any Credit Party or any of its Subsidiaries under any
Environmental Law;
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(f) no Lien has been asserted or recorded or, to the best knowledge of
any Credit Party, threatened under any Environmental Law with respect to any
Real Property or other assets of any Credit Party or any of its
Subsidiaries;
(g) no Real Property is (x) listed or proposed for listing on the
National Priorities List under the United States Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), or
(y) included on any similar list maintained by any Governmental Authority;
and
(h) no Credit Party nor any of its Subsidiaries is currently conducting
any response or other corrective action pursuant to any Environmental Law at
any Real Property or at any other location.
5.18. Accuracy and Completeness of Information. The factual statements
contained in the financial statements referred to in subsection 5.1, the
Confidential Information Memorandum dated July 9, 2002 delivered to the Lenders
in connection with the syndication of the Loans and the Commitments (the
"Confidential Information Memorandum"), the Credit Documents (including the
schedules thereto), each of the Transaction Documents and any other certificates
or documents furnished or to be furnished to the Administrative Agent or the
Lenders as updated from time to time in connection with this Agreement, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances and at the time in which
they were made; provided that with respect to projected, estimated or pro forma
financial information, MCL represents only that such information has been and
will be prepared in good faith based upon assumptions believed by MCL to be
reasonable at the time. Each Credit Party understands that all such statements,
representations and warranties shall be deemed to have been relied upon by the
Lenders as a material inducement to make each extension of credit hereunder.
5.19. Labor Matters. There is (i) no unfair labor practice complaint
pending against any Credit Party or any of its Subsidiaries or, to the best
knowledge of any Credit Party, threatened against any Credit Party or any of its
Subsidiaries before the National Labor Relations Board or any other Governmental
Authority, and no grievance or arbitration proceeding arising out of or under
any collective bargaining agreement is so pending against any Credit Party or
any of its Subsidiaries or, to the best knowledge of any Credit Party after due
inquiry, threatened against any Credit Party or any of its Subsidiaries, (ii) no
strike, labor dispute, slowdown or stoppage pending against any Credit Party or
any of its Subsidiaries or, to the best knowledge of any Credit Party after due
inquiry, threatened against any Credit Party or any of its Subsidiaries and
(iii) to the best knowledge of any Credit Party after due inquiry, no union
representation question existing with respect to the employees of any Credit
Party or any of its Subsidiaries and, to the best knowledge of any Credit Party,
no union organizing ac-
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tivities are taking place, except such as would not, with respect to any matter
specified in clause (i), (ii) or (iii) above, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
5.20. Solvency. Upon giving effect to the issuance of the Notes, the
execution of the Credit Documents by the Credit Parties and the consummation of
the transactions contemplated hereby and the Transactions, each Credit Party
will be Solvent as of the Closing Date.
5.21. Use of Proceeds. Borrower will use the proceeds of the Loans to
finance the Transactions and Permitted Acquisitions and pay related fees and
expenses and for other corporate purposes.
5.22. Canadian Property. As of the Closing Date, no Grantor has any
Property in Canada or any political subdivision or province thereof other than
MCL, Quality Color Press Inc. and MH Holdings Limited.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions to Initial Loans and Letters of Credit. The obligation
of each Lender to make its Loans, and the obligation of the Issuing Lender to
issue any Letter of Credit, on the Closing Date are subject to the satisfaction,
or waiver by such Lender, immediately prior to or concurrently with the making
of such Loans or the issuance of such Letters of Credit, as the case may be, of
the following conditions:
(a) Agreement; Notes. The Administrative Agent shall have received (i)
a counterpart of this Agreement for each Lender duly executed and delivered
by a duly authorized officer of each Credit Party, (ii) for the account of
each Revolving Credit Lender requesting the same pursuant to subsection
4.13(e), a Revolving Credit Note of Borrower conforming to the requirements
of this Agreement and executed by a duly authorized officer of Borrower,
(iii) for the account of each Tranche A Lender requesting the same pursuant
to subsection 4.13(e), a Tranche A Term Note, conforming to the requirements
of this Agreement and executed by a duly authorized officer of Borrower,
(iv) for the account of each Tranche B Lender requesting the same pursuant
to subsection 4.13(e), a Tranche B Term Note, conforming to the requirements
of this Agreement and executed by a duly authorized officer of Borrower, and
(v) if requested by Swing Line Lender, for the account of Swing Line Lender,
a Swing Line Note, conforming to the requirements of this Agreement and
executed by a duly authorized officer of Borrower.
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(b) Transactions. The Lenders shall have reviewed, and be reasonably
satisfied with, the final terms and conditions and the documentation
relating to the Transactions.
(c) Capitalization; Capital Structure. (i) The Administrative Agent
shall have received an Officers' Certificate of MCL, dated the Closing Date,
stating that MCL has retained the outstanding Capital Stock of ▇▇▇▇▇
Holdings U.S.A. Inc. and that ▇▇▇▇▇ Holdings U.S.A. Inc. has retained the
outstanding Capital Stock of Borrower, in each case, owned by such Person
immediately prior to the Transactions and has retained voting control of the
board of directors of ▇▇▇▇▇ Holdings U.S.A. Inc. or Borrower, as the case
may be.
(ii) The terms, conditions and documentation of all Capital Stock and
Indebtedness of each Credit Party and its Subsidiaries to remain outstanding
after the Closing Date, the certificate of incorporation, by-laws, other
governing documents and the corporate and capital structure of each Credit
Party and its Subsidiaries, in each case after giving effect to the
consummation of the Transactions, shall be in form and substance reasonably
satisfactory to the Administrative Agent.
The execution and delivery of this Agreement by the Lenders and the
Administrative Agent shall be deemed to evidence the satisfaction of the
Lenders and the Administrative Agent with such of the matters referenced in
clauses (i) and (ii) of this paragraph (c) as shall have been disclosed and
made available to the Administrative Agent prior to the date hereof.
(d) Financial Statements. The Lenders shall have received the financial
statements described in subsection 5.1 and an Officer's Certificate from
MCL's chief financial officer to the effect that such statements accurately
present the pro forma financial position of MCL and its Subsidiaries no
later than three Business Days before the Closing Date and such financial
statements shall be in form and scope reasonably satisfactory to the Lenders
and shall not be materially inconsistent with the financial statements
previously provided to the Lenders.
(e) Fees. The Administrative Agent and the Sole Lead Arranger shall
have received all reasonable costs, fees, expenses (including, without
limitation, the reasonable invoiced fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Administrative Agent and the Sole Lead Arranger,
and of other legal counsel for the Administrative Agent) and other
consideration presented for payment required to be paid on or before the
Closing Date.
(f) Lien Searches; Lien Perfection. (i) The Administrative Agent shall
have received the results of a search of UCC, tax and judgment filings made
with respect to
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each Credit Party and its Subsidiaries in the jurisdictions acceptable to
the Administrative Agent, together with copies of financing statements
disclosed by such searches and such searches shall disclose no Liens on any
assets encumbered by any Security Document, except for Liens permitted
hereunder or, if unpermitted Liens are disclosed, the Administrative Agent
shall have received satisfactory evidence of the release of such Liens, (ii)
the Administrative Agent shall have the results of Intellectual Property
searches with respect to all material Intellectual Property (which material
Intellectual Property is described on Schedules 15(a) and 15(b) of the
Perfection Certificate), together with copies of Liens disclosed thereby and
such searches shall disclose no Liens on any intellectual property
encumbered by any Security Document except for Liens permitted hereunder or
if unpermitted Liens are disclosed, the Administrative Agent shall have
received satisfactory evidence of the release of such Liens, and (iii) the
Administrative Agent shall have received duly executed financing statements
on Form UCC-1 and other instruments, necessary or, in the reasonable opinion
of the Administrative Agent, desirable to perfect the Liens created by the
Security Documents.
(g) Collateral Agreements. The Administrative Agent shall have received
the U.S. Collateral Agreement and the Canadian Collateral Agreement, and the
Foreign Stock Pledges, executed and delivered by a duly authorized officer
of the parties thereto, together with (i) stock certificates representing
100% (or 66 2/3%, in the case of direct Foreign Subsidiaries of Borrower or
any Domestic Subsidiary of Borrower) of all issued and outstanding
certificated shares of Capital Stock of each of ▇▇▇▇▇ Holdings U.S.A. Inc.,
any subsidiary of ▇▇▇▇▇ Holdings U.S.A. Inc. which holds directly or
indirectly 100% of the Capital Stock of Borrower, Borrower, each of the
direct and indirect Subsidiaries of Borrower existing on Closing Date (other
than any Foreign Subsidiary of Borrower which is not a direct Subsidiary of
Borrower or a direct Subsidiary of a Domestic Subsidiary), and certain of
MCL's direct subsidiaries existing on the Closing Date and undated stock
powers for each certificate, executed in blank and delivered by a duly
authorized officer of the applicable pledgor, and (ii) all intercompany
notes evidencing loans made by any Credit Party to any other Credit Party or
any other Subsidiary, together with instruments of transfer or assignment
executed in blank with respect thereto.
(h) [Reserved].
(i) [Reserved].
(j) [Reserved].
(k) Legal Opinions. The Administrative Agent shall have received, dated
the Closing Date and addressed to the Administrative Agent and the Lenders,
(i) an opin-
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ion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Credit Parties, in the form of
Exhibit J-1, (ii) an opinion of Canadian and each other foreign counsel to
the Credit Parties, in the form of Exhibit J-2, and (iii) an opinion of each
domestic local counsel, in the form of Exhibit J-3, in each jurisdiction
that governs perfection of the liens and security interests granted by MCL
or a Domestic or Canadian Subsidiary of MCL intended to be granted to the
Administrative Agent pursuant to the Security Documents, in each case in
form and substance reasonably satisfactory to the Administrative Agent.
(l) Closing Certificate. The Administrative Agent shall have received a
closing certificate of each Credit Party dated the Closing Date, in
substantially the form of Exhibit K, with appropriate insertions and
attachments, in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, executed by the President or any Vice
President and the Secretary or any Assistant Secretary (or other appropriate
officers or representatives) of Borrower and its Subsidiaries, respectively.
(m) Solvency Certificate. The Administrative Agent shall have received
a solvency letter, in the form of an Officers' Certificate of MCL, in
substantially the form of Exhibit L, in form and substance satisfactory to
the Administrative Agent, together with such other evidence reasonably
requested by the Lenders, confirming the solvency of MCL and its
Subsidiaries on a consolidated basis after giving effect to the consummation
of the Transactions.
(n) Insurance. The Administrative Agent shall have received (i) a
schedule describing all insurance (including but not limited to business
interruption insurance) maintained by MCL and its Subsidiaries pursuant to
subsection 7.5 and (ii) binders (or other customary evidence as to the
obtaining and maintenance by MCL of such insurance at the Closing Date) for
each policy set forth on such schedule insuring against casualty and other
customary risks.
(o) Control Agreements. To the extent required by the U.S. Collateral
Agreement, the Administrative Agent shall have received a Control Agreement,
substantially in the form of Exhibit M-1 or Exhibit M-2, as appropriate,
duly authorized, executed and delivered by the parties thereto, with respect
to each Deposit Account, Securities Account and Commodities Account
maintained by any Credit Party.
(p) Perfection Certificate. The Administrative Agent shall have
received a perfection certificate (the "Perfection Certificate"),
substantially in the form of Exhibit N, duly authorized, executed and
delivered by the Credit Parties.
(q) Indebtedness. After giving effect to the Transactions, on the
Closing Date, none of MCL or any of its Subsidiaries shall have outstanding
any Indebtedness for borrowed money or preferred stock other than (x)
Indebtedness under the Credit
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Documents and (y) Indebtedness set forth on Schedule 8.1(a) or permitted by
subsection 8.1.
(r) Material Adverse Effect. Since December 31, 2001, there shall have
been no change, event or development (whether or not covered by insurance)
which has had, or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(s) Officers' Certificate. The Administrative Agent shall have received
an Officers' Certificate of Borrower, dated the Closing Date, (i) to the
effect set forth in subsections 6.2(a) and (b) and (ii) to the effect that
all conditions precedent to the making of such initial Loans (except any
such condition precedent the satisfaction of which is to be satisfactory to,
or subjectively determined by, the Administrative Agent, the Sole Lead
Arranger or any other Agent or Lender) have been satisfied or waived.
(t) [Reserved].
(u) Existing Indebtedness. The Administrative Agent shall have received
satisfactory evidence that (i) the Existing Senior Credit Facility shall be
paid in full with the proceeds of a Loan and all commitments thereunder
terminated, and (ii) satisfactory arrangements shall have been made for the
termination of all Liens granted in connection therewith and the
Administrative Agent shall have received evidence thereof reasonably
satisfactory to the Administrative Agent and a "pay-off" letter or letters
reasonably satisfactory to the Administrative Agent with respect to the
credit facilities; in addition, from any Person holding any Lien securing
any such Indebtedness, such UCC termination statements, mortgage releases
and other instruments, in each case in proper form for recording, as the
Administrative Agent shall have reasonably requested to release and
terminate of record the Liens securing such Indebtedness (or arrangements
for such release and termination reasonably satisfactory to the
Administrative Agent shall have been made).
(v) [Reserved].
6.2. Conditions to All Loans and Letters of Credit. The obligation of
(x) each Lender to make any Loan (other than any Revolving Credit Loan (i) the
proceeds of which are to be used to repay Refunded Swing Line Loans or (ii) to
be made as contemplated by the last two sentences of subsection 3.8, which shall
be made unless an event of the type described in paragraph (f) of Section 9 has
occurred and is continuing) and (y) the Issuing Lender to issue any Letter of
Credit, is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date:
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(a) Representations and Warranties. Each of the representations and
warranties made in or pursuant to Section 5 or which are contained in any
other Credit Document shall be true and correct on and as of the date of
such Loan or of the issuance of such Letter of Credit as if made on and as
of such date (unless stated to relate to a specific earlier date, in which
case, such representations and warranties shall be true and correct in all
material respects as of such earlier date).
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such Borrowing Date or after giving
effect to such Loan to be made or such Letter of Credit to be issued on such
Borrowing Date.
Each borrowing by Borrower hereunder and the issuance of each Letter of
Credit by the Issuing Lender hereunder shall constitute a representation and
warranty by Borrower as of the date of such borrowing or issuance that the
conditions in clauses (a) and (b) and of this subsection 6.2 have been
satisfied.
6.3. Permitted Acquisitions. The obligation of the Lenders to make any
Loan or otherwise extend any credit to Borrower, the proceeds of which will be
used to make a Permitted Acquisition, is subject to the satisfaction of the
conditions set forth in subsections 6.1 and 6.2 and to the further conditions
precedent that:
(i) Line of Business Compliance. Immediately after giving effect to
such Permitted Acquisition, the Credit Parties would be in compliance with
subsection 8.14.
(ii) No Default or Event of Default. No Default or Event of Default
shall then be in existence or would arise therefrom.
(iii) [Reserved].
(iv) Receipt of Applicable Acquisition Documents. With respect to any
Permitted Acquisition the consideration for which is in excess of $40.0
million, the Administrative Agent shall have received the acquisition
agreement and all other documents and agreements related to such Permitted
Acquisition (the "Applicable Acquisition Documents") and such Permitted
Acquisition shall be consummated in accordance with the terms of the
Applicable Acquisition Documents and all Requirements of Law.
(v) Financial Statements. Borrower will use its reasonable best efforts
to deliver to the Administrative Agent and the Lenders prior to the date of
consummation of such Permitted Acquisition, financial statements of the
entity to be acquired, including but not limited to audited balance sheets,
reports of certified public accountants, if
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any, financial projections and budgets; due diligence data relating to the
entity to be acquired; and any other documents relating to the entity to be
acquired as may be reasonably requested by the Administrative Agent.
(vi) Lien Searches. Borrower shall have delivered to the Administrative
Agent and the Lenders, certified copies of lien search reports, tax lien,
judgment lien and pending lawsuit searches or equivalent reports acceptable
to the Administrative Agent each of a recent date listing all effective
financial statements or comparable documents that name the entity to be
acquired or Subsidiary of the entity to be acquired as debtor and that are
filed in those jurisdictions in which each such Person is organized, any
property of each such Person is located and each such Person's principal
place of business is located, none of which encumber the Collateral covered
by the Security Documents except for Permitted Liens. Borrower shall have
provided evidence satisfactory to the Administrative Agent that all Liens
applicable to the Capital Stock of the entity to be acquired and the
property of the entity to be acquired and of each Subsidiary of the entity
to be acquired have been released and terminated.
(vii) Receipt of Security Interests and Legal Opinions. All Collateral
to be acquired shall have been pledged pursuant to the Security Documents in
accordance with subsection 7.9 hereof and the Lenders shall have a perfected
first priority security interest therein subject to no Liens, except for the
Liens created by the Securities Documents and Liens permitted under the
Security Documents for such Collateral. The Administrative Agent shall have
received customary legal opinions addressed to Agents and the Lenders in
form and substance reasonably satisfactory to the Administrative Agent with
respect to the Security Documents entered into in connection with a
Permitted Acquisition.
SECTION 7. AFFIRMATIVE COVENANTS
Each Credit Party hereby agrees that, so long as the Commitments remain
in effect, any Loan, Note or L/C Obligation remains outstanding and unpaid, any
amount remains available to be drawn under any Letter of Credit (unless cash in
an amount equal to such amount has been deposited to a cash collateral account
established by the Administrative Agent) or any other amount is owing to any
Lender or the Administrative Agent hereunder or under any of the other Credit
Documents, it shall, and, in the case of the agreements contained in subsections
7.3 through 7.6, and 7.8 through 7.11, shall cause each of its Subsidiaries to:
7.1. Financial Statements. Furnish to the Administrative Agent or with
sufficient copies for each Lender, which the Administrative Agent shall promptly
furnish to each Lender):
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(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of MCL to end after the Closing Date, a copy of the
consolidated balance sheet of MCL and its consolidated Subsidiaries and a
similar consolidating financial statement for MCL and its Subsidiaries, in
each case as at the end of such fiscal year and the related consolidated
statements of stockholders' equity and cash flows and the consolidated
statements of income of MCL and its Subsidiaries and a similar consolidating
financial statement for MCL and its Subsidiaries, in each case for such
fiscal year, setting forth in the case of the consolidated statements of
income referred to above in comparative form the figures for the previous
year and, in the case of the consolidated balance sheet referred to above,
reported on, without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, or qualification
which would affect the computation of financial covenants, by independent
chartered public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of
MCL to end after the Closing Date, the unaudited consolidated balance sheet
of MCL and its Subsidiaries and a similar consolidating financial statement
for MCL and its Subsidiaries, in each case as at the end of each such
quarter and the related unaudited consolidated statements of income and cash
flows of MCL and its Subsidiaries and a similar consolidating financial
statement of MCL and its Subsidiaries, in each case for such quarterly
period and the portion of the fiscal year of MCL through such date, setting
forth in the case of the consolidated statements of income referred to above
in comparative form the figures for the corresponding quarter in, and year
to date portion of, the previous year, and the figures for such periods in
the budget prepared by MCL and furnished to the Administrative Agent,
certified by the chief financial officer, controller or treasurer of MCL as
being fairly stated in all material respects;
(c) as soon as available, but in any event not later than 30 days after
the beginning of each fiscal year of MCL to end after (i) the Closing Date
to which such budget relates and (ii) the Tranche B Maturity Date, a
preliminary consolidated operating budget for MCL and its Subsidiaries taken
as a whole for such fiscal year; and as soon as available, any material
revision to or any final revision of any such preliminary annual operating
budget or any such consolidated operating budget; and
(d) concurrently with the delivery of financial statements pursuant to
subsection 7.1(a) or (b), a certificate of the chief financial officer or
treasurer of MCL setting forth in reasonable detail the computations of
Capital Expenditures as of the last day of the fiscal period covered by such
financial statements, the Leverage Ratio as of such last day, and the
Consolidated Fixed Charge Coverage Ratio as of such last day;
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all such financial statements described in subsections 7.1(a) and (b) to be
complete and correct in all material respects (subject, in the case of interim
statements, to normal year-end audit adjustments and the absence of footnotes)
and to be prepared in reasonable detail and in accordance with GAAP.
The obligations under subsections 7.1(a) and 7.1(b) may be satisfied by
furnishing to the Administrative Agent the requested financial information via
email or web-posting.
7.2. Certificates; Other Information. Furnish to the Administrative
Agent or with sufficient copies for each Lender which the Administrative Agent
shall promptly deliver to each Lender):
(a) concurrently with the delivery of the consolidated financial
statements referred to in subsection 7.1(a), a letter from the independent
chartered public accountants reporting on such financial statements stating
that in making the examination necessary to express their opinion on such
financial statements no knowledge was obtained of any Default or Event of
Default under subsections 8.1 and 8.9, except as specified in such letter;
(b) within 15 days of the delivery of the financial statements referred
to in subsections 7.1(a) and (b) (except that the certificate referred to in
clause (iii) below shall be delivered concurrently with such financial
statements), a certificate of MCL (executed by a Responsible Officer)
stating that, to the best of such officer's knowledge, during such period
(i) no Subsidiary has been formed or acquired, unless MCL and
Borrower have complied with the requirements of subsection 7.9,
(ii) no Credit Party has changed its name or jurisdiction of
organization without complying with the requirements of this Agreement
and the Security Documents with respect thereto,
(iii) such officer has obtained no knowledge that any Default
or Event of Default has occurred and is continuing, in each case,
except as specified in such certificate, and
(iv) showing in detail as of the end of the related
accounting period the figures and calculations supporting such
statement in respect of paragraph (d) of subsection 8.1, paragraphs (b)
and (e) of subsection 8.3 and subsections 8.6 through 8.11 and any
other calculations reasonably requested by the Ad-
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ministrative Agent with respect to the quantitative aspects of the
other covenants contained herein;
(c) promptly upon receipt thereof, copies of all final reports
submitted to MCL or to any of its Subsidiaries by independent chartered
public accountants in connection with each annual, interim or special audit
of the books of MCL or any of its Subsidiaries made by such accountants,
and, upon the request of any Lender (through the Administrative Agent), any
final comment letter submitted by such accountants to management in
connection with their annual audit;
(d) promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent or made available to
the public generally by MCL or any of its Subsidiaries, if any, and all
regular and periodic reports and all final registration statements and final
prospectuses, if any, filed by MCL or any of its Subsidiaries with any
United States securities exchange or with the SEC or any United States
Governmental Authority succeeding to any of its functions;
(e) concurrently with the delivery of the financial statements referred
to in subsections 7.1(a) and (b), a management summary describing and
analyzing the performance of MCL and its Subsidiaries during the periods
covered by such financial statements; and
(f) [Reserved];
(g) promptly, such additional financial and other information as any
Lender may from time to time reasonably request (through the Administrative
Agent).
The obligations under subsection 7.2(d) may be satisfied by furnishing
to the Administrative Agent the relevant information via email or webposting.
7.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations and liabilities under the Credit Documents.
7.4. Conduct of Business and Maintenance of Existence. Except as
disclosed in Schedules 5.3 and 5.16 and as otherwise permitted by subsections
8.4 and 8.5, preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all material rights,
material privileges, franchises, copyrights, patents, trademarks and trade names
necessary or desirable in the normal conduct of its business except for rights,
privileges, franchises, copyrights, patents, trademarks and trade names the loss
of which would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect; and com-
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ply with all applicable Requirements of Law except to the extent that the
failure to comply therewith would not, in the aggregate, have a Material Adverse
Effect.
7.5. Maintenance of Property; Insurance . (a) Keep all property and
assets used and necessary in its business in good working order and condition
(ordinary wear and tear excepted).
(b) Subject to the other provisions of this subsection 7.5, maintain
with financially sound and reputable insurance companies insurance on all its
property and assets in at least such amounts and with only such deductibles as
are usually maintained by, and against at least such risks as are usually
insured against in the same general area by, companies engaged in the same or a
similar business, and furnish to each Lender, upon written request of any Lender
(made through the Administrative Agent), full information as to the insurance
carried.
(c) Use good faith efforts to ensure that each insurance policy
described in subsection 7.5(b) shall provide that (i) it may not be modified,
reduced, canceled or otherwise terminated without at least twenty (20) days'
prior written notice to the Administrative Agent; (ii) the Administrative Agent
is permitted to pay any premium therefor within thirty (30) days after receipt
of any notice stating that such premium has not been paid when due; (iii) all
losses thereunder shall be payable notwithstanding any act or negligence of any
Credit Party or any of its Subsidiaries or its agents or employees which
otherwise might have resulted in a forfeiture of all or a part of such insurance
payments; (iv) to the extent such insurance policy constitutes property
insurance relating to Collateral, all losses payable thereunder shall be payable
to the Administrative Agent, as loss payee, pursuant to a standard
non-contributory New York mortgagee endorsement and shall be in an amount at
least sufficient to prevent coinsurance liability; and (v) with respect to
liability insurance, the Administrative Agent shall be named as an additional
insured.
7.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities
which permit financial statements to be prepared in conformity with GAAP and all
Requirements of Law; and permit representatives of the Administrative Agent or
any Lender upon reasonable notice (made through the Administration Agent and no
more frequently than quarterly unless a Default or Event of Default shall have
occurred and be continuing) to visit and inspect any Credit Party's or any of
its Subsidiaries' properties or assets and examine and make abstracts from any
of its books and records at any reasonable time and upon reasonable notice, and
to discuss the business, operations, assets and financial and other condition of
any Credit Party or any of its Subsidiaries with officers and employees thereof
and with their independent chartered public accountants with prior reasonable
notice to, and coordination with, the chief financial officer or the treasurer
of Borrower.
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7.7. Notices. Promptly give notice to the Administrative Agent upon a
Responsible Officer of any Credit Party obtaining actual knowledge thereof (to
be distributed by the Administrative Agent to the Lenders):
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any instrument or
other agreement, guarantee or collateral document of any Credit Party or any
of its Subsidiaries which default or event of default has not been waived
and would have a Material Adverse Effect, or (ii) litigation, investigation
or proceeding which may exist at any time between any Credit Party or any of
its Subsidiaries and any Governmental Authority, or receipt of any notice of
any environmental claim or assessment against any Credit Party or any of its
Subsidiaries by any Governmental Authority, which in any such case would
have a Material Adverse Effect;
(c) of any litigation or proceeding against or insolvency of any Credit
Party or any of its Subsidiaries (i) in which more than $5,000,000 of the
amount claimed is not covered by insurance and which is reasonably likely to
have a Material Adverse Effect, (ii) in which injunctive or similar relief
is sought which if obtained would have a Material Adverse Effect or (iii)
the subject matter of which is any Intellectual Property of any Person which
is reasonably likely to have a Material Adverse Effect;
(d) promptly, upon the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Borrower or any of its Subsidiaries or
any Guarantor, in an aggregate amount exceeding $2,000,000, a written notice
specifying the nature thereof, what action any Credit Party or any of its
Subsidiaries or other ERISA Entities have taken, are taking or propose to
take with respect thereto, and, when known, any action taken or threatened
by the Internal Revenue Service, Department of Labor, PBGC or Multiemployer
Plan sponsor with respect thereto;
(e) upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any ERISA Entity with the Internal Revenue Service with respect to
each Pension Plan; (ii) the most recent actuarial valuation report for each
Pension Plan; (iii) all notices received by any ERISA Entity from a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA
Event; and (iv) such other documents or governmental reports or filings
relating to any Employee Benefit Plan as the Administrative Agent shall
reasonably request;
(f) of a Material Adverse Effect known to any Credit Party or any of
its Subsidiaries.
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Each notice pursuant to this subsection 7.7 shall be accompanied by a statement
of a Responsible Officer of Borrower setting forth in reasonable detail the
occurrence referred to therein and (in the cases of clauses (a) through (d))
stating what action (if any) the Credit Parties propose to take with respect
thereto. It is understood that, in an effort to comply with its covenants
hereunder, Borrower may from time to time deliver notices of events (including
events of the types described above) to the Administrative Agent and/or the
Lenders, and that the notification of any event or events shall not constitute
an admission or determination by any Credit Party that the event or events
covered by such notice have resulted or will result in a Material Adverse
Effect.
7.8. Environmental Laws. (a) Except where noncompliance would not
reasonably be expected to result in a Material Adverse Effect (i) comply with
all Environmental Laws applicable to it, and obtain, comply with and maintain
any and all Environmental Permits necessary for its operations as conducted and
as planned; and (ii) use its best efforts to cause all of its tenants,
subtenants, contractors, subcontractors and invitees to comply with all
Environmental Laws, and obtain, comply with and maintain any and all
Environmental Permits, applicable to any of them.
(b) Comply with all orders, decrees and lawful directives pursuant to
Environmental Laws issued to any Credit Party or any of its Subsidiaries by any
Governmental Authority, other than such orders, decrees and lawful directives
(x) as to which an appeal or other challenge has been timely and properly taken
in good faith or (y) which would not reasonably be expected to give rise to a
Material Adverse Effect.
(c) Maintain, update as appropriate and implement in all material
respects an environmental program designed to (i) ensure that each Credit Party
and its Subsidiaries, any of their respective operations (including, without
limitation, disposal of Hazardous Materials), and any properties owned, leased
or otherwise operated by any of them, attain and remain in substantial
compliance with all applicable Environmental Laws; (ii) reasonably and prudently
manage any liabilities or potential liabilities that each Credit Party and its
Subsidiaries, any of their respective operations (including, without limitation,
disposal of Hazardous Materials), and any properties owned, leased or otherwise
operated by any of them, may be subject to under all applicable Environmental
Laws; and (iii) ensure that each Credit Party and its Subsidiaries undertake
reasonable efforts to identify, and evaluate, issues of compliance with and
potential liability under Environmental Laws prior to acquiring, directly or
indirectly, any ownership or leasehold interest in real property, or other
interest in any real property that could give rise to any Credit Party or any of
its Subsidiaries being subjected to liability under any Environmental Law as a
result of such acquisition, in each case except where any failures to maintain,
update as appropriate, and implement in all material respects an environmental
program as described above, individually or in the aggregate, after giving
effect to any mainte-
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▇▇▇▇▇, updating or implementation efforts undertaken, would not reasonably be
expected to result in a Material Adverse Effect.
7.9. Additional Collateral and Guarantees. (a) With respect to any
Properties acquired after the Closing Date by Borrower or any of its
Subsidiaries or MCL (other than any Foreign Subsidiary of Borrower) that are
intended to be subject to the Lien created by any of the Security Documents but
which are not so subject (but, in any event, excluding any assets described in
paragraph (b) of this subsection promptly (and in any event within 60 days after
the acquisition thereof)): (x) execute and deliver to the Administrative Agent
such amendments or supplements to the relevant Security Documents or such other
documents as the Administrative Agent shall deem necessary or advisable to grant
to the Administrative Agent, for its benefit and for the benefit of the other
Secured Parties, a Lien on such Properties subject to no Liens other than
Permitted Liens, and (y) take all actions necessary to cause such Lien to be
duly perfected to the extent required by such Security Document in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements in such jurisdictions as may be reasonably
requested by the Administrative Agent. Each Credit Party shall otherwise take
such actions and execute and/or deliver to the Administrative Agent such
documents as the Administrative Agent shall require to confirm the validity,
perfection and priority of the Lien of the Security Documents against such
after-acquired Properties.
(b) With respect to any Person that is or becomes (1) a direct
Subsidiary of MCL; (2) a Subsidiary of ▇▇▇▇▇ Holdings U.S.A. Inc. which holds
directly or indirectly 100% of the Capital Stock of Borrower; or (3) a direct or
indirect Subsidiary of Borrower, in each case that has assets having either book
value or fair market value in excess of $2,000,000, promptly (and in any event
within 60 days after such Person becomes a Subsidiary or has such assets) (i)
deliver to the Administrative Agent the certificates representing the Capital
Stock of such Subsidiary (except that with respect to any Foreign Subsidiary of
Borrower, in no event shall more than 66 2/3% of the Capital Stock of any
Foreign Subsidiary be subject to any Lien or pledged under any Credit Document),
together with undated stock powers executed and delivered in blank by a
Responsible Officer of such Credit Party and all intercompany notes, if any,
owing from such Subsidiary to any Credit Party, together with undated
instruments of transfer executed and delivered in blank by a Responsible Officer
of such Credit Party, and (ii) cause such new Subsidiary (x) to become a party
to the Subsidiary Guarantee and the applicable Security Agreement or such
comparable documentation which is in form and substance reasonably satisfactory
to the Administrative Agent, and (y) to take all actions necessary or advisable
to cause the Lien created by the applicable Security Agreement to be duly
perfected to the extent required by such agreement in accordance with all
applicable Requirements of Law, including, without limitation, if applicable,
the filing of financing statements in such jurisdictions as may be reasonably
requested by the Administrative Agent; provided, however, that (a) subject to
subsection 7.9(c)(B), no Foreign Subsidiary of Borrower need be-
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come a Subsidiary Guarantor or a party to the applicable Security Agreement and
with respect to any Foreign Subsidiary of Borrower that is not a direct
Subsidiary of Borrower or a direct Subsidiary of a Domestic Subsidiary of
Borrower, neither MCL nor any of its Subsidiaries need comply with clause (i)
above, (b) no direct Subsidiary of MCL need become a party to the applicable
Security Agreement (other than Borrower, ▇▇▇▇▇ Holdings U.S.A. Inc. or any
Subsidiary of ▇▇▇▇▇ Holdings U.S.A. Inc. which holds directly or indirectly 100%
of the Capital Stock of Borrower), (c) subject to subsection 7.9(c)(B), no
direct Subsidiary of MCL that is not a wholly owned Subsidiary of MCL need
become party to a Subsidiary Guarantee and (d) subject to subsection 7.9(c)(B),
no Subsidiary of MCL need become party to a Subsidiary Guarantee or any Security
Agreement to the extent prohibited by applicable law.
(c) If (A) at any time any two or more wholly owned Subsidiaries in the
aggregate of MCL not otherwise subject to subsection 7.9(b) other than by virtue
of clauses (a)-(d) of the proviso thereof produce revenue in excess of 5% of
total revenue of MCL and its Subsidiaries (as evidenced by the most recent
financial statements delivered pursuant to subsection 7.1), comply with
subsection 7.9(b) within 60 days after the end of the most recent fiscal quarter
then ended so that no two or more such Subsidiaries produce revenue in excess of
5% of total revenue of MCL and its Subsidiaries or (B) any Subsidiary which is
not a Guarantor guarantees any Indebtedness of MCL or any of its Subsidiaries
(other than a guarantee by a Non-Qualified Subsidiary of another Non-Qualified
Subsidiary's Indebtedness), comply immediately with subsection 7.9(b) regardless
of whether such Subsidiary is a Foreign Subsidiary of Borrower.
(d) Notwithstanding the foregoing, (1) the Subsidiaries of MCL or
Borrower listed on Schedule 7.9 need not comply with subsection 7.9, and (2)
Borrower may designate any Subsidiary of MCL or Borrower created or acquired
after the Closing Date as a Non-Qualified Subsidiary which need not comply with
subsection 7.9 if (i) such designation is made prior to any Investment made in
such Subsidiary, (ii) such designation is made prior to any Affiliate
transaction as described in subsection 8.12 and (iii) Borrower shall have
provided the Administrative Agent with prior written notice of such designation.
7.10. Post-Closing Matters. Execute and deliver the documents and
complete the tasks set forth on Schedule 7.10, in each case within the time
limits specified on such schedule.
7.11. Compliance with Law. Conduct its business and affairs in
compliance with all Laws applicable thereto except to the extent failure to do
so would not, in the aggregate, be reasonably likely to have a Material Adverse
Effect.
7.12. Security Interests; Further Assurances. Promptly (but in no event
later than 5 days), upon the reasonable request of Administrative Agent or any
Lender, at Bor-
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rower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby superior to and prior to the rights
of all third Persons other than the holders of Permitted Liens and subject to
other Liens except as permitted by the Security Documents, or use good faith
efforts to obtain any consents, including, without limitation, landlord or
similar lien waivers and consents, as may be necessary or appropriate in
connection therewith. Deliver or cause to be delivered to the Administrative
Agent from time to time such other documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to the
Administrative Agent as Administrative Agent shall reasonably deem necessary to
perfect or maintain the Liens on the Collateral pursuant to the Security
Documents. Upon the exercise by Administrative Agent or the Lenders of any
power, right, privilege or remedy pursuant to any Credit Document which requires
any consent, approval, registration, qualification or authorization of any
Governmental Authority execute and deliver all applications, certifications,
instruments and other documents and papers that Administrative Agent or the
Lenders may be so required to obtain.
7.13. Required Interest Rate Agreements. Within 35 days after the
Closing Date, Borrower at all times so long as any Loan or Commitment is
outstanding shall enter into Interest Rate Agreements designed to protect
Borrower against fluctuations in interest rates with respect to at least 50% of
the aggregate principal amount of the Tranche B Term Loans on terms and with
counterparties reasonably satisfactory to the Administrative Agent.
7.14. Use of Proceeds and Letters of Credit. The proceeds of any
Tranche A Term Loan will be used only to fund certain Permitted Acquisitions and
any related initial working capital requirements with respect thereto. The
proceeds of any Tranche B Term Loan will be used to fund the refinancing of the
Existing Senior Notes. The proceeds from the Revolving Credit Loans and the
Swing Line Loans will be used only for general corporate purposes and to fund
Borrower's working capital requirements.
7.15. Taxes. MCL shall, and shall cause each of its Subsidiaries to,
timely and correctly file all material Tax Returns required to be filed by it.
MCL shall pay or cause to be paid or discharged, when due, all Taxes, charges
and assessments against MCL and its Subsidiaries or their property and all other
lawful claims required to be paid by MCL or such Subsidiaries, except as
contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves have been established in accordance with
GAAP.
7.16. Existing Senior Notes. The Existing Senior Notes shall be paid in
full prior to all extensions of credit under this Agreement exceeding
$140,000,000 (unless the pro-
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ceeds of such extensions of credit are being contemporaneously used to repay the
Existing Senior Notes in full).
SECTION 8. NEGATIVE COVENANTS
Each Credit Party hereby agrees that it shall not, and it shall not
permit any of its Subsidiaries to, directly or indirectly, so long as the
Commitments remain in effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount remains available to be drawn under any
Letter of Credit (unless cash in an amount equal to such amount has been
deposited to a cash collateral account established by the Administrative Agent)
or any other amount is owing to any Lender or the Administrative Agent hereunder
or under any other Credit Document (it being understood that each of the
permitted exceptions to each of the covenants in this Section 8 is in addition
to, and not overlapping with, any other of such permitted exceptions except to
the extent expressly provided):
8.1. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) the Indebtedness outstanding on the Closing Date and disclosed in
Schedule 8.1(a), including the Refinancing of any such Indebtedness on terms
and conditions taken as a whole no less favorable to MCL and its
Subsidiaries or the Lenders than the Indebtedness being Refinanced;
(b) Indebtedness consisting of the Loans and in connection with the
Letters of Credit and this Agreement;
(c) Contingent Obligations permitted by subsection 8.3;
(d) Indebtedness
(i) of any Credit Party to MCL or any Subsidiary of MCL,
(ii) of any Non-Qualified Subsidiary to any other
Non-Qualified Subsidiary, and
(iii) of any Non-Qualified Subsidiary to MCL or any of its
Subsidiaries in an aggregate principal amount at any time outstanding
not to exceed $10,000,000 (plus the sum of any amounts dividended or
distributed by any Non-Qualified Subsidiary to any Credit Party), minus
the sum of (x) the amount of any guarantees of obligations of
Non-Qualified Subsidiaries pursuant to subsection 8.3(c)(ii) and (y)
the amount of investments made in a Non-Qualified Subsidiary pursuant
to subsection 8.6(b)(iii);
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provided if any Subsidiary of MCL would be required to comply with
subsection 7.9(b) immediately after giving effect to the incurrence of any
such Indebtedness and the application of the resulting proceeds, such
Subsidiary shall comply with the requirements of such subsection within 10
days of the transaction giving rise to such requirement;
(e) other unsecured Indebtedness of MCL or any of its Subsidiaries in
an aggregate principal amount at any one time outstanding not in excess of
$20,000,000;
(f) Indebtedness of MCL or any of its Subsidiaries in respect of
Financing Leases in an aggregate principal amount at any one time
outstanding not in excess of $20,000,000 so long as subsections 8.7 and 8.9
would not be contravened;
(g) Subordinated Indebtedness of MCL or any of its Subsidiaries in an
aggregate principal amount at any time outstanding not in excess of
$150,000,000;
(h) Indebtedness in connection with surety bonds, letters of credit and
performance bonds obtained in the ordinary course of business in connection
with workers' compensation obligations of MCL or any of its Subsidiaries;
(i) Indebtedness of Foreign Subsidiaries of MCL in an aggregate
principal amount at any time outstanding not in excess of the equivalent at
the date of each incurrence thereof of $15,000,000 at any time outstanding;
(j) Indebtedness of MCL or any of its Subsidiaries for the deferred
purchase price of newly acquired property and to finance equipment of any
Credit Party or its Subsidiaries (pursuant to purchase money mortgages or
otherwise and whether owed to the seller or a third party) used in the
ordinary course of business (provided that such financing is entered into
within 180 days of the acquisition of such property) of MCL or its
Subsidiaries in an amount (based on the remaining balance of the obligations
therefor on the books of MCL) which shall not exceed $25,000,000 in the
aggregate at any one time outstanding, and Refinancings of Indebtedness
permitted under this subsection 8.1(j);
(k) Indebtedness under Hedge Agreements permitted by subsection 8.8;
and
(l) Indebtedness (i) of a Person assumed in connection with an
Acquisition of such Person (or Indebtedness of such Person existing at the
time such Person was acquired) so long as such Indebtedness was not incurred
in anticipation of, or in connection with, such Acquisition, and (ii) to any
one or more Persons selling the entity or assets acquired in an Acquisition
(including seller earnouts) which such Indebtedness to any seller shall be
on terms, conditions and pursuant to documentation reasonably sat-
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isfactory to the Administrative Agent and Refinancings of Indebtedness
permitted pursuant to this subsection 8.1(l); provided, however, that
Indebtedness under this subsection 8.1(l) shall not exceed $25,000,000 in
the aggregate at any time outstanding.
Notwithstanding any of the foregoing, in no event shall the
Indebtedness of BVBA (other than pursuant to the Guarantees) exceed $20,000,000
in the aggregate at any time outstanding.
8.2. Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets, income or profits, whether now owned or
hereafter acquired, except:
(a) Liens for taxes, assessments or other governmental charges not yet
delinquent or which are being contested in good faith and by appropriate
proceedings if (i) adequate reserves with respect thereto are maintained on
the books of MCL or the relevant Subsidiary, as the case may be, in
accordance with GAAP and (ii) in the case of any such charge which has or
may become a Lien against any of the Collateral, such Lien and the contest
thereof shall satisfy the Contested Collateral Lien Conditions;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
in respect of obligations which are not yet due or which are bonded or which
are being contested in good faith and by appropriate proceedings if (i)
adequate reserves with respect thereto are maintained on the books of MCL or
the relevant Subsidiary, as the case may be, in accordance with GAAP and
(ii) in the case of any such Lien against any of the Collateral, such Lien
and the contest thereof shall satisfy the Contested Collateral Lien
Conditions;
(c) pledges or deposits made and Liens arising in the ordinary course
of business in connection with workers' compensation, unemployment or
employee insurance, employee tax withholdings and other social security
legislation;
(d) deposits to secure the performance of bids, tenders, trade or
government contracts, leases, licenses, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature (in
each case, other than for borrowed money) incurred in the ordinary course of
business for amounts not yet delinquent or, to the extent such amounts are
so delinquent, such amounts are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted if (i) adequate
reserves with respect thereto are maintained on the books of MCL or the
relevant Subsidiary, as the case may be, in accordance with GAAP and (ii) in
the case of any such Lien against any of the Collateral (A) such Lien and
the contest thereof shall satisfy the Contested Collateral Lien Conditions
and (B) to the extent such Liens
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are not imposed by law, such Lien shall in no event encumber any Collateral
other than cash or Cash Equivalents;
(e) easements (including, without limitation, reciprocal easement
agreements), rights-of-way, building, zoning and similar restrictions,
utility agreements, covenants, reservations, restrictions, minor
encroachments, and other similar minor encumbrances, defects or
irregularities in title which do not, individually or in the aggregate,
materially interfere with or adversely affect in any material respect the
ordinary conduct of the business of MCL or its Subsidiaries on the Real
Property subject thereto;
(f) Liens in favor of the Administrative Agent and the Lenders (or any
Person party to an Interest Rate Agreement with Borrower who was a Lender or
an Affiliate of a Lender at the date of entering into such Interest Rate
Agreement with Borrower) pursuant to the Credit Documents, including Liens
pursuant to the Credit Documents in respect of Interest Rate Agreements, and
bankers' liens arising by operation of law relating thereto;
(g) Liens on property of MCL or any of its Subsidiaries created solely
for the purpose of securing
(i) Indebtedness not exceeding $15,000,000 in aggregate
amount at any time outstanding permitted by subsection 8.1(i); or
(ii) Indebtedness permitted by subsection 8.1(j) representing
or incurred to finance, refinance or refund the purchase price of
property; or
(iii) Indebtedness of MI Insurance Ltd. which is permitted by
subsection 8.1 in connection with letters of credit issued for workers'
compensation and insurance purposes;
provided that (A) no such Lien incurred in connection with Indebtedness
pursuant to subsection 8.1(j) shall extend to or cover other property of MCL
or any of its Subsidiaries other than the respective property so acquired,
and the principal amount of Indebtedness secured by any such Lien shall at
no time exceed the original purchase price of such property and (B) no such
Lien incurred in connection with Indebtedness pursuant to subsection 8.1(i)
shall extend to or cover any Collateral;
(h) Liens existing on the Closing Date after giving effect to the
consummation of the Transactions and described in subsection 5.13 or
Schedule 8.2(h); provided that no such Lien shall extend to or cover other
assets or property of MCL or any of its Subsidiaries other than the
respective assets or property encumbered by such Lien on the Closing Date;
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(i) Liens on documents of title and the property covered thereby
securing Indebtedness in respect of the Commercial L/Cs or other commercial
letters of credit;
(j) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on property over which MCL or any
of its Subsidiaries has easement rights or on any Property that is leased
and subordination or similar agreements relating thereto and (ii) any
condemnation or eminent domain proceedings affecting any real property;
(k) leases or subleases, licenses or sublicenses with respect to the
assets or properties of MCL or any of its Subsidiaries, in each case,
entered into in the ordinary course of MCL's or such Subsidiary's business
so long as such leases or subleases do not, individually or in the
aggregate, (A) interfere in any material respect with the ordinary conduct
of the business of MCL or any of its Subsidiaries or (B) materially impair
the use (for its intended purposes) or the value of the assets or property
subject thereto;
(l) Liens on goods (and proceeds thereof) financed with drawings under
commercial letters of credit securing reimbursement obligations in respect
of such commercial letters of credit issued in accordance with the terms of
this Agreement;
(m) Liens on a Person or assets acquired in an Acquisition which were
existing on the date of such Acquisition and not created in anticipation of
such Acquisition; provided, however, that (1) such Liens do not extend
beyond the assets of the Person or assets acquired and (2) any Indebtedness
secured by such Liens is permitted by subsection 8.1(l);
(n) Liens in respect of Financing Leases permitted pursuant to
subsection 8.1(f), so long as the Liens do not extend to or cover property
of any Credit Party or any of its Subsidiaries other than the property
subject to the respective Financing Lease or Financing Leases and the
related contract rights and proceeds;
(o) Interests of lessors under operating leases and UCC financing
statements in respect thereof;
(p) banker's liens and rights of set-off relating to deposit accounts;
and
(q) interests of a licensor under a license agreement; and
(r) precautionary UCC, PPSA or similar financing statements or filings
filed against a Credit Party as lessee or sublessee or consignee.
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8.3. Limitation on Contingent Obligations. Create, incur, assume or
suffer to exist any Contingent Obligation, except:
(a) the Guarantees;
(b) other guarantees by MCL or any of its Subsidiaries incurred in the
ordinary course of business for an aggregate amount at any time outstanding
not to exceed $10,000,000;
(c) guarantees by MCL or any of its Subsidiaries;
(i) of obligations of Borrower or any Qualified Subsidiary,
and
(ii) of obligations of any Non-Qualified Subsidiary in an
aggregate principal amount not to exceed $10,000,000 (plus the sum of
any amounts dividended or distributed by such Non-Qualified
Subsidiaries to any Credit Party), minus the sum of (A) the amount
outstanding pursuant to subsection 8.1(d)(iii) and (B) the amount of
investments made in Non-Qualified Subsidiaries pursuant to subsection
8.6(b)(iii);
provided that, in each case, if the primary obligation being guaranteed is
subordinated, such guarantees are subordinated to the Guarantees on
substantially the same basis as such primary obligation is subordinated to
the Loans;
(d) Contingent Obligations existing on the Closing Date and described
in Schedule 8.3(d) and Contingent Obligations relating to any Indebtedness
permitted under subsection 8.1(a);
(e) guarantees of obligations to third parties in connection with
relocation of employees of MCL or any of its Subsidiaries, in an amount
which, together with all loans and advances made pursuant to subsection
8.6(f), shall not exceed $3,000,000 at any time outstanding;
(f) Contingent Obligations in connection with workers' compensation
obligations, and in connection with performance, surety and appeal bonds,
and similar obligations incurred in the ordinary course of business, of any
Credit Party or any of its Subsidiaries;
(g) Hedge Agreements permitted by subsection 8.8 or otherwise entered
into in the ordinary course of business to hedge obligations and not for
speculative purposes;
(h) endorsements for collection in the ordinary course of business; and
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(i) guarantees by any Non-Qualified Subsidiary of any obligations of
any Non-Qualified Subsidiary.
8.4. Prohibition of Fundamental Changes. Enter into any merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or engage in any type of business other
than of the same general type now conducted by it, except:
(a) for the transactions otherwise permitted pursuant to paragraph (b),
(g) or (h) of subsection 8.5 or pursuant to subsection 8.6;
(b) MCL or any Subsidiary thereof may be merged with or into Borrower
or any Qualified Subsidiary;
(c) any Non-Qualified Subsidiary may be merged with or into any
Non-Qualified Subsidiary;
(d) any Subsidiary of MCL (other than Borrower or any of its
Subsidiaries) may be merged with or into MCL; and
(e) any Subsidiary of MCL which is not a Credit Party may dissolve,
wind up or liquidate (or be dissolved, wound up or liquidated);
provided that in connection with the foregoing, the appropriate Credit Parties
shall take all actions necessary or reasonably requested by the Administrative
Agent to maintain the perfection or perfect, as the case may be, protect and
preserve the Liens on the Collateral granted to the Administrative Agent
pursuant to the Security Documents and otherwise comply with the provisions of
subsection 7.9 to the extent applicable.
8.5. Prohibition on Sale of Assets . Convey, sell, lease (other than a
sublease of real property), assign, transfer or otherwise dispose of (including
through a transaction of merger or consolidation of any Subsidiary) any of its
property, business or assets (including, without limitation, other payments and
receivables but excluding leasehold interests), whether now owned or hereafter
acquired, except:
(a) sales or other dispositions of inventory in the ordinary course of
business;
(b) that MCL or any of its Subsidiaries may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to, and MCL or any of its Subsidiaries may merge or amalgamate
with and into, Borrower or any Qualified Subsidiary (or, in the case of any
Non-Qualified Subsidiary, into MCL or another Non-Qualified Subsidiary), and
MCL or any of its Subsidiaries may sell or
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otherwise dispose of, or part with control of any or all of, the Capital
Stock of any Subsidiary to Borrower or any Qualified Subsidiary (or, if a
Non-Qualified Subsidiary, to MCL or to another Non-Qualified Subsidiary);
provided that (i) Borrower shall not, directly or indirectly, transfer any
substantial part of its assets pursuant to this paragraph and (ii) all
actions necessary or reasonably requested by the Administrative Agent shall
be taken by the appropriate Credit Parties to maintain the perfection or
perfect, as the case may be, protect and preserve the Liens on the
Collateral granted to the Administrative Agent pursuant to the Security
Documents;
(c) leases of Fee Properties and other real property owned in fee;
(d) any Taking or Destruction affecting any Property subject, however,
to the proviso set forth in clause (b) of the definition of Net Proceeds;
(e) dispositions described on Schedule 8.5;
(f) the sale or other disposition of any Property that, in the
reasonable judgment of MCL or any of its Subsidiaries, has become
uneconomic, obsolete or worn out, and that is sold or disposed of in the
ordinary course of business for proceeds not to exceed $3,000,000 per annum;
provided that, to the extent such Properties constituted Collateral, the net
proceeds thereof shall be reinvested in Properties owned (or to be owned) by
a Credit Party or one of its wholly owned Subsidiaries having a fair market
value at least equal to the amount of such net proceeds and any Property
purchased with such net proceeds shall be pledged to the Administrative
Agent, for its benefit and for the benefit of the other Secured Parties, in
accordance with subsection 7.9;
(g) transactions permitted by subsection 8.4;
(h) any sale or disposition of any interest in Property; provided that
(i) so long as no Event of Default then exists, the net proceeds of any such
sale shall constitute Net Proceeds only to the extent such net proceeds are
not reinvested in Properties owned (or to be owned) by a Credit Party or one
of its wholly owned Subsidiaries having a fair market value at least equal
to the amount of such net proceeds within 270 days from the date of such
sale, (ii) if the Property so sold constituted Collateral under the Security
Documents, then (x) such net proceeds shall be deposited and maintained in
the Collateral Account pending the reinvestment contemplated in clause
(h)(i) of this subsection 8.5 and applied in accordance with subsection
12.2; provided, that there shall be no obligation to deposit any such net
proceeds unless and until, and only to the extent that, the aggregate amount
at any time outstanding (and not applied in accordance with this Agreement)
exceeds $15,000,000 (such $15,000,000 to be calculated net of the amount to
be reinvested under any then existing binding contract en-
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tered into by MCL or any of its Subsidiaries to reinvest such net proceeds),
and (y) any Property purchased with the net proceeds thereof shall be
mortgaged or pledged, as the case may be, to the Administrative Agent, for
its benefit and for the benefit of the other Secured Parties in accordance
with subsection 7.9, and (iii) the aggregate amount of net proceeds for all
such sales received collectively by MCL and its Subsidiaries shall not
exceed $30,000,000 per annum;
(i) Subsidiaries may (x) be dissolved in accordance with subsection 8.4
and (y) pay dividends in accordance with subsection 8.11;
(j) Investments permitted by subsection 8.6;
(k) licenses or sublicenses by MCL or any of its Subsidiaries of
software, Intellectual Property and general intangible and leases, licenses
or subleases of other property in the ordinary course of business and which
do not materially interfere with the business of MCL or any of its
Subsidiaries;
(l) any disposition or dispositions (in an aggregate amount not to
exceed $10,000,000 during the term of this Agreement) in connection with a
Sale and Leaseback Transaction; provided that (i) so long as no Event of
Default then exists, the net proceeds of any such Sale and Leaseback
Transaction shall constitute Net Proceeds only to the extent such net
proceeds are not reinvested in properties or assets owned (or to be owned)
by a Credit Party or one of its wholly owned Subsidiaries having a fair
market value at least equal to the amount of such net proceeds within twelve
months from the date of such sale and (ii) if the property so sold
constituted Collateral under the Security Documents, then (x) such net
proceeds shall be deposited and maintained in the Collateral Account pending
the reinvestment contemplated in clause (h)(i) of this subsection 8.5 and
applied in accordance with subsection 12.2; provided, that, there shall be
no obligation to deposit any such net proceeds unless and until, and only to
the extent that, the aggregate amount at any time outstanding (and not
applied in accordance with this Agreement) exceeds $15,000,000 (such
$15,000,000 to be calculated net of the amount to be reinvested under any
then existing binding contract entered into by MCL or any of its
Subsidiaries to reinvest such net proceeds), and (y) any property purchased
with the net proceeds thereof shall be mortgaged or pledged, as the case may
be, to the Administrative Agent, for its benefit and for the benefit of the
other Secured Parties, to the extent required by subsection 7.9;
(m) the sale or other disposition of the equity or assets of Peak
Technologies, Inc., an Illinois corporation, for fair market value as
reasonably determined by Borrower; and
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(n) sales of receivables and related assets to one or more direct or
indirect wholly owned Subsidiaries of MCL on customary business terms (as
reasonably determined by Borrower) (i) whose Capital Stock is pledged to the
Administrative Agent for the benefit of the Secured Parties pursuant to a
Security Document reasonably acceptable to the Administrative Agent (ii) who
is a Guarantor; (iii) who shall be subject to all the covenants contained in
this Agreement as if references to BVBA contained therein are to such wholly
owned Subsidiary of MCL; and (iv) whose business function is substantially
similar to BVBA.
8.6. Limitation on Investments. Make any Investment in (including,
without limitation, any acquisition of all or any substantial portion of the
assets, and any acquisition of a business or a product line, of other companies,
other than the acquisition of inventory in the ordinary course of business), any
Person (except to the extent permitted by subsection 8.3 or 8.7), except:
(a) loans, advances or Indebtedness permitted by subsections 8.1(c) and
8.1(d);
(b) Investments
(i) by any Non-Qualified Subsidiary in another Non-Qualified
Subsidiary;
(ii) by MCL or any of its Subsidiaries in Borrower or a
Qualified Subsidiary; and
(iii) by MCL or any of its Subsidiaries in any Non-Qualified
Subsidiary (including to create any Non-Qualified Subsidiary); provided
that (x) the requirements, if any, of subsection 7.9 are satisfied and
(y) the aggregate amount of all investments in such Non-Qualified
Subsidiaries shall not exceed (I) $10,000,000 (plus the sum of any
amounts dividended or distributed by such Non-Qualified Subsidiaries to
a Credit Party), minus (II) the sum of (x) the amount of any guarantees
of Obligations of Non-Qualified Subsidiaries pursuant to subsection
8.3(c)(ii) and (y) the amount of any Indebtedness of any Non-Qualified
Subsidiary at any such time outstanding in accordance with subsection
8.1(d)(iii);
(c) MCL or any of its Subsidiaries may invest in, acquire and hold Cash
Equivalents.
(d) MCL or any of its Subsidiaries may make payroll advances in the
ordinary course of business;
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(e) MCL or any of its Subsidiaries may acquire and hold receivables
owing to it, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; provided
that nothing in this clause (e) shall prevent MCL or any of its Subsidiaries
from offering such concessionary trade terms, or from receiving such
investments, in connection with the bankruptcy or reorganization of its
suppliers or customers or the settlement of disputes with such customers or
suppliers arising in the ordinary course of business, as management deems
reasonable in the circumstances;
(f) MCL or any of its Subsidiaries may make travel and entertainment
advances and relocation and other loans to officers and employees of MCL or
any of its Subsidiaries; provided that the aggregate principal amount of all
such loans and advances outstanding at any one time, together with the
guarantees of such loans and advances made pursuant to subsection 8.3(e),
shall not exceed $3,000,000 at any one time outstanding;
(g) Investments by Borrower, MCL and any Subsidiary of MCL that is a
Guarantor not to exceed $50,000,000 at any time outstanding;
(h) Investments made in order to consummate Acquisitions; provided,
however, that (w) no Default or Event of Default exists or will result
therefrom; (x) on a pro forma basis, after giving effect to such
Acquisition(s), (A) MCL would have been in compliance with subsection 8.9 on
the last day of the most recently completed fiscal quarter (assuming, for
purposes of subsection 8.9, that such Acquisition had occurred on the first
day of the trailing four quarter period ending on such last day) as
evidenced in an Officers' Certificate delivered to the Administrative Agent
and each Lender at least 10 Business Days prior to the consummation of such
Acquisition, accompanied by supporting schedules and data in reasonable
detail, and (B) MCL can reasonably be expected to remain in compliance with
such covenants through the final maturity date of the Loans and to have
sufficient cash liquidity to conduct its business and pay its debts and
other liabilities as they come due; (y) the aggregate amount of the
Acquisition Consideration (which for each Acquisition shall be measured at
the date of consummation thereof) for all Acquisitions consummated since the
Closing Date shall not exceed $150,000,000; and (z) such Acquisition shall
be effected through Borrower or a Qualified Subsidiary and the Person
acquired shall be merged with or into a Borrower or a Qualified Subsidiary
or shall be at the time of consummation thereof a Qualified Subsidiary (any
such Acquisition in compliance with this subsection 8.6(h), a "Permitted
Acquisition");
(i) MCL or any of its Subsidiaries may make loans to senior management
of MCL or any of its Subsidiaries in an aggregate principal amount not to
exceed
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$1,000,000 for purposes of their purchasing Capital Stock of MCL or any of
its Subsidiaries;
(j) transactions effected in accordance with subsection 8.5;
(k) Contingent Obligations permitted pursuant to subsection 8.3 hereof;
(l) Investments existing as of Closing Date and set forth on Schedule
8.6; and
(m) any Non-Qualified Subsidiary (other than BVBA) may invest in and
hold Investments not to exceed $20,000,000 in the aggregate at any one time
outstanding, and BVBA may invest in Cash Equivalents.
If any Subsidiary would be required to comply with subsection 7.9(b)
immediately after giving effect to any investment permitted by subsection
8.6(b), such Subsidiary shall comply with the requirements of such subsection
within 10 days of the transaction giving rise to such requirement.
8.7. Capital Expenditures. Make or commit to make any Capital
Expenditures, except that the Credit Parties and their Subsidiaries may make or
commit to make Capital Expenditures not exceeding the amount set forth below
(the "Base Amount") for each of the fiscal years or periods of MCL (or other
period) set forth below:
Fiscal Year Base Amount
----------- -----------
2002 $80 million
2003 $75 million
2004 $75 million
2005 $80 million
2006 $80 million
2007 $85 million
2008 $85 million
provided that (A) for any period set forth above, the Base Amount set forth
above may be increased by a maximum of 100% of the Base Amount for any such
period by carrying over to the next period only any portion of the Base Amount
(without giving effect to any increase) not spent in the immediately preceding
period only, and that Capital Expenditures in any period shall be deemed first
made from the Base Amount applicable to such period in any given period, and (B)
notwithstanding anything to the contrary herein, additional Capital Expenditures
may be made with net proceeds received in property sales or dispositions under
subsection 8.5(g), 8.5(h) or 8.5(l).
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8.8. Hedge Agreements. Enter into, create, incur, assume or suffer to
exist any Hedge Agreements or obligations in respect thereof except in the
ordinary course of business for non-speculative purposes or pursuant to
subsection 7.13.
8.9. Financial Covenants.
(A) Leverage Ratio. At the last day of any fiscal quarter set forth
below, permit the Leverage Ratio to be greater than the ratio set forth below
for such fiscal quarter:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
2002 Third 2.75:1.0
Fourth 2.75:1.0
2003 First 2.75:1.0
Second 2.75:1.0
Third 2.75:1.0
Fourth 2.50:1.0
2004 First 2.50:1.0
Second 2.50:1.0
Third 2.50:1.0
Fourth 2.25:1.0
2005 First 2.25:1.0
Second 2.25:1.0
Third 2.25:1.0
Fourth 2.0:1.0
2006 First 2.0:1.0
Second 2.0:1.0
Third 2.0:1.0
Fourth 2.0:1.0
2007 First 2.0:1.0
Second 2.0:1.0
Third 2.0:1.0
Fourth 2.0:1.0
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(B) Consolidated Fixed Charge Coverage. At the last day of any fiscal
quarter set forth below, permit the Consolidated Fixed Charge Coverage Ratio to
be less than the ratio set forth below for such fiscal quarter:
Consolidated
Fixed Charge
Fiscal Year Fiscal Quarter Coverage Ratio
----------- -------------- --------------
2002 Third 2.50:1.0
Fourth 2.50:1.0
2003 First 2.50:1.0
Second 2.50:1.0
Third 2.50:1.0
Fourth 2.50:1.0
2004 First 2.50:1.0
Second 2.50:1.0
Third 2.50:1.0
Fourth 2.75:1.0
2005 First 2.75:1.0
Second 2.75:1.0
Third 2.75:1.0
Fourth 3.0:1.0
2006 First 3.0:1.0
Second 3.0:1.0
Third 3.0:1.0
Fourth 3.0:1.0
2007 First 3.0:1.0
Second 3.0:1.0
Third 3.0:1.0
Fourth 3.0:1.0
8.10. Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of MCL to (a) make Dividend Payments in respect of
any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to,
MCL or any other Subsidiary of MCL, (b) make loans or advances to, or other
Investments in, MCL or any other Subsidiary of MCL or (c)
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transfer any of its assets to MCL or any other Subsidiary of MCL, except for
such encumbrances or restrictions existing under or by reason of (i) any
restrictions existing under the Credit Documents, (ii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement that has been entered
into in connection with the disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary or (iii) documents relating to the
Existing Senior Notes.
8.11. Limitation on Dividends. Declare, make or pay any Dividend
Payments on any shares of any class of Capital Stock, either directly or
indirectly, except that:
(a) Subsidiaries may pay Dividend Payments pro rata to the holders of
their Capital Stock (giving effect to relative preferences and priorities);
(b) MCL or any of its Subsidiaries may pay or make Dividend Payments or
distributions to any holder of its Capital Stock in the form of additional
shares of Capital Stock of the same class and type;
(c) [Reserved];
(d) [Reserved]; and
(e) Borrower may make Dividend Payments to ▇▇▇▇▇ Holdings U.S.A. Inc.
and ▇▇▇▇▇ Holdings U.S.A. Inc. may make Dividend Payments to MCL so that MCL
may repurchase Capital Stock of MCL (and MCL may repurchase Capital Stock of
MCL), provided that (i) the aggregate amount of Dividend Payment by
Borrower, ▇▇▇▇▇ Holdings U.S.A. Inc. and MCL (without duplication for
Dividend Payments by Borrower to ▇▇▇▇▇ Holdings U.S.A. Inc. or by ▇▇▇▇▇
Holdings U.S.A. Inc. to MCL) pursuant to this paragraph (e) shall not exceed
$20,000,000 during each 12 month period during the term of this Agreement
beginning on August 2 of any year and $100,000,000 in the aggregate during
the term of this Agreement, (ii) no Default or Event of Default then exists
or would arise therefrom and each Credit Party is in pro forma compliance
with subsection 8.9 and (iii) on a pro forma basis after giving effect to
such Dividend Payment, there exists at least $50,000,000 of Available
Revolving Credit Commitments.
8.12. Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate except for transactions
which are otherwise permitted under this Agreement or which are in the ordinary
course of MCL's or any of its Subsidiaries' business and which are upon fair and
reasonable terms no less favorable to MCL or such Subsidiary than it would
obtain in a hypothetical comparable arm's length transaction with a Person not
an Affiliate; provided that nothing in this subsection 8.12 shall prohibit MCL
or any of its
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Subsidiaries from engaging in the following transactions: (1) transactions
between or among Credit Parties, (2) the performance of MCL's or any of its
Subsidiaries' obligations under any employment contract, collective bargaining
agreement, employee benefit plan, related trust agreement or any other similar
arrangement heretofore or hereafter entered into in the ordinary course of
business, (3) the payment of fees, compensation and other benefits to, and
customary indemnity and reimbursement provided on behalf of, employees,
officers, directors or consultants of MCL or any of its Subsidiaries in the
ordinary course of business, (4) the maintenance of benefit programs or
arrangements for employees, officers or directors, including, without
limitation, vacation plans, health and life insurance plans, deferred
compensation plans, and retirement or savings plans and similar plans, in each
case, in the ordinary course of business, (5) transactions permitted by
subsection 8.11, (6) transactions between any Credit Party and any Subsidiary of
a Credit Party permitted by subsections 8.1, 8.3, 8.5 and 8.6 and (7)
transactions existing on the Closing Date and included on Schedule 8.12 on the
terms in effect on the Closing Date.
8.13. Limitation on Changes in Fiscal Year. Permit the fiscal year of
MCL to end on a day other than on December 31 in any calendar year.
8.14. Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which MCL and
any of its Subsidiaries is engaged on the Closing Date (or which are
substantially related thereto or are reasonable extensions thereof).
8.15. Amendments to Certain Documents. Amend, modify, waive or
terminate any provisions of the documentation governing the organization of MCL
or any of its Subsidiaries in any such case in a manner which is materially
adverse to any Credit Party or any of its Subsidiaries or the Lenders, without
the consent of the Administrative Agent, which consent shall not be unreasonably
withheld.
8.16. Limitation on Prepayments and Amendments of Certain Debt;
Refinancing of Existing Senior Notes. (a) Optionally prepay, retire, redeem,
purchase, defease or exchange, or make or arrange for any mandatory prepayment,
retirement, redemption, purchase or defeasance, of any outstanding Subordinated
Indebtedness (other than (1) any refinancing of Indebtedness permitted by this
Agreement, (2) the Obligations and (3) the conversion or exchange of
Indebtedness of MCL or any of its Subsidiaries for or into Capital Stock of
MCL), (b) waive, amend, supplement, modify, terminate or release any of the
provisions with respect to any Subordinated Indebtedness of MCL or any of its
Subsidiaries without the prior consent of the Administrative Agent, to the
extent that any such waiver, amendment, supplement, modification, termination or
release would be materially adverse to MCL or any of its Subsidiaries or the
Lenders (provided, however, in no event shall MCL or any of its Subsidiaries
waive, amend, supplement, modify, terminate or release any of the subordination
provi-
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sions with respect to any Subordinated Indebtedness) or would provide for any
amendment or waiver of the Existing Senior Notes such that they need not be
refinanced with the proceeds of the Loans or (c) refinance the Existing Senior
Notes other than with the proceeds of the Loans.
8.17. No Further Negative Pledge. Except with respect to the documents
relating to the Existing Senior Notes and other Indebtedness of one or more
Non-Qualified Subsidiaries described on Schedule 8.1(a) and prohibitions against
other encumbrances on specific property encumbered (and the related agreements
and proceeds) to secure payment of particular Indebtedness permitted hereunder
or prohibitions in license agreements under which MCL or any of its Subsidiaries
is the licensee, enter into any agreement prohibiting the creation or assumption
of any Lien upon its Properties, whether now owned or hereafter acquired, except
pursuant to (a) the Credit Documents, (b) any other agreement that does not
restrict in any manner (directly or indirectly) Liens created pursuant to the
Credit Documents on property or assets of MCL or any of its Subsidiaries
(whether now owned or hereafter acquired) securing the Loans or any Interest
Rate Agreement and does not require the direct or indirect granting of any Lien
securing any Indebtedness or other obligation by virtue of the granting of Liens
on or pledge of property of MCL or of its Subsidiaries to secure the Loans or
any Interest Rate Agreement, and (c) any industrial revenue or development
bonds, acquisition agreement or operating leases of real property and equipment
entered into in the ordinary course of business. Notwithstanding any of the
foregoing, Indebtedness incurred by a Non-Qualified Subsidiary may contain a
provision that no Lien on the assets of such Non-Qualified Subsidiary may exist
unless such Indebtedness is equally and ratably secured with any other
Indebtedness secured by such assets.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
events:
(a) Borrower shall fail to (i) pay any principal of any Loan or Note
when due in accordance with the terms hereof or thereof or to reimburse the
Issuing Lender in accordance with subsection 3.8 or (ii) pay any interest on
any Loan or Note or any other amount payable under any Credit Document
within three days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any Credit
Party in any Credit Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) Any Credit Party shall default in the observance or performance of
any agreement contained in subsection 7.7(a) or 7.9 or Section 8 of this
Agreement; or
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(d) Any Credit Party shall default in the observance or performance of
any other agreement contained in any Credit Document and such default shall
continue unremedied for a period of 30 days after Borrower's receipt of
written notice of such default from the Administrative Agent or any Lender;
or
(e) With respect to any Indebtedness, Interest Rate Agreement or
Contingent Obligation which aggregates in excess of $5,000,000 (other than
the Loans and L/C Obligations) (A) any Credit Party or any of its
Subsidiaries shall (i) default in any payment of principal of or interest on
or other amounts in respect of any such Indebtedness (other than the Loans,
the L/C Obligations and any intercompany debt) or Interest Rate Agreement or
in the payment of any Contingent Obligation, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness,
Interest Rate Agreement or Contingent Obligation was created; or (ii)
default (after giving effect to any applicable grace period) in the
observance or performance of any other agreement or condition relating to
any such Indebtedness, Interest Rate Agreement or Contingent Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness, the party or parties to such
Interest Rate Agreements or beneficiary or beneficiaries of such Contingent
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause (determined without regard to whether
any notice or lapse of time is required), such Indebtedness to become due
prior to its stated maturity, such Interest Rate Agreement to be terminated,
or such Contingent Obligation to become payable, (B) any such Indebtedness,
Interest Rate Agreement or Contingent Obligation shall be declared due and
payable, or required to be prepaid other than by regularly scheduled
required repayment prior to the stated maturity thereof, or (C) any such
Indebtedness, Interest Rate Agreement or Contingent Obligation shall mature
and remain unpaid; or
(f) (i) Any Credit Party or any of its Material Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it as
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or any Credit Party or any of its Material
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Credit Party or any
of its Material Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudi-
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cation or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against any
Credit Party or any of its Material Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) any Credit Party or any of
its Material Subsidiaries shall indicate in writing its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii) or
(iii) above; or (v) any Credit Party or any of its Material Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) An ERISA Event or noncompliance with respect to Foreign Plans shall
have occurred that, in the opinion of the Required Lenders, when taken
together with all other ERISA Events and noncompliance with respect to
Foreign Plans that have occurred, could reasonably be expected to result in
a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against any
Credit Party or any of its Material Subsidiaries involving in the aggregate
a liability (to the extent not paid or fully covered by insurance as to
which the relevant insurance company has acknowledged coverage) of
$5,000,000 or more and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within the time
required by the terms of such judgment; or
(i) Any material Credit Document shall cease, for any reason, to be in
full force and effect or any Credit Party or any of its Subsidiaries shall
so assert in writing, or any Security Document shall cease to give the
Administrative Agent for the benefit of the Secured Parties the rights,
powers and privilege purported to be created thereby or cease to be
effective to grant a perfected Lien on the Collateral described in such
Security Document with the priority purported to be created thereby, subject
to such exceptions as may be permitted therein or herein, and in the case of
any Security Agreement, such condition shall continue unremedied for 10 days
after notice thereof to Borrower by the Administrative Agent or any Lender;
or
(j) There shall have occurred a Change of Control; or
(k) Any non-monetary judgment, order or decree is entered against any
Credit Party or any of its Subsidiaries which does or would reasonably be
likely to have a Material Adverse Effect, and there shall be any period of
45 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;
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then, and in any such event, (x) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to any Credit Party,
automatically (i) the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (ii) all
obligations of the Credit Parties in respect of the Letters of Credit, although
contingent and unmatured, shall become immediately due and payable and the
Issuing Lender's obligations to issue the Letters of Credit shall immediately
terminate and (y) if such event is any other Event of Default, so long as any
such Event of Default shall be continuing, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to Borrower, declare the Commitments and
the Issuing Lender's obligations to issue the Letters of Credit to be terminated
forthwith, whereupon the Commitments and such obligations shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice of default to Borrower, (a) declare all or a portion of the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Notes to be due and payable forthwith, whereupon
the same shall immediately become due and payable, and (b) declare all or a
portion of the obligations of Borrower in respect of the Letters of Credit,
although contingent and unmatured, to be due and payable forthwith, whereupon
the same shall immediately become due and payable and/or demand that Borrower
discharge any or all of the obligations supported by the Letters of Credit by
paying or prepaying any amount due or to become due in respect of such
obligations. All payments under this Section 9 on account of undrawn Letters of
Credit shall be made by Borrower directly to a cash collateral account
established by the Administrative Agent for such purpose for application to
Borrower's reimbursement obligations under subsection 3.8 as drafts are
presented under the Letters of Credit, (x) with the balance, if any, to be
applied to Borrower's obligations under this Agreement and the Notes as the
Administrative Agent shall determine with the approval of the Required Lenders
and (y) after all Letters of Credit have terminated in accordance with their
terms (or been fully drawn upon), and after all obligations under this Agreement
and the Notes have been paid in full (other than ongoing indemnity obligations
where no demand for payment has been made), any excess amounts on deposit shall
be returned to Borrower. Except as expressly provided above in this Section 9,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE AGENTS AND THE ISSUING LENDER
10.1. Appointment. Each Lender hereby irrevocably designate and appoint
Citicorp USA, Inc. as the Administrative Agent under the Credit Documents and
irrevocably authorize Citicorp USA, Inc., as Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the
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Credit Documents, together with such other powers as are reasonably incidental
thereto. For the purposes of holding any security granted by any Credit Party
pursuant to the laws of the Province of Quebec to secure payment of any
debenture or other title of indebtedness issued by any Credit Party, the
Administrative Agent shall be the holder of an irrevocable power of attorney
(fonde de pouvoir within the meaning of Article 2692 of the Civil Code of
Quebec) for all present and future Lenders. By executing an Assignment and
Acceptance, each future Lender shall be deemed to ratify the power of attorney
(fonde de pouvoir) granted to the Administrative Agent hereunder. The
Administrative Agent agrees to act in such capacity. The Lenders and the Credit
Parties agree that notwithstanding Section 32 of the Act respecting the Special
Powers of Legal Persons (Quebec), the Administrative Agent may, as the person
holding the power of attorney of the Lenders, acquire any debentures or other
titles of indebtedness secured by any hypothec granted by any Credit Party to
the Administrative Agent pursuant to the laws of the Province of Quebec. Unless
expressly provided to the contrary in the relevant document, the Administrative
Agent holds any security granted by any Credit Party under the laws of England
in trust for the Administrative Agent, the Issuing Lender and the Lenders from
time to time. Subject to the terms of the Credit Documents, each of the
Administrative Agent, the Issuing Lender and each Lender authorizes the
Administrative Agent to execute, hold and enforce any security granted by any
Credit Party under the laws of England. The perpetuity period for the trusts in
this subsection 10.1 is 80 years. (Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship (except
to the extent that the Administrative Agent acts as trustee as specifically set
out above) with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Credit Documents or otherwise exist against any Agent.)
10.2. Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and each of the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care, except as otherwise
provided in subsection 10.3.
10.3. Exculpatory Provisions. No Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable to any Lender for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with the Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Credit Party or any officer thereof
contained in the Credit Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, the Credit Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of the Credit
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Documents or for any failure of any Credit Party to perform its obligations
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any Credit Document, or to inspect
the properties, books or records of any Credit Party.
10.4. Reliance by Agents. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, entries maintained
in the Register, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such Lenders)
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under any Credit Document in accordance with a request of the Required
Lenders (unless a higher percentage of Lenders is expressly required), and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received written notice from an Agent, a Lender or Borrower or
any other Credit Party referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall promptly give notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that no Agent nor any officers, directors, employees, agents,
attorneys-in-fact or Affiliates thereof has made any representations or
warranties to it and that no act by any Agent
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hereafter taken, including any review of the affairs of the Credit Parties,
shall be deemed to constitute any representation or warranty by such Agent to
any Lender. Each Lender represents to the Agents that it has, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of Borrower and its Subsidiaries and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under the Credit
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of Borrower and its Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Credit Parties which may come into the possession of
such Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.7. Indemnification. The Lenders agree to indemnify the Agents in
their capacity as such (to the extent not reimbursed by the Credit Parties and
without limiting the obligation of the Credit Parties to do so), ratably
according to the respective amounts of their respective Commitments (or, to the
extent such Commitments have been terminated, according to the respective
outstanding principal amounts of the Loans and the L/C Obligations and the
respective obligations, whether as Issuing Lender or a Participating Lender,
under the Letter of Credit), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time (whether
before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of the Commitments, the
Credit Documents or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Agent's gross negligence or willful
misconduct. The agreements in this subsection 10.7 shall survive the repayment
of the Loans and all other amounts payable hereunder.
10.8. Agent in Its Individual Capacity. Each Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Credit Party as though such Agent were not an Agent hereunder.
With respect to Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each
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Agent shall have the same rights and powers, duties and liabilities under the
Credit Documents as any Lender and may exercise the same as though it were not
an Agent, and the terms "Lender" and "Lenders" shall include such Agent in its
individual capacity.
10.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and Borrower.
If the Administrative Agent shall resign as Administrative Agent under the
Credit Documents, then the Required Lenders shall appoint from among the Lenders
a successor agent for the Lenders which successor agent shall, so long as no
Event of Default has occurred and is continuing, be approved by Borrower, which
shall not unreasonably withhold or delay its approval, whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Notes. If no successor agent has accepted appointment as the applicable
Administrative Agent by the date which is 30 days following the retiring
Administrative Agent's notice of registration, the retiring Administrative
Agent's registration shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of such Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 10 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
the Administrative Agent under the Credit Documents.
10.10. Issuing Lender as Issuer of Letters of Credit. Each Revolving
Credit Lender hereby acknowledges that the provisions of this Section 10 shall
apply to the Issuing Lender, in its capacity as issuer of the Letters of Credit,
in the same manner as such provisions are expressly stated to apply to the
Administrative Agent, except that obligations to indemnify the Issuing Lender
shall be ratable among the Revolving Credit Lenders in accordance with their
respective Revolving Credit Commitments (or, if the Revolving Credit Commitments
have been terminated, the outstanding principal amount of their respective
Revolving Credit Loans and L/C Obligations and their respective participating
interests in the outstanding Letters of Credit).
10.11. Other Agents. Each Lender hereby acknowledges that neither the
Syndication Agent, the Sole Lead Arranger, the Co-Documentation Agents nor any
other Lender designated as "Agent" hereunder or herein or in any Credit Document
has any liability hereunder other than in its capacity as a Lender. Each party
hereto agrees that each Agent not a signatory hereto shall be a third party
beneficiary of the rights herein set forth applicable to such Agent.
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10.12. Parallel Debt. (a) Each Credit Party hereby irrevocably and
unconditionally undertake to pay the Administrative Agent amounts equal to any
amounts owing by such Credit Party to each Lender under the Credit Documents as
and when the same fall due for payment thereunder, so that the Administrative
Agent shall be the obligee of such covenant to pay and shall be entitled to
claim performance thereof in its own name and not as agent acting on behalf of
the Lenders.
(b) The Credit Parties and the Administrative Agent acknowledge that
for this purpose such obligations of the Credit Parties are several and are
separate and independent from, and without prejudice to, the identical
obligations which the Credit Parties have to each Lender under the relevant
Credit Documents, provided that this shall not, at the time, result in any
Credit Party incurring an aggregate obligation to the Lenders and Administrative
Agent which is greater than the obligation to the Lenders under the Credit
Documents.
(c) Without prejudice to the foregoing, it is agreed by the parties
that (i) the amounts due and payable by any Credit Party under this subsection
10.12 (the "Parallel Debt") shall be decreased to the extent that such Credit
Party has paid any amounts to the Administrative Agent or any Lender in respect
of liabilities hereunder and vice versa and (ii) the Parallel Debt shall not
exceed the aggregate of the corresponding obligations which any Credit Party has
to the Administrative Agent and the Lenders under the Credit Documents.
(d) Nothing in this subsection 10.12 shall in any way negate, affect or
increase the obligations of any Credit Party to the Administrative Agent and the
Lenders under the Credit Documents in respect of the liabilities under this
Agreement. For the purpose of this subsection 10.12, the Administrative Agent
acts in its own name and on behalf of itself and not as agent or representative
of any other party hereto and any security granted to the Administrative Agent
to secure the Parallel Debt is granted to the Administrative Agent in its
capacity as creditor of the Parallel Debt as well as any other capacity under
the Credit Documents.
(e) Without limiting or affecting the Administrative Agent's rights
against the Credit Parties (whether under this subsection 10.12 or under any
other provision of the Credit Documents), the Administrative Agent agrees with
each Lender (on a several and divided basis) that, subject as set out in the
next sentence, it will not exercise its rights as parallel creditor except with
the consent of each Lender. However, for the avoidance of doubt, nothing in the
previous sentence shall in any way limit the Administrative Agent's right to act
in the protection or preservation of rights under, or to enforce any, Credit
Document (or to do any act reasonably incidental to any of the foregoing).
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SECTION 11. MISCELLANEOUS
11.1. Amendments and Waivers. Except as otherwise expressly set forth
in this Agreement, no Credit Document nor any terms thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 11.1. With the written consent of the Required Lenders, the
Administrative Agent (acting at the request of the Required Lenders) and the
applicable Credit Parties or their Subsidiaries may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to any Credit Document to which they are parties or
changing in any manner the rights of the Lenders or of any such Credit Party or
its Subsidiaries thereunder or waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
any such Credit Document or any Default or Event of Default and its
consequences; provided that:
(a) no such waiver and no such amendment, supplement or modification
shall release all or substantially all of the Guarantees or the Collateral
without the written consent of each affected Lender; provided that,
notwithstanding the foregoing, this paragraph (a) shall not be applicable to
and no consent shall be required for releases of Collateral in connection
with any dispositions permitted by subsection 8.5;
(b) no such waiver and no such amendment, supplement or modification
shall forgive the principal amount or extend the date for any scheduled
amortization payment of any Loan or Note, or extend the stated expiration
date of any Letter of Credit beyond the Revolving Credit Termination Date as
then in effect, or reduce the stated rate of any interest, fee or letter of
credit commission payable hereunder (except in connection with the waiver of
applicability of any post-default increase in interests, fees or letter of
credit commission, and it being further understood and agreed that any
amendment or modification to the financial definitions in this Agreement
shall not constitute a reduction in the rate of interest, fees or letter of
credit commission for the purposes of this clause (b)) or extend the
scheduled date of any payment of any interest, fee or commitment commission,
or increase the amount of the Commitments (it being understood that waivers
or modifications of conditions precedent, covenants, Defaults of Events of
Default or of mandatory reductions in the Commitments shall not constitute
an increase in the Commitments of any Lender), or modify subsection 11.7(a)
or subsection in case without the written consent of each Lender whose
obligations or Revolving Credit Commitments, as the case may be, held
hereunder are being directly modified thereby;
(c) no such waiver and no such amendment, supplement or modification
shall amend, modify or waive any provision of this subsection 11.1 (except
for technical amendments with respect to additional extensions of credit
pursuant to this Agreement
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which afford the protections to such additional extensions of credit of the
type provided to the Loans and the Commitments on the Closing Date) or
reduce any percentage specified in the definition of Required Lenders (it
being understood that, with the written consent of the Required Lenders
(such consent not required with respect to the Term Loan B Facility
Increase), additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the
same basis as the extensions of Loans and Revolving Credit Commitments are
included in the Closing Date), or consent to the assignment or transfer by
any Credit Party of any of its rights and obligations under this Agreement
and the other Credit Documents, in each case without the written consent of
all Lenders;
(d) no such waiver and no such amendment, supplement or modification
shall change the allocation of payments between the Term Loan Facilities
pursuant to subsection 4.4 or make any change to subsection 4.4(e), in each
case without the written consent of the Majority Facility Lenders in respect
of each Term Loan Facility adversely affected thereby (it being understood
and agreed that, with the consent of the Required Lenders, additional
extensions of term loans may be included for purposes of allocation of
payments pursuant to subsection 4.4 on substantially the same basis as
either the Tranche A Term Loans or Tranche B Term Loans (as agreed by
Borrower and the Required Lenders) are treated on the Closing Date) and that
only the consent of the Credit Parties and the entities providing the Term
Loan B Facility Increase need be obtained for any such allocation of
payments in respect of the Term Loan B Facility Increase;
(e) no such waiver and no such amendment, supplement or modification
shall reduce the percentage specified in the definition of Majority Facility
Lenders without the written consent of all Lenders under each affected
Facility;
(f) no such waiver and no such amendment, supplement or modification
shall reduce the amount of, or extend the date of, any scheduled
amortization payment in respect of any Term Loan without the written consent
of all of the Lenders holding Term Loans pursuant to the respective
Facility, and all of the Lenders under the Revolving Credit Facility may
extend the Revolving Credit Termination Date (it being understood that the
consent of no other Lender or Agent need be obtained);
(g) no such waiver and no such amendment, supplement or modification
affecting the then Administrative Agent or Issuing Lender shall amend,
modify or waive any provision of Section 10 without the written consent of
such Administrative Agent or Issuing Lender, as the case may be; and
(h) without the consent of any other Agent or of any Lender, the Credit
Parties and the Administrative Agent may (in their respective sole
discretion, or shall, to the
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extent required by any Credit Document) enter into any amendment,
modification or waiver of any Credit Document, or enter into any new
agreement or instrument, to effect the granting, perfection, protection,
expansion or enhancement of any security interest in any Collateral or
additional Property to become Collateral for the benefit of the Secured
Parties, or as required by local law to give effect to, or protect any
security interest for the benefit of the Secured Parties, in any Property or
so that the security interests therein comply with applicable law.
Any such waiver and any such amendment, supplement or modification described in
this subsection 11.1 shall apply equally to each of the Lenders and shall be
binding upon each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent and the Issuing Lender and all future holders of the Notes
and the Loans. Any extension of a Letter of Credit by the Issuing Lender shall
be treated hereunder as a new Letter of Credit. In the case of any waiver, the
Credit Parties, the Lenders, the Administrative Agent and Issuing Lender shall
be restored to their former position and rights hereunder and under the
outstanding Notes, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
11.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy or telex, if one is listed), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when sent, confirmation of receipt received, or,
in the case of telex notice, when sent, answer back received, addressed as
follows in the case of Borrower or any other Credit Party, the Administrative
Agent, and as set forth in Schedule I in the case of any Lender, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
Borrower: ▇▇▇▇▇ North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇▇ & Harcourt
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent
and Swing Line Lender: Citicorp USA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
Citicorp USA, Inc.
Citibank Place
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsections 3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 shall not
be effective until received and provided, further, that the failure to provide
the copies of notices to Borrower provided for in this subsection 11.2 shall not
result in any liability to the Administrative Agent.
11.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Letters of Credit and the Notes and the
making of the extensions of credit hereunder.
11.5. Indemnification; Payment of Expenses and Taxes. (a) MCL and
Borrower jointly and severally agree to pay (i) all reasonable out-of-pocket
expenses incurred by the Agents, the Sole Lead Arranger and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Agents and the Sole Lead Arranger in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of
the Credit Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated or any such amendment, modification or waiver
becomes effective), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Lenders in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Agents, the Sole Lead Arranger
the Issuing Lenders or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Agents, the Sole Lead Arranger, the Issuing
Lenders or any Lender, in connection with the enforcement or protection of their
rights in connection with the Credit Documents, including their rights under
this subsection 11.5, or in connection with the Loans made, or Letters of Credit
issued or drawn hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations relating to any workout or
restructuring in respect of such Loans or Letters of Credit.
(b) MCL and Borrower jointly and severally agree to indemnify the
Agents, the Sole Lead Arranger, the Issuing Lender and each Lender, and each of
their Affiliates, officers, directors and controlled parties of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims,
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damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Credit Document or any other agreement or
instrument contemplated hereby by any Credit Party, the performance by any
Credit Party of its respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
an Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on, under, at or from any Real Property or any
other property or facility currently or formerly owned, leased or operated by
any Credit Party or any of its Subsidiaries, or any liability under or violation
of Environmental Laws related in any way to any Credit Party or any of its
Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitees or (v) any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Credit
Document and any such other documents.
(c) To the extent that MCL or Borrower fails to pay any amount required
to be paid by it to an Agent or an Issuing Lender under paragraph (a) or (b) of
this subsection 11.5, each Lender severally agrees to pay to such Agent or such
Issuing Lender, as the case may be, such Lender's pro rata share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against such Agent or such Issuing Lender in its
capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the aggregate amount of the total
Loans and Commitments at the time.
(d) To the extent permitted by applicable law, neither MCL nor Borrower
shall assert, and each of MCL and Borrower hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan, Letter of Credit or
the use of the proceeds thereof.
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(e) All amounts due under this subsection 11.5 shall be payable
promptly after written demand therefor.
11.6. Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of each Credit Party,
the Lenders, each Agent, all future holders of the Notes and the Loans, and
their respective successors and assigns, except that no Credit Party may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking,
lending or investment business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any participating interest in the
Letters of Credit of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender hereunder. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents. Borrower agrees that if amounts outstanding under this Agreement and
the Notes are due and unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement and any Note to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement or any Note; provided that such right of setoff
shall be subject to the obligation of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
subsection 11.7. Borrower also agrees that each Participant shall be entitled to
the benefits of subsections 3.10, 4.11 and 4.12 with respect to its
participation in the Letters of Credit and in the Commitments and the Loans
outstanding from time to time as if it were a Lender; provided that no
Participant shall be entitled to receive any greater amount pursuant to any such
subsection than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. Each Lender agrees that the
participation agreement pursuant to which any Participant acquires its
participating interest (or any other document) may afford voting rights to such
Participant, or any right to instruct such Lender with respect to voting
hereunder, only with respect to matters requiring the consent of either all of
the Lenders hereunder or all of the Lenders holding the relevant Term Loans or
Revolving Credit Commitments subject to such participation.
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(c) Subject to paragraph (g) of this subsection 11.6, any Lender may at
any time and from time to time, in accordance with applicable law,
(i) assign all or any part of its rights and obligations under this
Agreement relating to the Term Loans and the Term Notes to any Lender or any
Affiliate or Approved Fund of any Lender or the Federal Reserve Bank
pursuant to an Assignment and Acceptance executed by such Assignee and such
assigning Lender, and delivered to the Administrative Agent (for its
acceptance and recording in the Register (as defined below));
(ii) assign, with the consent of the Administrative Agent (which in
each case shall not be unreasonably withheld or delayed), all or any part of
its rights and obligations under this Agreement relating to the Revolving
Credit Loans or the Revolving Credit Commitment and the Revolving Credit
Notes to any Lender or any Affiliate thereof pursuant to an Assignment and
Acceptance executed by such Assignee and such assigning Lender and the
Administrative Agent, and delivered to the Administrative Agent for its
acceptance and recording in the Register; and
(iii) assign to one or more Eligible Assignees, all or any part of its
rights and obligations under this Agreement and the Notes pursuant to an
Assignment and Acceptance executed by such Assignee and such assigning
Lender (and, in the case of an Eligible Assignee that is not then a Lender
or an Affiliate or Approved Fund of a Lender, by Borrower (to the extent
such assignment is not in connection with assignments by Citicorp USA, Inc.
or any of its Affiliates in connection with the syndication of the Loans and
Commitments within 60 days of the date hereof and so long as no Default or
Event of Default shall have occurred and be continuing) and the
Administrative Agent), and delivered to the Administrative Agent for its
acceptance and recording in the Register.
Unless an assignment is to any Lender or any Affiliate or Approved Fund of any
Lender or the Federal Reserve Bank or unless the assigning Lender is
transferring all of its rights and obligations, each sale pursuant to clause
(iii) of this subsection 11.6(c) shall be in a principal amount of at least
$5,000,000 ($1,000,000 in the case of the Term Loan B Facility) (or such lesser
amounts as the Administrative Agent and Borrower may determine) unless the
assigning Lender is transferring all of its rights and obligations. In the event
of a sale of less than all of such rights and obligations, such Lender after any
such sale shall retain Commitments and/or Loans and/or L/C Participating
Interests aggregating at least $1,000,000 (or in such lesser amount as the
Administrative Agent and Borrower may determine). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a
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Lender hereunder with a Commitment as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent of the interest transferred, as reflected
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of the indemnification provisions set
forth in subsection 11.5).
(d) The Administrative Agent, which for purposes of this subsection
11.6(d) only shall be deemed to be the agent of Borrower, shall maintain at the
address of the Administrative Agent referred to in subsection 11.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive in the absence of
manifest error, and Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Credit Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and by Borrower and the Administrative Agent
to the extent required by paragraph (c) of this subsection 11.6), together with
payment to the Administrative Agent of a registration and processing fee of
$3,500 if the Assignee is not a Lender prior to the execution of such Assignment
and Acceptance and $1,000 otherwise, the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and Borrower (and
no such assignment shall become effective unless and until so recorded);
provided that, in the case of contemporaneous assignments by a Lender to more
than one fund managed by the same investment advisor or an Affiliate of such
investment advisor (which funds are not then Lenders hereunder), only a single
$3,500 fee shall be payable for all such contemporaneous assignments. On or
prior to such effective date, Borrower at its own expense, shall execute and
deliver to the Administrative Agent (in exchange for any or all of the Term
Notes or Revolving Credit Notes of the assigning Lender, if any (or if any Note
is lost, an affidavit of such loss and indemnity satisfactory to Borrower)) new
Term Notes or Revolving Credit Notes, as the case may be, to the order of such
Assignee (if requested) in an amount equal to the Revolving Credit Commitment or
the Term Loans, as the case may be, assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Lender has retained a Commitment or any
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Term Loans hereunder, new Term Loan Notes or Revolving Credit Notes, as the case
may be, to the order of the assigning Lender in an amount equal to the
Commitment or such Term Loans, as the case may be, retained by it hereunder (if
requested). Such new Notes shall be dated the Closing Date and shall otherwise
be in the form of the Notes replaced thereby.
(f) Each Agent and the Lenders agree that they will use reasonable
efforts to protect the confidentiality of any confidential information
concerning each Credit Party and its Subsidiaries and Affiliates. Each Credit
Party authorizes each Lender to disclose (i) to its directors, employees,
officers, Affiliates and advisors, who shall be bound by the confidentiality
provisions hereof, (ii) to any regulatory authority as required by law or to any
quasi-regulatory authority (including the National Association of Insurance
Commissioners), (iii) in connection with any enforcement or other legal action,
(iv) to any Participant or Assignee (each, a "Transferee") and any prospective
Transferee any and all information in such Lender's possession concerning any
Credit Party and its Subsidiaries which has been delivered to such Lender by or
on behalf of any Credit Party pursuant to this Agreement or which has been
delivered to such Lender by or on behalf of any Credit Party in connection with
such Lender's credit evaluation of each Credit Party and its Subsidiaries prior
to becoming a party to this Agreement; provided that each Lender shall cause its
respective prospective and actual Transferees to agree in writing to protect the
confidentiality of any confidential information concerning each Credit Party and
its Subsidiaries and Affiliates, (v) as has become generally available to the
public, (vi) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such party or to the Board of Governors of
the Federal Reserve System or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, and (vii) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation or regulatory
proceeding; provided, however, that each Credit Party acknowledges that the
Administrative Agent has disclosed and may continue to disclose such information
as the Administrative Agent in its sole discretion determines is appropriate to
the Lenders from time to time.
(g) If, pursuant to this subsection 11.6, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any State thereof,
the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the terms of this Agreement
including without limitation subsection 4.11(d).
(h) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection 11.6 concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments merely creating security interests, including, without
limitation, any pledge or assignment creating a security interest by a Lender of
any Loan or Note to any Federal Reserve Bank in accordance with ap-
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plicable law; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
11.7. Adjustments; Set-off. (a) If any relevant Lender (a "benefited
Lender") shall at any time receive any payment of all or part of any of its
Loans or L/C Participating Interests, as the case may be, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in clause (f) of Section 9, or otherwise) in a greater proportion
than any such payment to and collateral received by any other relevant Lender
(other than in accordance with subsection 4.4(e) or any other provision hereof
expressly providing for payments to be made only to an individual Lender or to
the Lenders of a particular Facility), if any, in respect of such other relevant
Lender's Loans or L/C Participating Interests, as the case may be, or interest
thereon, such benefited Lender shall purchase for cash from the other relevant
Lenders such portion of each such other relevant Lender's Loans or L/C
Participating Interests, as the case may be, or shall provide such other
relevant Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the relevant Lenders; provided that if all or any portion of such excess payment
or benefits is thereafter recovered from such benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. Each Credit Party agrees that each
Lender so purchasing a portion of another Lender's Loans and/or L/C
Participating Interests may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion. The Administrative Agent shall
promptly give Borrower notice of any set-off; provided that the failure to give
such notice shall not affect the validity of such set-off.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Credit Party,
any such notice being expressly waived by each Credit Party to the extent
permitted by applicable law, upon (i) the filing of a petition under any of the
provisions of the federal Bankruptcy Code or amendments thereto, by or against;
(ii) the making of an assignment for the benefit of creditors by; (iii) the
application for the appointment, or the appointment, of any receiver of, or of
any substantial portion of the property of; (iv) the issuance of any execution
against any substantial portion of the property of; (v) the issuance of a
subpoena or order, in supplementary proceedings, against or with respect to any
substantial portion of the property of; or (vi) the issuance of a warrant of
attachment against any substantial portion of the property of any Credit Party
to set off and apply against any indebtedness, whether matured or unmatured, of
any Credit Party to such Lender, any amount owing from such Lender to any Credit
Party, at or at any time after, the happening of any of the above mentioned
events. As security for such indebtedness, each Credit Party hereby grants to
each Lender a continuing security interest in any and all deposits,
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accounts or moneys of each Credit Party then or thereafter maintained with such
Lender, subject in each case to subsection 11.7(a) of this Agreement. The
aforesaid right of set-off may, to the extent permitted by applicable law, be
exercised by such Lender against any Credit Party or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of any Credit Party, or
against anyone else claiming through or against any Credit Party or such trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by such Lender
prior to the making, filing or issuance, or service upon such Lender of, or of
notice of, any such petition; assignment for the benefit of creditors;
appointment or application for the appointment of a receiver; or issuance of
execution, subpoena, order or warrant. Each Lender agrees promptly to notify
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided that the failure to give such notice shall not
affect the validity of such set-off and application.
11.8. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with Borrower and the Administrative Agent. This Agreement shall
become effective with respect to Borrower, the Administrative Agent and the
Lenders when the Administrative Agent shall have received copies of this
Agreement executed by the Credit Parties, the Administrative Agent and the
Lenders, or, in the case of any Lender, shall have received telephonic
confirmation from such Lender stating that such Lender has executed counterparts
of this Agreement or the signature pages hereto and sent the same to the
Administrative Agent.
11.9. Governing Law; Third Party Rights. This Agreement and the Notes
and the rights and obligations of the parties under this Agreement and the Notes
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York. This Agreement is solely for the benefit of the
parties hereto and their respective successors and assigns, and, except as set
forth in this subsection 11.9, no other Persons shall have any right, benefit,
priority or interest under, or because of the existence of, this Agreement. The
designation of any Agent by the Administrative Agent in connection with the
syndication hereof shall entitle such Agents to certain rights as third-party
beneficiaries as provided herein, without any further act by any party hereto.
11.10. Submission to Jurisdiction; Waivers. (a) Each party to this
Agreement hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any of the other Credit Documents,
or for recognition and
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enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States for the Southern District of New York, and appellate courts
from any thereof;
(ii) consents that any such action or proceeding may be brought in such
courts, and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such party
at its address set forth in subsection 11.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction.
(b) Each party hereto unconditionally waives trial by jury in any legal
action or proceeding referred to in paragraph (a) above and any counterclaim
therein.
11.11. [Reserved] .
11.12. Interest. Each provision in this Agreement and each other Credit
Document is expressly limited so that in no event whatsoever shall the amount
paid, or otherwise agreed to be paid, by Borrower for the use, forbearance or
detention of the money to be loaned under this Agreement or any other Credit
Document or otherwise (including any sums paid as required by any covenant or
obligation contained herein or in any other Credit Document which is for the
use, forbearance or detention of such money), exceed that amount of money which
would cause the effective rate of interest to exceed the highest lawful rate
permitted by applicable law (the "Highest Lawful Rate"), and all amounts owed
under this Agreement and each other Credit Document shall be held to be subject
to reduction to the effect that such amounts so paid or agreed to be paid which
are for the use, forbearance or detention of money under this Agreement or such
other Credit Document shall in no event exceed that amount of money which would
cause the effective rate of interest to exceed the Highest Lawful Rate.
Notwithstanding any provision in this Agreement or any other Credit Document to
the contrary, if the maturity of the Loans or the obligations in respect of the
other Credit Documents are accelerated for any reason, or in the event of any
prepayment of all or any portion of the Loans or the obligations in respect of
the other Credit Documents by Borrower or in any other event, earned interest on
the Loans and such other obligations of Borrower may never exceed the Highest
Lawful Rate, and any unearned interest otherwise payable on the
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Loans or the obligations in respect of the other Credit Documents that is in
excess of the Highest Lawful Rate shall be canceled automatically as of the date
of such acceleration or prepayment or other such event and (if theretofore paid)
shall, at the option of the holder of the Loans or such other obligations, be
either refunded to Borrower or credited on the principal of the Loans. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, Borrower and the Lenders shall, to
the maximum extent permitted by applicable law, amortize, prorate, allocate and
spread, in equal parts during the period of the actual term of this Agreement,
all interest at any time contracted for, charged, received or reserved in
connection with this Agreement.
11.13. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.14. Integration. This Agreement and the other Credit Documents (and
those provisions of the commitment letter dated July 1, 2002 among Borrower,
MCL, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and Citicorp USA, Inc. that expressly by their
terms survive the execution and delivery of this Agreement) represent the entire
agreement of the Credit Parties, the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof and thereof not expressly set forth
or referred to herein or in the other Credit Documents.
11.15. Acknowledgments. Each Credit Party hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Credit Party arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between the Administrative Agent and the Lenders, on one hand,
and each Credit Party, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among any Credit Party and the Lenders.
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SECTION 12. COLLATERAL ACCOUNT; APPLICATION OF COLLATERAL PROCEEDS
12.1. Collateral Account. (a) The Administrative Agent is hereby
authorized to establish and maintain at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, in the name of the Administrative Agent and pursuant to a
Control Agreement, a restricted deposit account designated "▇▇▇▇▇ North America,
Inc. -- Collateral Account" with respect to which the Administrative Agent shall
at all times have "control" (as defined in Section 9-104 of the UCC). Each
Credit Party shall deposit into the Collateral Account from time to time;
provided that there shall be no obligation to deposit any such net proceeds
unless and until, and only to the extent that, the aggregate amount at any time
outstanding (and not applied in accordance with this Agreement) exceeds
$15,000,000 (such $15,000,000 to be calculated net of the amount to be
reinvested under any then existing binding contract entered into by MCL or any
of its Subsidiaries to reinvest such net proceeds), (A) the cash proceeds of any
of the Collateral (including pursuant to any disposition thereof) to the extent
contemplated herein or in any other Credit Document, (B) the cash proceeds of
any Taking or Destruction with respect to Collateral, (C) any cash in respect of
any Collateral to which the Collateral Agent is entitled pursuant to the Credit
Documents, and (D) any cash such Credit Party is required to pledge as
additional collateral security hereunder pursuant to the Credit Documents.
(b) The balance from time to time in the Collateral Account shall
constitute part of the Collateral and shall not constitute payment of the
Obligations until applied as hereinafter provided. So long as no Event of
Default has occurred and is continuing or will result therefrom, the
Administrative Agent shall within two Business Days of receiving a request of
the applicable Credit Party for release of cash proceeds constituting (A) net
insurance proceeds or net awards from the Collateral Account remit such cash
proceeds on deposit in the Collateral Account to or upon the order of such
Credit Party, so long as such Credit Party has satisfied the conditions relating
thereto set forth in subsection 12.2, (B) net cash proceeds from any sale or
other disposition of Collateral from the Collateral Account, remit such cash
proceeds on deposit in the Collateral Account, so long as such Credit Party has
satisfied the conditions relating thereto set forth in subsection 12.2 and (C)
with respect to the L/C Sub-Account at such time as all Letters of Credit shall
have been terminated and all of the liabilities in respect of the Letters of
Credit have been paid in full. At any time following the occurrence and during
the continuance of an Event of Default, the Administrative Agent may (and, if
instructed by the Lenders as specified herein, shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of the Collateral Account to the payment
of the Obligations in the manner specified in subsection 12.3 hereof subject,
however, in the case of amounts deposited in the L/C Sub-Account, to the
provisions of subsection 12.1(d). The Credit Parties shall have no right to
withdraw, transfer or otherwise receive any fund deposited in the Collateral
Account except to the extent specifically provided herein.
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(c) Amounts on deposit in the Collateral Account shall be invested from
time to time in Cash Equivalents as the applicable Credit Party (or, after the
occurrence and during the continuance of an Event of Default, the Administrative
Agent) shall determine, which Cash Equivalents shall be held in the name and be
under the control of the Administrative Agent (or any sub-agent); provided that
at any time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent may (and, if instructed by the Lenders as
specified herein, shall) in its (or their) discretion at any time and from time
to time elect to liquidate any such Cash Equivalents and to apply or cause to be
applied the proceeds thereof to the payment of the Obligations in the manner
specified in subsection 12.3 hereof.
(d) Amounts deposited into the Collateral Account as cover for
liabilities in respect of Letters of Credit under any provision of this
Agreement requiring such cover shall be held by the Administrative Agent in a
separate sub-account designated as the "L/C Sub-Account" (the "L/C Sub-Account")
and, notwithstanding any other provision hereof to the contrary, all amounts
held in the L/C Sub-Account shall constitute collateral security first for the
liabilities in respect of Letters of Credit outstanding from time to time and
second as collateral security for the other Obligations hereunder until such
time as all Letters of Credit shall have been terminated and all of the
liabilities in respect of Letters of Credit have been paid in full.
12.2. Proceeds of Destruction, Taking and Collateral Dispositions. (a)
So long as no Event of Default shall have occurred and be continuing, in the
event there shall be any net award in respect of any Taking or net insurance
proceeds in respect of any Destruction or net cash proceeds from any sale or
disposition of Collateral of the type contemplated in subsection 8.5(h), the
applicable Credit Party shall have the right, at such Credit Party's option, to
apply such net award or net insurance proceeds within 270 days from the date of
the applicable Destruction or Taking (or, in the case of such disposition, to
apply such net cash proceeds within 270 days from the date of such disposition)
to reinvest in properties or assets owned (or to be owned) by Borrower or a
wholly owned Subsidiary of Borrower having a fair market value at least equal to
the amount of such net insurance proceeds or net awards or net cash proceeds, as
the case may be, in accordance with the applicable provisions of this Agreement.
In the event such Credit Party elects so to reinvest such net insurance proceeds
or net awards or net cash proceeds, as the case may be, such Credit Party shall
deliver to the Administrative Agent (A) a written notice of such election and
(B) an Officers' Certificate stating that (1) the net insurance proceeds or net
awards, as the case may be, shall be utilized so to reinvest in Collateral in
the manner contemplated by the proviso set forth in clause (b) of the definition
of Net Proceeds, or the net cash proceeds shall be utilized so to reinvest in
Collateral in the manner contemplated by the proviso set forth in subsection
8.5(h), as the case may be, and (2) no Event of Default has occurred and is
continuing (the items described in clauses (1) and (2) of this sentence,
collectively, the "Investment Election Notice"). Upon receipt of an Investment
Election Notice, the Administrative Agent shall release such net insurance
pro-
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ceeds or net awards or net cash proceeds to such Credit Party in accordance with
the provisions of subsection 12.1(b) hereof.
12.3. Application of Proceeds. The proceeds received by the
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Collateral pursuant to the exercise by
the Administrative Agent of its remedies shall be applied, together with any
other sums then held by the Administrative Agent pursuant to this Agreement,
promptly by the Administrative Agent as follows:
FIRST, to the payment of all reasonable costs and expenses, fees,
commissions and taxes of such sale, collection or other realization
including, without limitation, compensation to the Administrative Agent and
its agents and counsel, and all expenses, liabilities and advances made or
incurred by the Administrative Agent in connection therewith, together with
interest on each such amount at the highest rate then in effect under this
Agreement from and after the date such amount is due, owing or unpaid until
paid in full;
SECOND, to the payment of all other reasonable costs and expenses of
such sale, collection or other realization including, without limitation,
compensation to the other Secured Parties and their agents and counsel and
all costs, liabilities and advances made or incurred by the other Secured
Parties in connection therewith, together with interest on each such amount
at the highest rate then in effect under this Agreement from and after the
date such amount is due, owing or unpaid until paid in full;
THIRD, without duplication of amounts applied pursuant to clauses FIRST
and SECOND above, to the indefeasible payment in full in cash, pro rata, of
(i) interest, principal and other amounts constituting Obligations (other
than the obligations arising under the Interest Rate Agreements) in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing and (ii) the obligations arising under the Interest Rate
Agreements in accordance with the terms of the Interest Rate Agreements; and
FOURTH, the balance, if any, to the Person lawfully entitled thereto
(including the applicable Credit Party or its successors or assigns).
In the event that any such proceeds are insufficient to pay in full the
items described in clauses FIRST through THIRD of this subsection 12.3, the
Credit Parties shall remain liable for any deficiency.
[This space intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
▇▇▇▇▇ NORTH AMERICA, INC.,
as Borrower
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
▇▇▇▇▇ CORPORATION LIMITED,
as Parent Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
▇▇▇▇▇ HOLDINGS U.S.A.,
as Parent Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
THE ▇▇▇▇▇▇▇ COMPANY,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
S-2
LITHO INDUSTRIES, INC.,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
FRDK, INC.,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
PEAK TECHNOLOGIES, INC.,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Treasurer
MH HOLDINGS LIMITED,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
QUALITY COLOR PRESS, INC.,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
S-3
▇▇▇▇▇ GROUP SERVICES bvba,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ BUSINESS FORMS HOLDING UK LIMITED,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ INTERNATIONAL BV,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ DE MEXICO HOLDINGS, SA DE CV.,
as Subsidiary Guarantor
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇▇ BRASIL LTDA.,
as Subsidiary Guarantor
By: Francisco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: Francisco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
S-4
CITICORP USA, INC.,
as Administrative Agent
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
S-5
CITIBANK, N.A.,
as Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
LASALLE BANK, N.A.,
as Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
FLEET NATIONAL BANK,
as Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
COMERICA BANK,
as Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
International Finance
BANK OF NOVA SCOTIA (ATLANTA AGENCY),
as Lender
By: W.E. Zarrett
------------------------------------------
Name: W.E. Zarrett
Title: Managing Director
CIBC INC.,
as Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
SCHEDULE II
PRICING GRID
APPLICABLE MARGIN APPLICABLE MARGIN
FOR EURODOLLAR LOANS FOR ALTERNATE BASE RATE LOANS
------------------------------------------ ----------------------------------------------
Leverage Tranche A Revolving Tranche A Revolving
Ratio Term Loans Credit Loans Term Loans Credit Loans
----------------------- ------------------ ----------------------- --------------------- ------------------------
=>2.5 to 1.00 2.50% 2.50% 1.50% 1.50%
<2.5 to 1.00 2.25% 2.25% 1.25% 1.25%
but =>2.0 to 1.00
<2.0 to 1.00 2.00% 2.00% 1.00% 1.00%
but =>1.5 to 1.00
<1.5 to 1.00 1.75% 1.75% .75% .75%
but =>1.0
<1.0 to 1.00 1.50% 1.50% .50% .50%
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