EXHIBIT 10.2
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AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 23, 2003
BY AND AMONG
SPORTRACK, LLC,
VALLEY INDUSTRIES, LLC, AND
BRINK B.V.,
AS BORROWERS
AND
THE OTHER PERSONS PARTY HERETO THAT
ARE DESIGNATED AS CREDIT PARTIES
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT AND A LENDER
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
AS LENDERS
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TABLE OF CONTENTS
PAGE
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SECTION 1 AMOUNTS AND TERMS OF LOANS...........................................................................4
Section 1.1 Loans....................................................................................4
Section 1.2 Interest and Applicable Margins.........................................................18
Section 1.3 Fees....................................................................................20
Section 1.4 Payments................................................................................23
Section 1.5 Prepayments.............................................................................24
Section 1.6 Maturity................................................................................28
Section 1.7 Loan Account............................................................................28
Section 1.8 Yield Protection; Illegality............................................................29
Section 1.9 Taxes...................................................................................30
Section 1.10 Borrower Representative.................................................................32
Section 1.11 European Lender Qualification...........................................................32
SECTION 2 AFFIRMATIVE COVENANTS...............................................................................33
Section 2.1 Compliance With Laws and Contractual Obligations........................................33
Section 2.2 Maintenance of Properties; Insurance....................................................34
Section 2.3 Inspection; Lender Meeting..............................................................35
Section 2.4 Organizational Existence................................................................35
Section 2.5 Environmental Matters...................................................................35
Section 2.6 Landlords' Agreements, Mortgagee Agreements and Bailee Letters..........................36
Section 2.7 Further Assurances......................................................................37
Section 2.8 Intentionally Reserved..................................................................38
Section 2.9 European Mergers........................................................................38
Section 2.10 Intellectual Property Cross License.....................................................39
SECTION 3 NEGATIVE COVENANTS..................................................................................39
Section 3.1 Indebtedness............................................................................39
Section 3.2 Liens and Related Matters...............................................................43
Section 3.3 Investments.............................................................................45
Section 3.4 Contingent Obligations..................................................................46
Section 3.5 Restricted Payments.....................................................................47
Section 3.6 Restriction on Fundamental Changes......................................................51
Section 3.7 Disposal of Assets or Subsidiary Stock..................................................55
Section 3.8 Transactions with Affiliates............................................................56
Section 3.9 Conduct of Business.....................................................................56
Section 3.10 Changes Relating to Indebtedness; Etc...................................................56
Section 3.11 Fiscal Year.............................................................................57
Section 3.12 Press Release; Public Offering Materials................................................57
Section 3.13 Subsidiaries............................................................................58
Section 3.14 Bank Accounts...........................................................................58
Section 3.15 Hazardous Materials.....................................................................58
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Section 3.16 ERISA/Canadian Pension Plan.............................................................59
Section 3.17 Sale-Leasebacks.........................................................................59
Section 3.18 Prepayments of Other Indebtedness.......................................................59
Section 3.19 ▇▇▇▇▇ Litigation........................................................................60
SECTION 4 FINANCIAL COVENANTS/REPORTING.......................................................................60
Section 4.1 Intentionally Reserved..................................................................60
Section 4.2 Intentionally Reserved..................................................................60
Section 4.3 Intentionally Reserved..................................................................60
Section 4.4 Minimum Fixed Charge Coverage Ratio.....................................................60
Section 4.5 Intentionally Reserved..................................................................60
Section 4.6 Intentionally Reserved..................................................................60
Section 4.7 Maximum Senior Secured Leverage Ratio...................................................60
Section 4.8 Financial Statements and Other Reports..................................................60
Section 4.9 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement......65
SECTION 5 REPRESENTATIONS AND WARRANTIES......................................................................65
Section 5.1 Disclosure..............................................................................66
Section 5.2 No Material Adverse Change..............................................................66
Section 5.3 No Conflict.............................................................................66
Section 5.4 Organization, Powers, Capitalization and Good Standing..................................66
Section 5.5 Financial Statements and Projections....................................................67
Section 5.6 Intellectual Property...................................................................68
Section 5.7 Investigations, Audits, Etc.............................................................68
Section 5.8 Employee Matters........................................................................68
Section 5.9 Solvency................................................................................69
Section 5.10 Litigation; Adverse Facts...............................................................69
Section 5.11 Use of Proceeds; Margin Regulations.....................................................69
Section 5.12 Ownership of Property; Liens............................................................70
Section 5.13 Environmental Matters...................................................................70
Section 5.14 ERISA/Similar Non-US Issues.............................................................71
Section 5.15 Brokers.................................................................................72
Section 5.16 Deposit and Disbursement Accounts.......................................................72
Section 5.17 Agreements and Other Documents..........................................................73
Section 5.18 Insurance...............................................................................73
Section 5.19 Acquisition Agreement...................................................................73
Section 5.20 European Mergers........................................................................74
SECTION 6 DEFAULT, RIGHTS AND REMEDIES........................................................................74
Section 6.1 Event of Default........................................................................74
Section 6.2 Suspension or Termination of Commitments................................................78
Section 6.3 Acceleration and other Remedies.........................................................78
Section 6.4 Performance by Agent....................................................................79
Section 6.5 Application of Proceeds/Lender Risk Allocation Agreement................................80
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SECTION 7 CONDITIONS TO LOANS.................................................................................81
Section 7.1 Conditions to Initial Loans.............................................................81
Section 7.2 Conditions to All Loans.................................................................81
SECTION 8 ASSIGNMENT AND PARTICIPATION/AGENCY PROVISIONS......................................................82
Section 8.1 Assignment and Participations...........................................................82
Section 8.2 Agent...................................................................................85
Section 8.3 Set Off and Sharing of Payments.........................................................91
Section 8.4 Disbursement of Funds...................................................................92
Section 8.5 Disbursements of Advances; Payment......................................................92
Section 8.6 Parallel European Debt..................................................................94
SECTION 9 MISCELLANEOUS.......................................................................................97
Section 9.1 Indemnities.............................................................................97
Section 9.2 Amendments and Waivers..................................................................98
Section 9.3 Notices.................................................................................99
Section 9.4 Failure or Indulgence Not Waiver; Remedies Cumulative..................................100
Section 9.5 Marshaling; Payments Set Aside.........................................................100
Section 9.6 Severability...........................................................................101
Section 9.7 Lenders' Obligations Several; Independent Nature of Lenders' Rights....................101
Section 9.8 Headings...............................................................................101
Section 9.9 Applicable Law.........................................................................101
Section 9.10 Successors and Assigns.................................................................101
Section 9.11 No Fiduciary Relationship; Limited Liability...........................................102
Section 9.12 Construction...........................................................................102
Section 9.13 Confidentiality........................................................................102
Section 9.14 CONSENT TO JURISDICTION................................................................102
Section 9.15 WAIVER OF JURY TRIAL...................................................................103
Section 9.16 Survival of Warranties and Certain Agreements..........................................103
Section 9.17 Entire Agreement.......................................................................103
Section 9.18 Counterparts; Effectiveness............................................................104
Section 9.19 Replacement of Lenders.................................................................104
Section 9.20 Delivery of Termination Statements and Mortgage Releases...............................106
Section 9.21 Intentionally Reserved.................................................................106
Section 9.22 Joint and Several Obligations regarding Canada.........................................106
Section 9.23 European/Quebec Financial Assistance Limitation........................................106
Section 9.24 Reaffirmation of Original Loan Documents...............................................107
SECTION 10 US BORROWER CROSS-GUARANTY........................................................................107
Section 10.1 US Borrower Cross-Guaranty.............................................................107
Section 10.2 Waivers by US Borrowers................................................................108
Section 10.3 Benefit of Guaranty....................................................................108
Section 10.4 Waiver of Subrogation, Etc.............................................................108
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Section 10.5 Election of Remedies...................................................................109
Section 10.6 Limitation.............................................................................109
Section 10.7 Contribution with Respect to Guaranty Obligations......................................110
Section 10.8 Liability Cumulative...................................................................110
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INDEX OF APPENDICES
ANNEXES
Annex A - Definitions
Annex B - Commitment Amounts
Annex C - Closing Checklist
Annex D - Pro Forma
Annex E - Lenders' Bank Accounts
EXHIBITS
Exhibit 1.1(b) - European Term Note
Exhibit 1.1(c)(i) - US Revolving Note
Exhibit 1.1(c)(ii) - Notice of US Revolving Credit Advance
Exhibit 1.1(d)(i) - European Revolving Note
Exhibit 1.1(d)(ii) - Notice of European Revolving Credit Advance
Exhibit 1.2(f) - Notice of Continuation/Conversion
Exhibit 4.8(d)(i) - US Borrowing Base Certificate
Exhibit 4.8(d)(ii) - European Borrowing Base Certificate
Exhibit 4.8(n) - Compliance Certificate
Exhibit 8.1 - Assignment Agreement
Exhibit A - Lender Risk Allocation Agreement
SCHEDULES
Schedule 3.1 - Indebtedness
Schedule 3.2 - Permitted Encumbrances
Schedule 3.3 - Investments
Schedule 3.4 - Contingent Obligations
Schedule 3.8 - Affiliate Transactions
Schedule 3.9 - Business Description
Schedule 3.17 - Sale-Leasebacks
Schedule 5.4(a) - Jurisdictions of Organization and Qualifications
Schedule 5.4(b) - Capitalization
Schedule 5.6 - Intellectual Property
Schedule 5.7 - Investigations and Audits
Schedule 5.8 - Employee Matters
Schedule 5.10 - Litigation
Schedule 5.11 - Use of Proceeds
Schedule 5.12 - Real Estate
Schedule 5.13 - Environmental Matters
Schedule 5.14 - ERISA
Schedule 5.16 - Deposit and Disbursement Accounts
Schedule 5.17 - Agreements and Other Documents
Schedule 5.18 - Insurance
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EXHIBIT 10.2
AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED
CREDIT AGREEMENT is dated as of May 23, 2003
and entered into by and among SportRack, LLC, a Delaware limited liability
company ("SPORTRACK US BORROWER"), Valley Industries, LLC, a Delaware limited
liability company ("VALLEY US BORROWER") (SportRack US Borrower and Valley US
Borrower are sometimes referred to herein as the "US BORROWERS" and individually
as a "US BORROWER"), and Brink B.V., a private company with limited liability
(BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID) incorporated under the
laws of The Netherlands, having its corporate seat (STATUTAIRE ZETEL) in
Staphorst, The Netherlands and registered with the Chamber of Commerce (▇▇▇▇▇
VAN KOOPHANDEL) in Regio Zwolle under number 05041971 ("EUROPEAN BORROWER") (US
Borrowers and European Borrower are sometimes referred to herein as the
"BORROWERS" and individually as a "BORROWER"), the other persons designated as
"CREDIT PARTIES" on the signature pages hereof, the financial institutions who
are or hereafter become parties to this Agreement as Lenders, and GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation (in its individual capacity
"GE Capital"), as a Lender and as Agent.
R E C I T A L S:
WHEREAS, Borrowers, the other Credit Parties, Agent, and (pursuant, in
part, to various Assignments and Acceptances, each dated as of the date hereof,
and each effective immediately prior to the effectiveness of this Agreement,
among GE Capital and each of the other Lenders party to the Original
Credit
Agreement, as hereinafter defined, on the date hereof immediately prior to the
effectiveness of such Assignments and Acceptances) GE Capital, as sole "Lender",
are each party to that certain
Credit Agreement dated as of April 15, 2003 (the
"ORIGINAL
CREDIT AGREEMENT") and the Loan Documents (as defined in the Original
Credit Agreement, the "ORIGINAL LOAN DOCUMENTS"), pursuant to which the
"Lenders" thereunder have made (i) a US term loan A (the "ORIGINAL US TERM LOAN
A") evidenced by various promissory notes (the "ORIGINAL US TERM LOAN A NOTES"),
(ii) a US term loan B (the "ORIGINAL US TERM LOAN B") evidenced by various
promissory notes (the "ORIGINAL US TERM LOAN B NOTES"), (iii) US revolving loans
(the "ORIGINAL US REVOLVING LOANS") evidenced by various promissory notes (the
"ORIGINAL US REVOLVING NOTES"), (iv) a European term loan A (the "ORIGINAL
EUROPEAN TERM LOAN A") evidenced by various promissory notes (the "ORIGINAL
EUROPEAN TERM LOAN A NOTES"), (v) a European term loan B (the "ORIGINAL EUROPEAN
TERM LOAN B") evidenced by various promissory notes (the "ORIGINAL EUROPEAN TERM
LOAN B NOTES"), and (vi) European revolving loans (the "ORIGINAL EUROPEAN
REVOLVING LOANS"; and together with the Original US Term Loan A, the Original US
Term Loan B, the Original US Revolving Loans, the Original European Term Loan A
and the Original European Term Loan B, the "ORIGINAL LOANS") evidenced by
various promissory notes (the "ORIGINAL EUROPEAN REVOLVING NOTES", and together
with the Original US Term Loan A Notes, the Original US Term Loan B Notes, the
Original US Revolving Notes, the Original European Term Loan A Notes and the
Original European Term Loan B Notes, the "ORIGINAL NOTES"); and
Annex A
Page 1
WHEREAS, in order to secure (i) all Obligations under and as defined
in the Original
Credit Agreement, each US Credit Party (as hereinafter defined)
has pledged and has granted to Agent a security interest in and lien upon
substantially all of its personal and real property (together with all other
collateral provided by the US Credit Parties under the Original Loan Documents,
the "ORIGINAL US COLLATERAL") and (ii) all European Obligations under and as
defined in the Original
Credit Agreement, each Non-US Credit Party (as
hereinafter defined) has pledged and has granted to Agent a security interest in
and lien upon certain of its personal and real property (together with all other
collateral provided by the Non-US Credit Parties under the Original Loan
Documents, the "ORIGINAL EUROPEAN COLLATERAL"); and
WHEREAS, Borrowers, the other Credit Parties, Lenders and Agent wish
to amend and restate the Original
Credit Agreement subject to the terms and
conditions set forth herein; and
WHEREAS, Borrower, the other Credit Parties, Lenders and Agent intend
that (i) the Obligations and European Obligations (each as defined under the
Original Credit Agreement) shall continue to exist under, and to be evidenced
by, this Agreement and the Notes (as hereinafter defined) issued hereunder, (ii)
the Original Loans shall be Loans under and as defined in this Agreement and the
Notes, (iii) the Original US Collateral shall secure the Obligations (as
hereinafter defined) and (iv) the Original European Collateral shall secure the
European Obligations (as hereinafter defined); and
WHEREAS, Borrowers desire that Lenders continue to extend a US
revolving credit facility, a European term credit facility and a European
revolving credit facility to Borrowers to fund the repayment of certain
indebtedness of Borrowers, to provide working capital financing for Borrowers
and their Subsidiaries and to provide funds for other general corporate purposes
of Borrowers and their Subsidiaries; and
WHEREAS, US Borrowers desire to secure all of the Obligations under
the Loan Documents (as hereinafter defined) by continuing to grant to Agent, for
the benefit of Agent and Lenders, a security interest in and lien upon
substantially all of their personal and real property; and
WHEREAS, European Borrower desires to secure all of the European
Obligations by continuing to grant to Agent, for the benefit of Agent and
Lenders, a security interest in and lien upon substantially all of its personal
and real property; and
WHEREAS, CHAAS Holdings, LLC, f/k/a CHAAS Acquisitions, LLC, a
Delaware limited liability company ("ULTIMATE Holdings") that owns all of the
Stock (as hereinafter defined) of Holdings (as hereinafter defined), is willing
to continue to guaranty all of the Obligations and to pledge to Agent, for the
benefit of Agent and Lenders, all of the Stock of Holdings to secure the
Obligations; and
WHEREAS, CHAAS Acquisitions, LLC, a Delaware limited liability company
("HOLDINGS") that owns all of the Stock of US SportRack Holdings (as hereinafter
Annex A
Page 2
defined), Valley US Borrower and European US Holdings (as hereinafter defined),
is willing to guaranty all of the Obligations and to pledge to Agent, for the
benefit of Agent and Lenders, all of the Stock of US SportRack Holdings, Valley
US Borrower and European US Holdings to secure the Obligations; and
WHEREAS, Advanced Accessory Systems, LLC, a Delaware limited liability
company ("US SPORTRACK HOLDINGS"), that owns all of the Stock of SportRack US
Borrower, is willing to continue to guaranty all of the Obligations and to
pledge to Agent, for the benefit of Agent and Lenders, all of the Stock of
SportRack US Borrower to secure the Obligations; and
WHEREAS, AAS Acquisitions, LLC, a Delaware limited liability company
("EUROPEAN US HOLDINGS"), that owns all of the Stock of European First Tier
Dutch Holdings (as hereinafter defined), is willing to continue to guaranty all
of the Obligations and to pledge to Agent, for the benefit of Agent and Lenders,
(i) all of the Stock of European First Tier Dutch Holdings to secure the
European Obligations and (ii) 65% of the Stock of European First Tier Dutch
Holdings to secure the Obligations; and
WHEREAS, CHAAS Holdings B.V., a private company with limited liability
(BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID) incorporated under the
laws of The Netherlands, having its corporate seat (STATUTAIRE ZETEL) in
Staphorst, The Netherlands and registered with the Chamber of Commerce (▇▇▇▇▇
VAN KOOPHANDEL) in Regio Zwolle under number 05072494 ("EUROPEAN FIRST TIER
DUTCH HOLDINGS"), that owns all of the Stock of European Second Tier Dutch
Holdings (as hereinafter defined), is willing to continue to guaranty all of the
European Obligations and to pledge to Agent, for the benefit of Agent and
Lenders all of the Stock of European Second Tier Dutch Holdings (as hereinafter
defined) to secure the European Obligations; and
WHEREAS, Brink International B.V., a private company with limited
liability (BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID) incorporated
under the laws of The Netherlands, having its corporate seat (STATUTAIRE ZETEL)
in Staphorst, The Netherlands and registered with the Chamber of Commerce (▇▇▇▇▇
VAN KOOPHANDEL) in Regio Zwolle under number 05058752 ("EUROPEAN SECOND TIER
DUTCH HOLDINGS"), that owns all of the Stock of European Borrower, is willing to
continue to guaranty all of the European Obligations and to pledge to Agent, for
the benefit of Agent and Lenders all of the Stock of European Borrower to secure
the European Obligations; and
WHEREAS, (i) each direct and indirect US Subsidiary (as hereinafter
defined) of each Borrower is willing to continue to guaranty all of the
Obligations and to grant to Agent, for the benefit of Agent and Lenders, a
security interest in and lien upon substantially all of its personal and real
property to secure the Obligations, (ii) each direct and indirect Non-US
Subsidiary (as hereinafter defined) of each Borrower and of European Second Tier
Dutch Holdings is, to the extent permitted by law, willing to continue to
guaranty all of the European Obligations, (iii) certain direct and indirect
Non-US Subsidiaries of each Borrower and of European Second Tier Dutch Holdings
are, to the extent permitted by law, willing to continue to grant to Agent, for
the benefit of Agent and Lenders, a security interest in and a
Annex A
Page 3
lien upon certain of their personal and real property to secure the European
Obligations, (iv) the Stockholders (as hereinafter defined) of each direct and
indirect US Subsidiary of each Borrower are willing to pledge to Agent, for the
benefit of Agent and Lenders, all of the Stock of such US Subsidiaries to secure
the Obligations, and (v) the Stockholders of each direct and indirect Non-US
Subsidiary of each Borrower and of European Second Tier Dutch Holdings are, to
the extent permitted by law, willing to continue to pledge to Agent, for the
benefit of Agent and Lenders, (x) all of the Stock of such Non-US Subsidiaries
to secure the European Obligations and (y) to the extent such Stockholder is a
US Credit Party, 65% of the Stock of such Non-US Subsidiaries to secure the
Obligations; and
WHEREAS, all capitalized terms herein shall have the meanings ascribed
thereto in ANNEX A hereto which is incorporated herein by reference.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Credit Parties, Lenders
and Agent agree that the Original Credit Agreement shall be amended and restated
as follows:
SECTION 1
AMOUNTS AND TERMS OF LOANS
Section 1.1 LOANS.
Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Borrowers and the other Credit
Parties contained herein:
(a) INTENTIONALLY RESERVED.
(b) EUROPEAN TERM LOAN. As of the date hereof, the outstanding
principal balance of (i) the Original European Term Loan A is 9,596,938.20 Euros
and (ii) the Original European Term Loan B is 15,595,024.57 Euros (collectively,
the "OUTSTANDING ORIGINAL EUROPEAN TERM LOAN BALANCE"). On the Closing Date,
10,000,000 Euros of the Outstanding Original European Term Loan Balance shall be
continued and shall convert automatically, for all purposes of this Agreement to
"EUROPEAN TERM LOAN" hereunder owing to the European Term Lenders as if such
European Term Loans had been made by the European Term Lenders to the European
Borrower hereunder on the Closing Date ratably in accordance with their
respective Pro Rata Shares. The remaining amount of the Original European Term
Loan Balance shall be permanently repaid by European Borrower on the Closing
Date. Additionally, the full outstanding principal amount of the Original US
Term Loan A and the Original US Term Loan B shall be permanently repaid by US
Borrowers on the Closing Date.
European Borrower shall repay the European Term Loan through periodic
payments on the dates and in the amounts (as such amounts may reduced in
accordance with SECTION 1.5(e)) indicated below ("SCHEDULED INSTALLMENTS"). The
European Term Loan shall be advanced, denominated, and repayable in Euros.
Annex A
Page 4
EUROPEAN TERM LOAN
DATE SCHEDULED INSTALLMENT
September 30, 2003 EURO 250,000
December 31, 2003 EURO 250,000
March 31, 2004 EURO 250,000
June 30, 2004 EURO 250,000
September 30, 2004 EURO 250,000
December 31, 2004 EURO 250,000
March 31, 2005 EURO 250,000
June 30, 2005 EURO 500,000
September 30, 2005 EURO 500,000
December 31, 2005 EURO 500,000
March 31, 2006 EURO 500,000
June 30, 2006 EURO 750,000
September 30, 2006 EURO 750,000
December 31, 2006 EURO 750,000
March 31, 2007 EURO 750,000
June 30, 2007 EURO 750,000
September 30, 2007 EURO 750,000
December 31, 2007 EURO 750,000
March 31, 2008 EURO 1,000,000
The final installment shall in all events equal the entire remaining
principal balance of the European Term Loan. Notwithstanding the foregoing, if
earlier than the dates set forth above, the outstanding principal balance of the
European Term Loan shall be due and payable in full on the European Commitment
Termination Date (it being understood that the European Commitment Termination
Date may be extended in accordance with the terms and conditions of this
Agreement). Amounts borrowed under this SECTION 1.1(b) and repaid may not be
reborrowed.
The European Term Loan shall be evidenced by promissory notes
substantially in the form of EXHIBIT 1.1(b) (each a "EUROPEAN TERM NOTE" and,
collectively, the "EUROPEAN TERM NOTES"), and, except as provided in SECTION
1.7, the European Borrower shall execute and deliver each European Term Note to
the applicable European Term Lender. Each European Term Note shall represent the
obligation of European Borrower to pay the amount of the applicable European
Term Lender's European Term Loan Commitment, together with interest thereon. No
European Term Note shall be in a face principal amount of less than 50,000
Euros.
The aggregate principal amount of the European Term Loan advanced to
European Borrower shall be the primary obligation of European Borrower (but
shall also be guaranteed by all other Borrowers pursuant to SECTION 10).
(c) US REVOLVING LOANS.
Annex A
Page 5
(i) As of the date hereof, the outstanding principal balance of
the Original US Revolving Loan is $14,365,870.46 (the "OUTSTANDING ORIGINAL
US REVOLVING LOAN BALANCE"). On the Closing Date, shall be continued and
shall convert automatically, for all purposes of this Agreement to
outstanding US Revolving Credit Advances hereunder owing to the US
Revolving Lenders as if such US Revolving Credit Advances had been made by
the such Lenders to the US Borrowers hereunder on the Closing Date ratably
in accordance with their respective Pro Rata Shares. Each US Revolving
Lender agrees, severally and not jointly, to make available to US Borrowers
from time to time until the US Commitment Termination Date such US
Revolving Lender's Pro Rata Share of advances (each a "US REVOLVING CREDIT
ADVANCE") requested by Borrower Representative on behalf of the US
Borrowers hereunder. The Pro Rata Share of the US Revolving Loan of any US
Revolving Lender shall not at any time exceed its separate US Revolving
Loan Commitment. US Revolving Credit Advances may be repaid and reborrowed;
provided, that the amount of any US Revolving Credit Advance to be made at
any time shall not exceed US Borrowing Availability. All US Revolving Loans
shall be advanced, denominated, and repayable in US Dollars.
Notwithstanding the foregoing, upon the request of US Borrower
Representative set forth in a Notice of US Revolving Credit Advance, up to
US$5,000,000 in the aggregate of US Revolving Advances will be advanced to
the applicable US Borrower in Euros (based on the then Exchange Rate)
instead of US Dollars; provided, however, that (i) each such US Revolving
Credit Advance will still be accounted for as if such US Revolving Credit
Advances were made in US Dollars on the date such US Revolving Credit
Advance was made and shall still be repayable in US Dollars and (ii) US
Borrowers shall reimburse Agent for any currency conversion costs incurred
by Agent at the time of making such US Revolving Credit Advance as a result
of receiving funds from the US Revolving Lenders with respect to such US
Revolving Credit Advance in US Dollars and having to convert such US
Dollars into Euros at the time of making such US Revolving Credit Advance
(to the extent that a US Revolving Lender as part of its normal operations
regularly funds loans in Euros and providing funds in Euros to Agent for
the purpose of this sentence is not disadvantageous to such US Revolving
Lender, such US Revolving Lender will provide such funds to Agent in Euros
so that no conversion cost is necessary). All US Revolving Loans shall be
repaid in full on the US Commitment Termination Date. Each US Borrower
shall execute and deliver to each US Revolving Lender a note to evidence
the US Revolving Loan Commitment of that US Revolving Lender. Each note
shall be in the principal amount of the US Revolving Loan Commitment of the
applicable US Revolving Lender, dated the Closing Date and substantially in
the form of EXHIBIT 1.1(c)(i) (each a "US REVOLVING NOTE" and,
collectively, the "US REVOLVING NOTES"). Other than pursuant to SECTION
1.1(c)(ii), if at any time the outstanding US Revolving Loans exceed the US
Borrowing Base (any such excess US Revolving Loans are herein referred to
collectively as "US OVERADVANCES"), US Lenders shall not be
Annex A
Page 6
obligated to make US Revolving Credit Advances, no additional US Letters of
Credit shall be issued and, except as provided in SECTION 1.1(c)(ii) below,
US Revolving Loans must be repaid immediately and US Letters of Credit cash
collateralized in an amount sufficient to eliminate any US Overadvances.
All US Overadvances shall constitute Index Rate Loans and shall bear
interest at the Default Rate. US Revolving Loans which are Index Rate Loans
may be requested in any amount with one (1) Business Day (or three (3)
Business Days with respect to any US Revolving Loan requested to be
advanced in Euros as provided above) prior written notice required for
funding requests equal to or greater than US$5,000,000. For funding
requests for such Loans less than US$5,000,000, written notice must be
provided by 1:00 p.m. (
New York time) on the Business Day on which the Loan
is to be made. All LIBOR Loans require three (3) Business Days prior
written notice. Written notices for funding requests shall be in the form
attached as EXHIBIT 1.1(c)(ii) ("NOTICE OF US REVOLVING CREDIT ADVANCE").
(ii) If Borrower Representative on behalf of US Borrowers requests
that US Revolving Lenders make, or permit to remain outstanding any US
Overadvances, Agent may, in its sole discretion, elect to make, or permit
to remain outstanding such US Overadvances; PROVIDED, HOWEVER, that Agent
may not cause US Revolving Lenders to make, or permit to remain
outstanding, (a) aggregate US Revolving Loans in excess of the US Maximum
Amount or (b) US Overadvances in an aggregate amount in excess of
US$1,500,000. If a US Overadvance is made, or permitted to remain
outstanding, pursuant to the preceding sentence, then all US Revolving
Lenders shall be bound to make, or permit to remain outstanding, such US
Overadvance based upon their Pro Rata Shares of the US Revolving Loan
Commitment in accordance with the terms of this Agreement. If a US
Overadvance remains outstanding for more than ninety (90) days during any
one hundred eighty (180) day period, US Revolving Loans must be repaid
immediately in an amount sufficient to eliminate all of such US
Overadvances. Furthermore, Revolving Requisite Lenders may prospectively
revoke Agent's ability to make or permit US Overadvances by written notice
to Agent.
(d) EUROPEAN REVOLVING LOANS.
(i) As of the date hereof, the outstanding principal balance of
the Original European Revolving Loan is 416,739.29 Euros (the "OUTSTANDING
ORIGINAL EUROPEAN REVOLVING LOAN BALANCE"). On the Closing Date, shall be
continued and shall convert automatically, for all purposes of this
Agreement to outstanding European Revolving Credit Advances hereunder owing
to the European Revolving Lenders as if such European Revolving Credit
Advances had been made by the such Lenders to the European Borrower
hereunder on the Closing Date ratably in accordance with their respective
Pro Rata Shares. Each European Revolving Lender agrees, severally and not
jointly, to make available to European Borrower from time to time until the
European
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Commitment Termination Date such European Revolving Lender's Pro Rata Share
of advances (each a "EUROPEAN REVOLVING CREDIT ADVANCE") requested by
Borrower Representative on behalf of the European Borrower hereunder. The
Pro Rata Share of the European Revolving Loan of any European Revolving
Lender shall not at any time exceed its separate European Revolving Loan
Commitment. European Revolving Credit Advances may be repaid and
reborrowed; provided, that the amount of any European Revolving Credit
Advance to be made at any time shall not exceed European Borrowing
Availability. All European Revolving Loans shall be advanced, denominated
and repayable in Euros. All European Revolving Loans shall be repaid in
full on the European Commitment Termination Date. European Borrower shall
execute and deliver to each European Revolving Lender a note to evidence
the European Revolving Loan Commitment of that European Revolving Lender.
Each note shall be in the principal amount of the European Revolving Loan
Commitment of the applicable European Revolving Lender, dated the Closing
Date and substantially in the form of EXHIBIT 1.1(d)(i) (each a "EUROPEAN
REVOLVING NOTE" and, collectively, the "EUROPEAN REVOLVING NOTES"; together
with the US Revolving Notes, each a "REVOLVING NOTE" and, collectively, the
"REVOLVING NOTES"). No European Revolving Note shall be in a face principal
amount of less than 50,000 Euros. Other than pursuant to SECTION
1.1(d)(ii), if at any time the outstanding European Revolving Loans exceed
the European Borrowing Base (any such excess European Revolving Loans are
herein referred to collectively as "EUROPEAN OVERADVANCES"), Lenders shall
not be obligated to make European Revolving Credit Advances, no additional
European Letters of Credit shall be issued and, except as provided in
SECTION 1.1(d)(ii) below, European Revolving Loans must be repaid
immediately and European Letters of Credit cash collateralized in an amount
sufficient to eliminate any European Overadvances. All European
Overadvances shall constitute Index Rate Loans and shall bear interest at
the Default Rate. All European Revolving Loans require three (3) Business
Days prior written notice. Written notices for funding requests shall be in
the form attached as EXHIBIT 1.1(d)(ii) ("NOTICE OF EUROPEAN REVOLVING
CREDIT ADVANCE").
(ii) If Borrower Representative on behalf of European Borrower
requests that European Revolving Lenders make, or permit to remain
outstanding any European Overadvances, Agent may, in its sole discretion,
elect to make, or permit to remain outstanding such European Overadvances;
PROVIDED, HOWEVER, that Agent may not cause European Revolving Lenders to
make, or permit to remain outstanding, (a) aggregate European Revolving
Loans in excess of the European Maximum Amount or (b) European Overadvances
in an aggregate amount in excess of 500,000 Euros. If a European
Overadvance is made, or permitted to remain outstanding, pursuant to the
preceding sentence, then all European Revolving Lenders shall be bound to
make, or permit to remain outstanding, such European Overadvance based
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upon their Pro Rata Shares of the European Revolving Loan Commitment in
accordance with the terms of this Agreement. If a European Overadvance
remains outstanding for more than ninety (90) days during any one hundred
eighty (180) day period, European Revolving Loans must be repaid
immediately in an amount sufficient to eliminate all of such European
Overadvances. Furthermore, Revolving Requisite Lenders may prospectively
revoke Agent's ability to make or permit European Overadvances by written
notice to Agent.
(e) INTENTIONALLY RESERVED.
(f) INTENTIONALLY RESERVED.
(g) US LETTERS OF CREDIT. The US Revolving Loan Commitment may, in
addition to advances under the US Revolving Loan, be utilized, upon the request
of Borrower Representative on behalf of the applicable US Borrower, for the
issuance of US Letters of Credit. Immediately upon the issuance by a US L/C
Issuer of a US Letter of Credit, and without further action on the part of Agent
or any of the Lenders, each US Revolving Lender shall be deemed to have
purchased from such US L/C Issuer a participation in such US Letter of Credit
(or in its obligation under a risk participation agreement with respect thereto)
equal to such US Revolving Lender's Pro Rata Share of the aggregate amount
available to be drawn under such US Letter of Credit.
(i) MAXIMUM AMOUNT. The aggregate amount of US Letter of Credit
Obligations with respect to all US Letters of Credit outstanding at any
time shall not exceed US$5,000,000 ("US L/C SUBLIMIT"). All US Letters of
Credit shall be stated, denominated and repayable in US Dollars.
(ii) REIMBURSEMENT. US Borrowers shall be irrevocably and
unconditionally obligated forthwith without presentment, protest or other
formalities of any kind (including for purposes of SECTION 10), to
reimburse any US L/C Issuer on demand in immediately available funds for
any amounts paid by such US L/C Issuer with respect to a US Letter of
Credit, including all reimbursement payments, Fees, Charges, costs and
expenses paid by such US L/C Issuer, PROVIDED that such obligation to
reimburse does not result from the gross negligence of such US L/C Issuer
(but only if such US L/C Issuer is also a Lender), Agent or any US
Revolving Lender or willful misconduct of such US L/C Issuer (but only if
such US L/C Issuer is also a Lender), Agent or any US Revolving Lender in
taking or omitting to take any actions in respect of such US Letter of
Credit. US Borrowers hereby authorize and direct Agent, at Agent's option,
to debit US Borrowers' account (by increasing the outstanding principal
balance of the US Revolving Credit Advances) in the amount of any payment
made by a US L/C Issuer with respect to any US Letter of Credit upon notice
from Agent to Borrower Representative of such payment. All amounts paid by
a US L/C Issuer with respect to any US Letter of Credit that are not repaid
within one (1) Business Day by US Borrowers with the
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proceeds of a US Revolving Credit Advance or otherwise shall bear interest
at the interest rate applicable to US Revolving Loans which are Index Rate
Loans plus, at the election of Agent or Requisite Revolving Lenders, an
additional two percent (2.00%) per annum. Each US Revolving Lender agrees
to fund its Pro Rata Share of any US Revolving Loan made pursuant to this
SECTION 1.1(g)(ii). In the event Agent elects not to debit US Borrowers'
account and US Borrowers fail to reimburse the US L/C Issuer in full on the
date when due for any payment made by the US L/C Issuer in respect of a US
Letter of Credit, Agent shall promptly notify each US Revolving Lender of
the amount of such unreimbursed payment and the accrued interest thereon
and each US Revolving Lender, on the next Business Day prior to 3:00 p.m.
(
New York time), shall deliver to Agent an amount equal to its Pro Rata
Share thereof in same day funds. Each US Revolving Lender hereby absolutely
and unconditionally agrees to pay to the US L/C Issuer upon demand by the
US L/C Issuer such US Revolving Lender's Pro Rata Share of each payment
made by the US L/C Issuer in respect of a US Letter of Credit and not
immediately reimbursed by US Borrowers or satisfied through a debit of US
Borrowers' account. Each US Revolving Lender acknowledges and agrees that
its obligations pursuant to this subsection in respect of US Letters of
Credit are absolute and unconditional and shall not be affected by any
circumstance whatsoever, including setoff, counterclaim, the occurrence and
continuance of a Default or an Event of Default or any failure by US
Borrowers to satisfy any of the conditions set forth in SECTION 7.2. If any
US Revolving Lender fails to make available to the US L/C Issuer the amount
of such US Revolving Lender's Pro Rata Share of any payments made by the US
L/C Issuer in respect of a US Letter of Credit as provided in this SECTION
1.1(g)(ii), the US L/C Issuer shall be entitled to recover such amount on
demand from such US Revolving Lender together with interest at the Index
Rate.
(iii) REQUEST FOR US LETTERS OF CREDIT. Borrower Representative
shall give Agent at least three (3) Business Days prior written notice
specifying the date a US Letter of Credit is requested to be issued (and
Agent shall promptly forward such notice to the US L/C Issuer), the amount
and the name and address of the beneficiary and a description of the
transactions proposed to be supported thereby. If Agent informs Borrower
Representative that the US L/C Issuer cannot issue the requested US Letter
of Credit directly, Borrower Representative may request that US L/C Issuer
arrange (and the US L/C Issuer will use reasonable efforts to so arrange)
for the issuance of the requested US Letter of Credit under a risk
participation agreement with another financial institution reasonably
acceptable to Agent, US L/C Issuer and Borrower Representative. The
issuance of any US Letter of Credit under this Agreement shall be subject
to the conditions set forth in Section 7.2 of this Agreement and that (i)
the US Letter of Credit (a) supports a transaction entered into in the
ordinary course of business of US Borrowers and (b) is in a form, and
contains such terms and conditions as are reasonably satisfactory to
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the US L/C Issuer and, in the case of standby letters of credit, Agent;
(ii) no order, judgment or decree of any court, arbitrator or governmental
authority shall purport by its terms to enjoin or restrain the US L/C
Issuer from issuing the US Letter of Credit requested; and (iii) no law,
rule, regulation, request or directive (whether or not having the force of
law) shall prohibit or request that US L/C Issuer refrain from issuing the
requested US Letter of Credit requested or letters of credit generally. The
initial notice requesting the issuance of a US Letter of Credit shall be
accompanied by the form of the US Letter of Credit and an application for a
letter of credit, if any, then required by the US L/C Issuer completed in a
manner satisfactory to such US L/C Issuer. If any provision of any
application or reimbursement agreement is inconsistent with the terms of
this Agreement, then the provisions of this Agreement, to the extent of
such inconsistency, shall control.
(iv) EXPIRATION DATES OF US LETTERS OF CREDIT. The expiration date
of each US Letter of Credit shall be on a date which is not later than the
earlier of (a) one year from its date of issuance or (b) the thirtieth
(30th) day prior to the date set forth in clause (a) of the definition of
the term US Commitment Termination Date; provided, such expiration date may
be later than the date referred to in clause (b) above so long as such
expiration is still no more than one year from the date of issuance of such
US Letter of Credit and on or prior to the issuance of such US Letter of
Credit US Borrowers deposit with Agent for the benefit of all US Revolving
Lenders cash in an amount equal to 105% of the aggregate outstanding US
Letter of Credit Obligations to be available to Agent to reimburse payments
of drafts drawn under such US Letters of Credit and pay any Fees and
expenses related thereto. Notwithstanding the foregoing, a US Letter of
Credit may provide for automatic extensions of its expiration date for one
(1) or more successive one (1) year periods provided that the US L/C Issuer
has the right to terminate such US Letter of Credit on each such annual
expiration date and, except as provided in the immediately preceding
sentence, no extension term may extend the term of the US Letter of Credit
to a date that is later than the thirtieth (30th) day prior to the date set
forth in clause (a) of the definition of the term US Commitment Termination
Date. The US L/C Issuer may elect not to extend any such US Letter of
Credit and, upon direction by Agent or Requisite Revolving Lenders, shall
not renew any such US Letter of Credit at any time during the continuance
of an Event of Default, provided that, in the case of a direction by Agent
or Requisite Revolving Lenders, (i) the US L/C Issuer receives such
direction prior to the date notice of non-renewal is required to be given
by the US L/C Issuer and the US L/C Issuer has had a reasonable period of
time (which in no event shall be less than two Business Days) to act on
such notice and (ii) notwithstanding such direction by Agent or Requisite
Revolving Lenders, any US Revolving Lender may still choose to participate
in renewing such US Letter of Credit.
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(v) OBLIGATIONS ABSOLUTE. The obligation of US Borrowers to
reimburse the US L/C Issuer, Agent and Lenders for payments made in respect
of US Letters of Credit issued by the US L/C Issuer shall be unconditional
and irrevocable and shall be paid under all circumstances strictly in
accordance with the terms of this Agreement, including the following
circumstances: (a) any lack of validity or enforceability of any US Letter
of Credit or of any Loan Document; (b) any amendment or waiver of or any
consent or departure from all or any of the provisions of any US Letter of
Credit or any Loan Document; (c) the existence of any claim, set-off,
defense or other right which US Borrowers, any of their Subsidiaries or
Affiliates or any other Person may at any time have against any beneficiary
of any US Letter of Credit, Agent, any US L/C Issuer, any Lender or any
other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreements or transactions; (d)
any draft or other document presented under any US Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (e) payment
under any US Letter of Credit against presentation of a draft or other
document that does not substantially comply with the terms of such US
Letter of Credit; or (f) any other act or omission to act or delay of any
kind of any US L/C Issuer, Agent, any Lender or any other Person or any
other event or circumstance whatsoever that might, but for the provisions
of this SECTION 1.1(g)(v), constitute a legal or equitable discharge of US
Borrowers' obligations hereunder.
(vi) OBLIGATIONS OF US L/C ISSUERS. Each US L/C Issuer hereby
agrees that it will not issue a US Letter of Credit hereunder until it has
provided Agent with written notice specifying the amount and intended
issuance date of such US Letter of Credit (which such US L/C Issuer agrees
to promptly so provide) and Agent has returned a written acknowledgment
(which Agent agrees to promptly so return) of such notice to US L/C Issuer.
Each US L/C Issuer further agrees to provide to Agent: (a) a copy of each
US Letter of Credit issued by such US L/C Issuer promptly after its
issuance; (b) a weekly report summarizing available amounts under US
Letters of Credit issued by such US L/C Issuer, the dates and amounts of
any draws under such US Letters of Credit, the effective date of any
increase or decrease in the face amount of any US Letters of Credit during
such week and the amount of any unreimbursed draws under such US Letters of
Credit; and (c) such additional information reasonably requested by Agent
from time to time with respect to the US Letters of Credit issued by such
US L/C Issuer. Without limiting the generality of the foregoing, it is
expressly understood and agreed by US Borrowers that the absolute and
unconditional obligation of US Borrowers to Agent and Lenders hereunder to
reimburse payments made under a US Letter of Credit will not be excused by
the gross negligence or willful misconduct of the US L/C Issuer (except if
the US L/C Issuer which issued such Letter of Credit is the Agent or a
Lender). However, the foregoing shall not be
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construed to excuse a US L/C Issuer from liability to US Borrowers to the
extent of any direct damages (as opposed to consequential damages, with US
Borrowers hereby waiving all claims for any consequential damages to the
extent permitted by applicable law) suffered by US Borrowers.
(h) EUROPEAN LETTERS OF CREDIT. The European Revolving Loan
Commitment may, in addition to advances under the European Revolving Loan, be
utilized, upon the request of Borrower Representative on behalf of the European
Borrower, for the issuance of European Letters of Credit. Immediately upon the
issuance by a European L/C Issuer of a European Letter of Credit, and without
further action on the part of Agent or any of the Lenders, each European
Revolving Lender shall be deemed to have purchased from such European L/C Issuer
a participation in such European Letter of Credit (or in its obligation under a
risk participation agreement with respect thereto) equal to such European
Revolving Lender's Pro Rata Share of the aggregate amount available to be drawn
under such European Letter of Credit.
(i) MAXIMUM AMOUNT. The aggregate amount of European Letter of
Credit Obligations with respect to all European Letters of Credit
outstanding at any time shall not exceed 2,000,000 Euros ("EUROPEAN L/C
SUBLIMIT"). All European Letters of Credit shall be stated, denominated and
repayable in Euros.
(ii) REIMBURSEMENT. European Borrower shall be irrevocably and
unconditionally obligated forthwith without presentment, protest or other
formalities of any kind (including for purposes of SECTION 10), to
reimburse any European L/C Issuer on demand in immediately available funds
for any amounts paid by such European L/C Issuer with respect to a European
Letter of Credit, including all reimbursement payments, Fees, Charges,
costs and expenses paid by such European L/C Issuer, PROVIDED that such
obligation to reimburse does not result from the gross negligence of such
European L/C Issuer (but only if such European L/C Issuer is also a
Lender), Agent or any European Revolving Lender or willful misconduct of
such European L/C Issuer (but only if such European L/C Issuer is also a
Lender), Agent or any European Revolving Lender in taking or omitting to
take any actions in respect of such European Letter of Credit. European
Borrower hereby authorizes and directs Agent, at Agent's option, to debit
European Borrower's account (by increasing the outstanding principal
balance of the European Revolving Credit Advances) in the amount of any
payment made by a European L/C Issuer with respect to any European Letter
of Credit upon notice from Agent to Borrower Representative of such
payment. All amounts paid by a European L/C Issuer with respect to any
European Letter of Credit that are not repaid within one (1) Business Day
by European Borrower with the proceeds of a European Revolving Credit
Advance or otherwise shall bear interest at the interest rate applicable to
European Revolving Loans which are Index Rate Loans plus, at the election
of Agent or Requisite Revolving Lenders, an additional two percent (2.00%)
per annum. Each European Revolving Lender agrees to fund
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its Pro Rata Share of any European Revolving Loan made pursuant to this
SECTION 1.1(h)(ii). In the event Agent elects not to debit European
Borrower's account and European Borrower fails to reimburse the European
L/C Issuer in full on the date of any payment in respect of a European
Letter of Credit, Agent shall promptly notify each European Revolving
Lender of the amount of such unreimbursed payment and the accrued interest
thereon and each European Revolving Lender, on the next Business Day prior
to 3:00 p.m. (
New York time), shall deliver to Agent an amount equal to its
Pro Rata Share thereof in same day funds. Each European Revolving Lender
hereby absolutely and unconditionally agrees to pay to the European L/C
Issuer upon demand by the European L/C Issuer such European Revolving
Lender's Pro Rata Share of each payment made by the European L/C Issuer in
respect of a European Letter of Credit and not immediately reimbursed by
European Borrower or satisfied through a debit of European Borrower's
account. Each European Revolving Lender acknowledges and agrees that its
obligations pursuant to this subsection in respect of European Letters of
Credit are absolute and unconditional and shall not be affected by any
circumstance whatsoever, including setoff, counterclaim, the occurrence and
continuance of a Default or an Event of Default or any failure by European
Borrower to satisfy any of the conditions set forth in SECTION 7.2. If any
European Revolving Lender fails to make available to the European L/C
Issuer the amount of such European Revolving Lender's Pro Rata Share of any
payments made by the European L/C Issuer in respect of a European Letter of
Credit as provided in this SECTION 1.1(h)(ii), the European L/C Issuer
shall be entitled to recover such amount on demand from such European
Revolving Lender together with interest at the Index Rate.
(iii) REQUEST FOR EUROPEAN LETTERS OF CREDIT. Borrower
Representative shall give Agent at least three (3) Business Days prior
written notice specifying the date a European Letter of Credit is requested
to be issued (and Agent shall promptly forward such notice to European L/C
Issuer), the amount and the name and address of the beneficiary and a
description of the transactions proposed to be supported thereby. If Agent
informs Borrower Representative that the European L/C Issuer cannot issue
the requested European Letter of Credit directly, Borrower Representative
may request that European L/C Issuer arrange (and the European L/C Issuer
will use reasonable efforts to so arrange) for the issuance of the
requested European Letter of Credit under a risk participation agreement
with another financial institution reasonably acceptable to Agent, European
L/C Issuer and Borrower Representative. The issuance of any European Letter
of Credit under this Agreement shall be subject to the conditions set forth
in Section 7.2 of this Agreement and that (i) the European Letter of Credit
(a) supports a transaction entered into in the ordinary course of business
of European Borrower and (b) is in a form, and contains such terms and
conditions as are reasonably satisfactory to the European L/C Issuer and,
in the case of standby letters of
Annex A
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credit, Agent; (ii) no order, judgment or decree of any court, arbitrator
or governmental authority shall purport by its terms to enjoin or restrain
the European L/C Issuer from issuing the European Letter of Credit
requested; and (iii) no law, rule, regulation, request or directive
(whether or not having the force of law) shall prohibit or request that
European L/C Issuer refrain from issuing the requested European Letter of
Credit requested or letters of credit generally. The initial notice
requesting the issuance of a European Letter of Credit shall be accompanied
by the form of the European Letter of Credit and an application for a
letter of credit, if any, then required by the European L/C Issuer
completed in a manner satisfactory to such European L/C Issuer. If any
provision of any application or reimbursement agreement is inconsistent
with the terms of this Agreement, then the provisions of this Agreement, to
the extent of such inconsistency, shall control.
(iv) EXPIRATION DATES OF EUROPEAN LETTERS OF CREDIT. The expiration
date of each European Letter of Credit shall be on a date which is not
later than the earlier of (a) one year from its date of issuance or (b) the
thirtieth (30th) day prior to the date set forth in clause (a) of the
definition of the term European Commitment Termination Date; provided, such
expiration date may be later than the date referred to in clause (b) above
so long as such expiration is still no more than one year from the date of
issuance of such European Letter of Credit and on or prior to the issuance
of such European Letter of Credit European Borrower deposits with Agent for
the benefit of all European Revolving Lenders cash in an amount equal to
105% of the aggregate outstanding European Letter of Credit Obligations to
be available to Agent to reimburse payments of drafts drawn under such
European Letters of Credit and pay any Fees and expenses related thereto.
Notwithstanding the foregoing, a European Letter of Credit may provide for
automatic extensions of its expiration date for one (1) or more successive
one (1) year periods provided that the European L/C Issuer has the right to
terminate such European Letter of Credit on each such annual expiration
date and, except as provided in the immediately preceding sentence, no
extension term may extend the term of the European Letter of Credit to a
date that is later than the thirtieth (30th) day prior to the date set
forth in clause (a) of the definition of the term European Commitment
Termination Date. The European L/C Issuer may elect not to renew any such
European Letter of Credit and, upon direction by Agent or Requisite
Revolving Lenders, shall not extend any such European Letter of Credit at
any time during the continuance of an Event of Default, provided that, in
the case of a direction by Agent or Requisite Revolving Lenders, (i) the
European L/C Issuer receives such direction prior to the date notice of
non-renewal is required to be given by the European L/C Issuer and the
European L/C Issuer has had a reasonable period of time (which in no event
shall be less than two Business Days) to act on such notice and (ii)
notwithstanding such direction by Agent or Requisite Revolving Lenders, any
European Revolving
Annex A
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Lender may still choose to participate in renewing such European Letter of
Credit.
(v) OBLIGATIONS ABSOLUTE. The obligation of European Borrower to
reimburse the European L/C Issuer, Agent and Lenders for payments made in
respect of European Letters of Credit issued by the European L/C Issuer
shall be unconditional and irrevocable and shall be paid under all
circumstances strictly in accordance with the terms of this Agreement,
including the following circumstances: (a) any lack of validity or
enforceability of any European Letter of Credit or of any Loan Document;
(b) any amendment or waiver of or any consent or departure from all or any
of the provisions of any European Letter of Credit or any Loan Document;
(c) the existence of any claim, set-off, defense or other right which
European Borrower, any of its Subsidiaries or Affiliates or any other
Person may at any time have against any beneficiary of any European Letter
of Credit, Agent, any European L/C Issuer, any Lender or any other Person,
whether in connection with this Agreement, any other Loan Document or any
other related or unrelated agreements or transactions; (d) any draft or
other document presented under any European Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (e) payment under any
European Letter of Credit against presentation of a draft or other document
that does not substantially comply with the terms of such European Letter
of Credit; or (f) any other act or omission to act or delay of any kind of
any European L/C Issuer, Agent, any Lender or any other Person or any other
event or circumstance whatsoever that might, but for the provisions of this
SECTION 1.1(h)(v), constitute a legal or equitable discharge of European
Borrower's obligations hereunder.
(vi) OBLIGATIONS OF EUROPEAN L/C ISSUERS. Each European L/C Issuer
hereby agrees that it will not issue a European Letter of Credit hereunder
until it has provided Agent with written notice specifying the amount and
intended issuance date of such European Letter of Credit (which such
European L/C Issuer agrees to promptly so provide) and Agent has returned a
written acknowledgment (which Agent agrees to promptly so return) of such
notice to European L/C Issuer. Each European L/C Issuer further agrees to
provide to Agent: (a) a copy of each European Letter of Credit issued by
such European L/C Issuer promptly after its issuance; (b) a weekly report
summarizing available amounts under European Letters of Credit issued by
such European L/C Issuer, the dates and amounts of any draws under such
European Letters of Credit, the effective date of any increase or decrease
in the face amount of any European Letters of Credit during such week and
the amount of any unreimbursed draws under such European Letters of Credit;
and (c) such additional information reasonably requested by Agent from time
to time with respect to the European Letters of Credit issued by such
European L/C Issuer. Without limiting the generality of the foregoing, it
is
Annex A
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expressly understood and agreed by European Borrower that the absolute and
unconditional obligation of European Borrower to Agent and Lenders
hereunder to reimburse payments made under a European Letter of Credit will
not be excused by the gross negligence or willful misconduct of the
European L/C Issuer (except if the European L/C Issuer which issued such
Letter of Credit is the Agent or a Lender). However, the foregoing shall
not be construed to excuse a European L/C Issuer from liability to European
Borrower to the extent of any direct damages (as opposed to consequential
damages, with European Borrower hereby waiving all claims for any
consequential damages to the extent permitted by applicable law) suffered
by European Borrower.
(i) US FUNDING AUTHORIZATION. The proceeds of all US Loans made
pursuant to this Agreement subsequent to the Closing Date are to be funded by
Agent by wire transfer to the account designated by Borrower Representative
below (the "US DISBURSEMENT ACCOUNT"):
Bank: Comerica Bank
ABA No.: ▇▇▇▇▇▇▇▇▇
Bank Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account No.: 1851121176
Reference: SportRack/▇▇▇▇▇ ▇▇▇▇▇▇
Borrower Representative shall provide Agent with written notice of any change in
the foregoing instructions at least three (3) Business Days before the desired
effective date of such change.
(j) EUROPEAN FUNDING AUTHORIZATION. The proceeds of all European
Loans made pursuant to this Agreement subsequent to the Closing Date are to be
funded by Agent by wire transfer to the account designated by Borrower
Representative below (the "EUROPEAN DISBURSEMENT ACCOUNT"):
Bank: ABN Amro Bank N.V., Eindhoven
Swift: ABN ANL 2A
Bank Address: ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Account No.: 54 71 46 337
Reference: Brink / P van Buren
Borrower Representative shall provide Agent with written notice of any change in
the foregoing instructions at least three (3) Business Days before the desired
effective date of such change.
Annex A
Page 17
Section 1.2 INTEREST AND APPLICABLE MARGINS.
(a) US LOANS. US Borrowers shall pay interest to Agent, for the
ratable benefit of US Lenders, in accordance with the various US Loans being
made by each US Lender, in arrears on each applicable Interest Payment Date, at
the following rates: with respect to the US Revolving Credit Advances which are
designated as Index Rate Loans (and for all other Obligations of US Borrowers
not otherwise set forth below), the Index Rate plus the Applicable US Revolver
Index Margin per annum or, with respect to US Revolving Credit Advances which
are designated as LIBOR Loans, at the election of Borrower Representative, the
applicable LIBOR Rate plus the Applicable US Revolver LIBOR Margin per annum..
The Applicable Margins pertaining to the US Loans are as follows:
Applicable US Revolver Index Margin 2.25%
Applicable US Revolver LIBOR Margin 3.75%
Applicable US L/C Margin 3.75%
(b) EUROPEAN LOANS. European Borrower shall pay interest to Agent,
for the ratable benefit of European Lenders, in accordance with the various
European Loans being made by each European Lender, in arrears on each applicable
Interest Payment Date, at the following rates: (i) with respect to the European
Revolving Credit Advances which are designated as Index Rate Loans (and for all
other Obligations of European Borrower not otherwise set forth below), the Index
Rate plus the Applicable European Revolver Index Margin per annum or, with
respect to European Revolving Credit Advances which are designated as LIBOR
Loans, at the election of Borrower Representative, the applicable LIBOR Rate
plus the Applicable European Revolver LIBOR Margin per annum; and (ii) with
respect to such portion of the European Term Loan designated as an Index Rate
Loan, the Index Rate plus the Applicable European Term Loan Index Margin per
annum or, with respect to such portion of the European Term Loan designated as a
LIBOR Loan, the applicable LIBOR Rate plus the Applicable European Term Loan
LIBOR Margin per annum.
The Applicable Margins pertaining to the European Loans are as
follows:
Applicable European Revolver Index Margin 2.25%
Applicable European Revolver LIBOR Margin 3.75%
Applicable European Term Loan Index Margin 2.25%
Applicable European Term Loan LIBOR Margin 3.75%
Applicable European L/C Margin 3.75%
(c) If any payment on any Loan becomes due and payable on a day
other than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day (except as set forth in the definition of LIBOR Period)
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
Annex A
Page 18
(d) All computations of Fees calculated on a per annum basis and
interest shall be made by Agent on the basis of a 360-day year, in each case for
the actual number of days occurring in the period for which such Fees and
interest are payable. The Index Rate is a floating rate determined for each day.
Each determination by Agent of an interest rate and Fees hereunder shall be
final, binding and conclusive on Borrowers, absent manifest error.
(e) At the election of Agent (or upon the written request of
Requisite Lenders), confirmed by written notice from Agent to Borrower
Representative, after the occurrence, and during the continuation, of an Event
of Default described in SECTIONS 6.1(a), 6.1(c) (resulting from non compliance
with SECTION 2.9, 4.4, 4.7, 4.8(d) or 4.8(n)) or 6.1(j), and automatically and
without notice of any kind after the occurrence, and during the continuation, of
an Event of Default described in SECTION 6.1(f) or 6.1(g), the interest rates
applicable to the Loans and the Letter of Credit Fee shall be increased by two
percentage points (2%) per annum above the rates of interest or the rate of such
Fee otherwise applicable hereunder ("DEFAULT RATE"), and all outstanding
Obligations shall bear interest at the Default Rate applicable to such
Obligations. Interest and Letter of Credit Fees at the Default Rate shall accrue
from the initial date of such Event of Default until that Event of Default is
cured or waived and shall be payable upon demand, but in any event, shall be
payable on the next regularly scheduled payment date set forth herein for such
Obligation.
(f) Borrower Representative shall have the option, with respect to
the US Loans or European Loans, as applicable, to (i) request that any Revolving
Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part
of outstanding Loans from Index Rate Loans to LIBOR Loans, (iii) convert any
LIBOR Loan to an Index Rate Loan, subject to payment of the LIBOR Breakage Fee
in accordance with SECTION 1.3(d) if such conversion is made prior to the
expiration of the LIBOR Period applicable thereto, or (iv) continue all or any
portion of any Loan as a LIBOR Loan upon the expiration of the applicable LIBOR
Period and the succeeding LIBOR Period of that continued Loan shall commence on
the first day after the last day of the LIBOR Period of the Loan to be
continued. Any US Loan or group of US Loans having the same proposed LIBOR
Period to be made or continued as, or converted into, a LIBOR Loan must be in a
minimum amount of US$1,000,000 and integral multiples of US$500,000 in excess of
such amount. Any European Loan or group of European Loans having the same
proposed LIBOR Period to be made or continued as, or converted into, a LIBOR
Loan must be in a minimum amount of 500,000 Euros and integral multiples of
250,000 Euros in excess of such amount. Any such election must be made by 1:00
p.m. (
New York time) on the 3rd Business Day prior to (1) the date of any
proposed Revolving Credit Advance which is to bear interest at the LIBOR Rate,
(2) the end of each LIBOR Period with respect to any LIBOR Loans to be continued
as such, or (3) the date on which Borrower Representative wishes to convert any
Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by Borrower
Representative in such election. If no election is received with respect to a
LIBOR Loan by 1:00 p.m. (
New York time) on the 3rd Business Day prior to the end
of the LIBOR Period with respect thereto, that LIBOR Loan shall be converted to
an Index Rate Loan at the end of its LIBOR Period. Borrower Representative must
make such election by notice to Agent in writing, by fax or overnight courier.
In the case of any conversion or continuation, such
Annex A
Page 19
election must be made pursuant to a written notice (a "NOTICE OF
CONVERSION/CONTINUATION") in the form of EXHIBIT 1.2(f). No Loan shall be made,
converted into or continued as a LIBOR Loan, if an Event of Default has occurred
and is continuing and Agent or Requisite Lenders have determined not to make or
continue any Loan as a LIBOR Loan as a result thereof.
(g) Notwithstanding anything to the contrary set forth in this
SECTION 1.2, if a court of competent jurisdiction determines in a final order
that the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "MAXIMUM LAWFUL RATE"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder shall
be equal to the Maximum Lawful Rate; PROVIDED, HOWEVER, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Closing Date as otherwise provided in this
Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
interest and in the manner provided in SECTIONS 1.2(a) THROUGH (f), unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this SECTION 1.2(g), a court of competent
jurisdiction shall determine by a final, non-appealable order that a Lender has
received interest hereunder in excess of the Maximum Lawful Rate, Agent shall,
to the extent permitted by applicable law, promptly apply such excess as
specified in SECTION 1.5(e) and thereafter shall refund any excess to Borrowers
or as such court of competent jurisdiction may otherwise order.
Section 1.3 FEES
(a) FEE LETTER. Borrowers shall pay to GE Capital, individually,
the Fees specified in that certain fee letter of even date herewith among
Borrowers and GE Capital (the "GE CAPITAL FEE LETTER"), at the times
specified for payment therein.
(b) UNUSED LINE FEES.
(i) US LOANS. As additional compensation for the US Revolving
Lenders, US Borrowers shall pay to Agent, for the ratable benefit of such
Lenders, in arrears, on the first Business Day of each month prior to the
US Commitment Termination Date and on the US Commitment Termination Date, a
fee for US Borrowers' non-use of available funds in an amount equal to the
Applicable US Unused Line Fee Margin per annum multiplied by the difference
between (x) the US Maximum Amount (as it may be reduced from
Annex A
Page 20
time to time) and (y) the average for the period of the daily closing
balances of the US Revolving Loan outstanding during the period for which
such Fee is due.
(ii) EUROPEAN LOANS. As additional compensation for the European
Revolving Lenders, European Borrower shall pay to Agent, for the ratable
benefit of such Lenders, in arrears, on the first Business Day of each
month prior to the European Commitment Termination Date and on the European
Commitment Termination Date, a fee for European Borrower's non-use of
available funds in an amount equal to the Applicable European Unused Line
Fee Margin per annum multiplied by the difference between (x) the European
Maximum Amount (as it may be reduced from time to time) and (y) the average
for the period of the daily closing balances of the European Revolving Loan
outstanding during the period for which such Fee is due.
(c) LETTER OF CREDIT FEES.
(i) US LETTERS OF CREDIT. US Borrowers agree to pay to Agent for
the benefit of US Revolving Lenders, as compensation to such US Revolving
Lenders for US Letter of Credit Obligations incurred hereunder, (i) all
reasonable costs and expenses, if any, incurred by Agent or any Lender on
account of such US Letter of Credit Obligations, and (ii) for each month
during which any US Letter of Credit Obligation shall remain outstanding, a
fee (the "US LETTER OF CREDIT FEE") in an amount equal to the Applicable US
L/C Margin from time to time in effect multiplied by the average for the
period of the maximum amount available from time to time to be drawn under
the applicable US Letter of Credit. Such fee shall be paid to Agent for the
benefit of the US Revolving Lenders in arrears, on the first Business Day
of each month and on the US Commitment Termination Date. In addition, US
Borrowers shall pay to any US L/C Issuer, promptly after receipt of
documentation in support thereof, such fees (including all per annum fees),
charges and expenses, including attorney fees and expenses, (provided if
the US L/C Issuer is a Lender, such expenses, including attorney fees and
expenses, must be reasonable) of such US L/C Issuer in respect of (i) the
issuance, negotiation, acceptance, amendment, transfer and payment of such
US Letter of Credit or otherwise payable pursuant to the application and
related documentation under which such US Letter of Credit is issued and
(ii) any action or proceeding relating to a court order, injunction or
other process or decree restraining or seeking to restrain the US L/C
Issuer from paying any amount under, or otherwise relating in any way to,
any US Letter of Credit.
(ii) EUROPEAN LETTERS OF CREDIT. European Borrower agrees to pay to
Agent for the benefit of European Revolving Lenders, as compensation to
such European Revolving Lenders for European Letter of Credit Obligations
incurred hereunder, (i) all reasonable costs and expenses, if any, incurred
by Agent or any Lender on account of such European Letter of Credit
Annex A
Page 21
Obligations, and (ii) for each month during which any European Letter of
Credit Obligation shall remain outstanding, a fee (the "EUROPEAN LETTER OF
CREDIT FEE") in an amount equal to the Applicable European L/C Margin from
time to time in effect multiplied by the average for the period of the
maximum amount available from time to time to be drawn under the applicable
European Letter of Credit. Such fee shall be paid to Agent for the benefit
of the European Revolving Lenders in arrears, on the first Business Day of
each month and on the European Commitment Termination Date. In addition,
European Borrower shall pay to any European L/C Issuer, promptly after
receipt of documentation in support thereof, such fees (including all per
annum fees), charges and expenses, including attorney fees and expenses,
(provided if the European L/C Issuer is a Lender, such expenses, including
attorney fees and expenses, must be reasonable) of such European L/C Issuer
in respect of (i) the issuance, negotiation, acceptance, amendment,
transfer and payment of such European Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such
European Letter of Credit is issued and (ii) any action or proceeding
relating to a court order, injunction or other process or decree
restraining or seeking to restrain the European L/C Issuer from paying any
amount under, or otherwise relating in any way to, any European Letter of
Credit.
(d) LIBOR BREAKAGE FEE. Upon (i) any default by any Borrower in
making any borrowing of, conversion into or continuation of any LIBOR Loan
following Borrower Representative's delivery to Agent of any LIBOR Loan request
in respect thereof or (ii) any payment of a LIBOR Loan on any day that is not
the last day of the LIBOR Period applicable thereto (regardless of the source of
such prepayment and whether voluntary, by acceleration or otherwise), Borrowers
(provided that if the LIBOR Breakage Fee pertains to a US Loan and not a
European Loan, only the US Borrowers, and not the European Borrower, shall be
liable for such Breakage Fee) shall pay Agent, for the benefit of all Lenders
that funded or were prepared to fund any such LIBOR Loan, the LIBOR Breakage
Fee.
(e) EXPENSES AND ATTORNEYS' FEES. Borrowers agree to pay all fees,
charges, costs and expenses (including reasonable attorneys' fees and expenses
and the allocated cost of internal legal staff) incurred by Agent in connection
with any matters contemplated by or arising out of the Loan Documents, in
connection with the examination, review, due diligence investigation,
documentation, negotiation, closing and syndication of the transactions
contemplated herein and in connection with the continued administration of the
Loan Documents including any amendments, modifications, consents and waivers.
Borrowers agree to promptly pay reasonable documentation charges assessed by
Agent for amendments, waivers, consents and any of the documentation prepared by
Agent's internal legal staff. Borrowers agree to pay all fees, charges, costs
and expenses (including fees, charges, costs and expenses of attorneys, auditors
(whether internal or external), appraisers, consultants and advisors and the
allocated cost of internal legal staff) incurred by Agent in connection with any
Event of Default, work-out or action to enforce any Loan Document or to collect
any payments due from Borrowers or any other Credit Party. In addition, in
Annex A
Page 22
connection with the Lender Risk Allocation Agreement, Borrowers agree to
reimburse Agent and Lenders for any foreign exchange costs incurred by Agent or
Lenders resulting from converting currencies to the extent necessary and in
accordance with this Agreement; PROVIDED, that Borrowers shall have no
obligations under this sentence of Section 1.3(e) by reason of any conversion
costs incurred by any Lender in respect of a conversion made after the
Conversion Date. In addition, in connection with any work-out or action to
enforce any Loan Document or to collect any payments due from Borrowers or any
other Credit Party, Borrowers agree to promptly pay all fees, charges, costs and
expenses incurred by Lenders for one (1) counsel acting for all Lenders other
than Agent. All fees, charges, costs and expenses for which Borrowers are
responsible under this SECTION 1.3(e) shall be (i) deemed part of the
Obligations when incurred and be secured by the Collateral and (ii) payable (x)
within 10 Business Days (or within 5 Business Days during the continuance of an
Event of Default) after demand by Agent to Borrower Representative accompanied
by supporting documentation in reasonable detail; provided if Borrower
Representative notifies Agent prior to the end of such 10 Business Day period
(or such 5 Business Day period, as applicable) that it is disputing any such
fees, charges, costs and/or expenses that exceed the US Dollar Equivalent of
$15,000 in the aggregate, such fees, charges, costs and/or expenses shall not be
payable until the earlier of the date that such dispute is resolved or 30 days
(or during the continuance of an Event of Default, 10 Business Days) from the
date that Agent first made demand for such fees, charges, costs and/or expenses.
Once such amounts become payable, they may be paid in accordance with the second
to last paragraph of SECTION 1.4.
Section 1.4 PAYMENTS.
All payments by US Borrowers of the Obligations shall be without
deduction, defense, setoff or counterclaim and shall be made in US Dollars (or
in Euros with respect to the European Obligations) in same day funds and
delivered to Agent, for the benefit of Agent and Lenders, as applicable, by wire
transfer to the following account or such other place as Agent may from time to
time designate in writing.
ABA No. ▇▇▇-▇▇▇-▇▇▇
Account Number ▇▇▇-▇▇▇-▇▇
Bankers Trust Company
New York,
New York
ACCOUNT NAME: GECC/CAF DEPOSITORY
Reference: GE Capital re Advanced Accessories
All payments by European Borrowers of the European Obligations shall
be made in Euros without deduction, defense, setoff or counterclaim and shall be
made in same day funds and delivered to Agent, for the benefit of Agent and
Lenders, as applicable, by wire transfer to the following account or such other
place as Agent may from time to time designate in writing.
Deutsche Bank, Frankfurt
Account Number: 175071000
Account Name: GE Capital Corp Comm
Annex A
Page 23
Sort Code: 50070010
Swift Code: Deutdeff
Reference: GE Capital re Advanced Accessories
Borrowers shall receive credit on the day of receipt for funds received by Agent
by 2:00 p.m. (
New York time). In the absence of timely receipt, such funds shall
be deemed to have been paid on the next Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day,
the payment may be made on the next succeeding Business Day and such extension
of time shall be included in the computation of the amount of interest and Fees
due hereunder.
US Borrowers hereby authorize Lenders to make US Revolving Credit
Advances (provided that solely with respect to expenses expressly covered by
SECTION 1.3(e), no US Revolving Credit Advances will be made with respect to
such expenses until such expenses are payable in accordance with SECTION
1.3(e)), on the basis of their Pro Rata Shares, for the payment of interest,
Fees and expenses, in each case pertaining to US Loans, US Letter of Credit
reimbursement obligations and any amounts required to be deposited with respect
to outstanding US Letter of Credit Obligations pursuant to SECTION 1.5(f) or
6.3; provided that no such US Revolving Credit Advance shall be made until after
noon
New York time on the day that such interest, Fee and/or expense first
became payable. European Borrower hereby authorizes Lenders to make European
Revolving Credit Advances (provided that solely with respect to expenses
expressly covered by SECTION 1.3(e), no European Revolving Credit Advances will
be made with respect to such expenses until such expenses are payable in
accordance with SECTION 1.3(e)), on the basis of their Pro Rata Shares, for the
payment of Scheduled Installments, interest, Fees and expenses, in each case
pertaining to European Loans, European Letter of Credit reimbursement
obligations and any amounts required to be deposited with respect to outstanding
European Letter of Credit Obligations pursuant to SECTION 1.5(f) or 6.3;
provided that no such European Revolving Credit Advance shall be made until
after noon
New York time on the day that such Scheduled Installment, interest,
Fee and/or expense first became payable.
If Agent receives any payment from or on behalf of any Credit Party in
a currency other than the currency in which an Obligation payment is
denominated, Agent may convert the payment (including the monetary proceeds of
realization upon any Collateral and any funds then held in a cash collateral
account) into the currency of the relevant Obligation at the Exchange Rate in
the manner contemplated by SECTION 9.1(b). The obligation shall be satisfied
only to the extent of the amount actually received by Agent upon such
conversion.
Section 1.5 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS OF LOANS. At any time, (i) US Borrowers
may prepay the US Loans, in whole or in part, without premium or penalty subject
to the payment of LIBOR Breakage Fees, if applicable and (ii) European Borrower
may prepay the European Loans, in whole or in part, without premium or penalty
subject to the payment of LIBOR Breakage Fees, if applicable. Prepayments of
European Term Loan shall be applied in accordance with SECTION 1.5(e)(i), or as
otherwise may be agreed by Requisite Lenders.
Annex A
Page 24
(b) PREPAYMENTS RE CURRENCY FLUCTUATIONS. If at any time when the
Public Note Indenture is in effect the Dollar Equivalent of the outstanding
amount of the Loans exceeds US$60,000,000, the Loans must be repaid within two
(2) Business Days in an amount sufficient to eliminate any such excess; provided
that such prepayment shall not be required if prior to the end of such two (2)
Business Day period, and on each Funding Date thereafter that the Dollar
Equivalent of the outstanding amount of the Loans exceeds US$60,000,000 after
giving effect to such requested funding, the Borrower Representative has
demonstrated to the satisfaction of Agent (including without limitation by
delivering officer certificates and calculations that the Agent may reasonably
request in connection therewith) that all of such Loans and all of the Liens of
Agent and the Lenders securing such Loans are permitted pursuant to the Public
Note Indenture. In the event of any repayment required under this clause (b),
the Borrowers may elect which Loans are so repaid.
(c) PREPAYMENTS FROM ASSET DISPOSITIONS.
(i) US BORROWERS. Immediately upon receipt by either US
Borrower or any of its Subsidiaries from any Asset Disposition of
any Net Proceeds in excess of (x) the Dollar Equivalent of
US$1,250,000 for any single transaction or series of related
transactions during any Fiscal Year or (y) the Dollar Equivalent
of US$3,000,000 in the aggregate during the term of this
Agreement, US Borrowers shall repay the US Revolving Credit
Advances (without reduction of the US Revolving Loan Commitment)
by an amount equal to the amount of such Net Proceeds. US
Borrowers or their Subsidiaries may reinvest (or commit to
reinvest) all Net Proceeds of such Asset Disposition, within two
hundred and seventy days (270) days after such Asset Disposition
(or within one hundred and eighty days (180) days prior to such
Asset Disposition), in productive replacement fixed assets of a
kind then used or usable in the business of US Borrowers
(provided that if such fixed assets are purchased within the one
hundred and eighty day (180) period prior to such Asset
Disposition, Borrower Representative shall notify Agent prior to
such purchase that such purchase is being made with the
anticipated Net Proceeds of such anticipated Asset Disposition).
If US Borrowers do not intend to so reinvest (or commit to so
reinvest) such Net Proceeds or if the period set forth in the
immediately preceding sentence expires without US Borrowers
having reinvested (or committing to reinvest) such Net Proceeds
or if such Net Proceeds are attributable to a working capital,
earnings, balance sheet or similar adjustment under the
Acquisition Agreement, European Borrower shall prepay the
European Term Loan in an aggregate amount equal to such Net
Proceeds of such Asset Disposition. The payments shall be applied
in accordance with SECTION 1.5(e)(i), or as otherwise may be
agreed by Requisite Lenders.
(ii) EUROPEAN BORROWER. Immediately upon receipt by European
Borrower or any of its Subsidiaries from any Asset Disposition of
any Net Proceeds in excess of (x) the Dollar Equivalent of
US$625,000 for any single transaction or series of related
transactions during any Fiscal Year or (y) the
Annex A
Page 25
Dollar Equivalent of US$1,500,000 in the aggregate during the
term of this Agreement, European Borrower shall repay the
European Revolving Credit Advances (without reduction of the
European Revolving Loan Commitment) by an amount equal to the
amount of such Net Proceeds. European Borrower or its
Subsidiaries may reinvest (or commit to reinvest) all Net
Proceeds of such Asset Disposition, within two hundred and
seventy days (270) days after such Asset Disposition (or within
one hundred and eighty days (180) days prior to such Asset
Disposition), in productive replacement fixed assets of a kind
then used or usable in the business of European Borrower
(provided that if such fixed assets are purchased within the one
hundred and eighty day (180) period prior to such Asset
Disposition, Borrower Representative shall notify Agent prior to
such purchase that such purchase is being made with the
anticipated Net Proceeds of such anticipated Asset Disposition).
If European Borrower does not intend to so reinvest (or commit to
so reinvest) such Net Proceeds or if the period set forth in the
immediately preceding sentence expires without European Borrower
having reinvested (or committing to reinvest) such Net Proceeds
or if such Net Proceeds are attributable to a working capital,
earnings, balance sheet or similar adjustment under the
Acquisition Agreement, European Borrower shall repay the European
Term Loan in an aggregate amount equal to such Net Proceeds of
such Asset Disposition. The payment shall be applied in
accordance with SECTION 1.5(e)(i), or as otherwise may be agreed
by Requisite Lenders.
(d) PREPAYMENTS FROM ISSUANCE OF SECURITIES/SUBORDINATED ULTIMATE
HOLDINGS PIK DEBT. Immediately upon the receipt by any Credit Party of the
proceeds of the issuance of Stock or Subordinated Ultimate Holdings PIK Debt
(other than (1) proceeds of the issuance of Stock by Ultimate Holdings received
on or before the Closing Date, (2) proceeds from the issuance of Stock (or
options therefor) to employees, consultants, agents, officers and directors of
Ultimate Holdings or any Borrower, (3) in connection with the consummation of a
Permitted Acquisition, proceeds from the issuance of equity securities or
Subordinated Ultimate Holdings PIK Debt used on or around the date of such
issuance to purchase the Target of such Permitted Acquisition, (4) proceeds of
the issuance of Stock to any Borrower or any Subsidiary of any Borrower and (5)
proceeds of the issuance of equity securities, to the extent not prohibited by
this Agreement and the other Loan Documents, of a Credit Party (A) to CHP or
other investors other than pursuant to a public offering of equity securities or
(B) after the Term Loans have been repaid in full (provided that such
requirement that the Terms Loans must have been so repaid in full may be waived
by Agent), pursuant to a public offering of equity securities to the extent
proceeds are not used within ninety (90) days of such public offering to prepay
or redeem the Public Note Debt in accordance with SECTION 3.5(c)), Borrowers
shall prepay the Loans in an amount equal to seventy percent (70%) of such
proceeds, net of underwriting discounts and commissions and other reasonable
costs associated therewith. The payment shall be applied in accordance with
SECTION 1.5(e)(i), or as otherwise may be agreed by Requisite Lenders.
Annex A
Page 26
(e) APPLICATION OF PROCEEDS.
(i) With respect to any prepayments made by any Borrower
pursuant to SECTIONS 1.5(a) (pertaining to the European Term
Loan), 1.5(c) and 1.5(d), such prepayments shall be applied as
follows: (A) first, in payment of the European Term Loan pro rata
against all remaining Scheduled Installments thereof until the
European Term Loan shall have been prepaid in full; (B) second,
to the US Revolving Credit Advances outstanding until the same
have been repaid in full but not as a permanent reduction of the
US Revolving Loan Commitment; (C) third, to the European
Revolving Credit Advances outstanding until the same have been
repaid in full but not as a permanent reduction of the European
Revolving Loan Commitment; and (D) fourth, to all other
Obligations. Considering each type of Loan being prepaid
separately, any such prepayment shall be applied first to Index
Rate Loans of the type required to be prepaid before application
to LIBOR Loans of the type required to be prepaid, in each case
in a manner which minimizes any resulting LIBOR Breakage Fee.
Additionally, so long as no Event of Default is then in
existence, to the extent that any such prepayment would otherwise
be applied to a LIBOR Loan in a manner that would result in the
incurrence of a LIBOR Breakage Fee, then Borrower Representative
may direct that the proceeds of such prepayment be held by Agent
in a cash collateral account, acceptable to Agent and in favor of
Agent, to be applied to such LIBOR Loan on the last day of the
applicable LIBOR Period.
(ii) INTENTIONALLY RESERVED.
(f) LETTER OF CREDIT OBLIGATIONS.
(i) US LETTERS OF CREDIT. In the event any US Letters of
Credit are outstanding at the time that the US Revolving Loan
Commitment is terminated, US Borrowers shall (1) deposit with
Agent for the benefit of all US Revolving Lenders cash in an
amount equal to 105% of the aggregate outstanding US Letter of
Credit Obligations to be available to Agent to reimburse payments
of drafts drawn under such US Letters of Credit and pay any Fees
and expenses related thereto and (2) prepay the fee payable under
SECTION 1.3(c)(i) with respect to such US Letters of Credit for
the full remaining terms of such Letters of Credit. Upon
termination of any such US Letter of Credit, subject to SECTION
6.3, the unearned portion of such prepaid fee attributable to
such US Letter of Credit, along with any cash remaining in such
deposit after satisfaction of all such US Letter of Credit
Obligations (including without limitation any Fees and expenses
related thereto), shall be refunded to US Borrowers.
(ii) EUROPEAN LETTERS OF CREDIT. In the event any European
Letters of Credit are outstanding at the time that the European
Revolving Loan Commitment is terminated, European Borrower shall
(1) deposit with Agent
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for the benefit of all European Revolving Lenders cash in an
amount equal to 105% of the aggregate outstanding European Letter
of Credit Obligations to be available to Agent to reimburse
payments of drafts drawn under such European Letters of Credit
and pay any Fees and expenses related thereto and (2) prepay the
fee payable under SECTION 1.3(c)(ii) with respect to such
European Letters of Credit for the full remaining terms of such
Letters of Credit. Upon termination of any such European Letter
of Credit, subject to SECTION 6.3, the unearned portion of such
prepaid fee attributable to such European Letter of Credit, along
with any cash remaining in such deposit after satisfaction of all
such European Letter of Credit Obligations (including without
limitation any Fees and expenses related thereto), shall be
refunded to European Borrower.
Section 1.6 MATURITY.
All of the Obligations shall become due and payable as otherwise set
forth herein, but in any event all of the remaining Obligations shall become due
and payable upon termination of this Agreement. Until all Obligations have been
fully paid and satisfied (other than contingent indemnification obligations to
the extent no unsatisfied claim has been asserted), the US Revolving Loan
Commitment has been terminated, the European Revolving Loan Commitment has been
terminated and all Letters of Credit have been terminated or otherwise secured
to the satisfaction of Agent, Agent shall be entitled to retain the security
interests in the Collateral granted under the Collateral Documents and the
ability to exercise all rights and remedies available to them under the Loan
Documents and applicable laws. Notwithstanding anything contained in this
Agreement to the contrary, upon any termination (i) of the US Revolving Loan
Commitment, all of the Obligations shall be due and payable and (ii) of the
European Revolving Loan Commitment, all of the Obligations pertaining to the
European Loans shall be due and payable.
Section 1.7 LOAN ACCOUNT.
Agent shall maintain a loan account (the "LOAN ACCOUNT") on its books
to record: all Advances and the Term Loan, all payments made by Borrowers, and
all other debits and credits as provided in this Agreement with respect to the
Loans or any other Obligations. All entries in the Loan Account shall be made in
accordance with Agent's customary accounting practices as in effect from time to
time. The balance in the Loan Account, as recorded on Agent's most recent
printout or other written statement, shall, absent manifest error, be
presumptive evidence of the amounts due and owing to Agent and Lenders by
Borrowers; PROVIDED that any failure to so record or any error in so recording
shall not limit or otherwise affect any Borrower's duty to pay the Obligations.
Within five (5) days of the first of each month, Agent shall render to Borrower
Representative a monthly accounting of transactions with respect to the Loans
setting forth the balance of the Loan Account as to each Borrower for the
immediately preceding month. Unless Borrower Representative notifies Agent in
writing of any objection to any such accounting (specifically describing the
basis for such objection), within sixty (60) days after the date thereof, each
and every such accounting shall, absent manifest error, be deemed final, binding
and conclusive on
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Borrowers in all respects as to all matters reflected therein. Only those items
expressly objected to in such notice shall be deemed to be disputed by
Borrowers. Notwithstanding any provision herein contained to the contrary, any
Lender may elect (which election may be revoked) to dispense with the issuance
of Notes to that Lender and may rely on the Loan Account as evidence of the
amount of Obligations from time to time owing to it.
Section 1.8 YIELD PROTECTION; ILLEGALITY.
(a) CAPITAL ADEQUACY AND OTHER ADJUSTMENTS. In the event that any
Lender shall have determined that the adoption after the date hereof of any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy, reserve requirements or similar requirements
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy, reserve requirements or similar
requirements (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) from any central bank or governmental
agency or body having jurisdiction does or shall have the effect of increasing
the amount of capital, reserves or other funds required to be maintained by such
Lender or any corporation controlling such Lender and thereby reducing the rate
of return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder, then Borrowers shall from time to time within thirty (30)
days after notice and demand from such Lender (together with the certificate
referred to in the next sentence and with a copy to Agent) pay to Agent, for the
account of such Lender, additional amounts sufficient to compensate such Lender
for such reduction. A certificate as to the amount of such cost and showing the
basis of the computation of such cost (in reasonable detail) submitted by such
Lender to Borrower Representative and Agent shall, absent manifest error, be
final, conclusive and binding for all purposes. If a Lender becomes entitled to
claim any additional amounts pursuant to this SECTION 1.8(a), it shall promptly
notify the Borrowers thereof. Each Lender shall allocate such cost increases
among its customers reasonably and in good faith and on an equitable basis.
Notwithstanding anything to the contrary contained herein, (i) the Borrowers
will not be required to compensate any Lender for any such amounts incurred by
such Lender more than one hundred eighty (180) days prior to such Lender's
written request to the Borrowers for such compensation, and (ii) a Lender shall
not be entitled to any compensation described in this SECTION 1.8(a) unless, at
the time it requests such compensation, it is the policy or general practice of
such Lender to request compensation for comparable costs in similar
circumstances under other comparable loan agreements.
(b) INCREASED LIBOR FUNDING COSTS; ILLEGALITY. Notwithstanding
anything to the contrary contained herein, if the introduction of or any change
in any law, rule, regulation, treaty or directive (or any change in the
interpretation thereof) after the date hereof shall make it unlawful, or any
central bank or other Governmental Authority shall assert after the date hereof
that it is unlawful, for any Lender to agree to make or to make or to continue
to fund or maintain any LIBOR Loan, then, unless that Lender is able to make or
to continue to fund or to maintain such LIBOR Loan at another branch or office
of that Lender without, in that Lender's opinion, adversely affecting it or its
Loans or the income obtained therefrom, on notice thereof and demand therefor by
such Lender to Borrower Representative through Agent, (i) the obligation of such
Lender to agree to make or to
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continue to fund or maintain LIBOR Loans shall terminate and (ii) each Borrower
shall forthwith prepay in full at the end of the then current LIBOR Period (or
earlier if required by law; provided that Borrowers shall not be required to pay
the LIBOR Breakage Fee associated with such earlier payment) all outstanding
LIBOR Loans owing by such Borrower to such Lender, together with interest
accrued thereon, UNLESS Borrower Representative on behalf of such Borrower,
within five (5) Business Days after the delivery of such notice and demand,
converts all such LIBOR Loans into Index Rate Loans. If, after the date hereof,
the introduction of, change in or interpretation of any law, rule, regulation,
treaty or directive would impose or increase reserve requirements (other than as
taken into account in the definition of LIBOR) or otherwise increase the cost to
any Lender of making or maintaining a LIBOR Loan, then Borrowers shall from time
to time within thirty (30) days after notice and demand from Agent to Borrower
Representative (together with the certificate referred to in the next sentence)
pay to Agent, for the account of all such affected Lenders, additional amounts
sufficient to compensate such Lenders for such increased cost. A certificate as
to the amount of such cost (in reasonable detail) and showing the basis of the
computation of such cost submitted by Agent on behalf of all such affected
Lenders to Borrower Representative shall, absent manifest error, be final,
conclusive and binding for all purposes. If a Lender becomes entitled to claim
any additional amounts pursuant to this SECTION 1.8(b) or it anticipates that
any change in law, rule or regulation will result in a claim by it under this
SECTION 1.8(b), it shall promptly notify Borrower Representative thereof. Each
Lender shall allocate such cost increases among its customers reasonably and in
good faith and on an equitable basis. Notwithstanding anything to the contrary
contained herein, (i) Borrowers will not be required to compensate any Lender
for any such increased costs incurred by such Lender more than one hundred
eighty (180) days prior to such Lender's written request to Borrowers for such
compensation, and (ii) a Lender shall not be entitled to any compensation
described in this SECTION 1.8(b) unless, at the time it requests such
compensation, it is the policy or general practice of such Lender to request
compensation for comparable costs in similar circumstances under other
comparable loan agreements.
Section 1.9 TAXES.
(a) NO DEDUCTIONS. Any and all payments or reimbursements made
hereunder (including any payments made pursuant to SECTION 10) or under the
Notes or under any other Loan Document shall be made free and clear of and
without deduction for any and all taxes, levies, imposts, deductions or
withholdings, and all liabilities with respect thereto of any nature whatsoever
imposed by any taxing authority, excluding such taxes, levies, imposts,
deductions, withholdings or liabilities to the extent imposed on or measured by
Agent's or a Lender's net income (all such non-excluded taxes, levies, imposes,
deductions, withholdings or liabilities, "Taxes"). If any Borrower or any other
Credit Party shall be required by law to deduct any such amounts from or in
respect of any sum payable hereunder or any other Loan Document to any Lender or
Agent, then (subject to clauses (b) and (c) below) the sum payable hereunder or
such other Loan Document shall be increased as may be necessary so that, after
making all required deductions, such Lender or Agent receives an amount equal to
the sum it would have received had no such deductions been made.
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(b) CHANGES IN TAX LAWS. With respect to the Agent or any Lender,
in the event that, subsequent to the Closing Date (or, in the case of a Lender
that became a Lender after the Closing Date, subsequent to the date such Lender
became a Lender hereunder), (1) any changes in any existing law, regulation,
treaty or directive or in the interpretation or application thereof, (2) any new
law, regulation, treaty or directive enacted or any interpretation or
application thereof, or (3) compliance by Agent or any Lender with any request
or directive (whether or not having the force of law) issued after the Closing
Date by any Governmental Authority:
(i) does or shall subject Agent or any Lender to any Taxes
of any kind whatsoever with respect to this Agreement, the other
Loan Documents or any Loans made or Letters of Credit issued
hereunder, or changes the basis of taxation of payments to Agent
or such Lender of principal, fees, interest or any other amount
payable hereunder (except for net income taxes, or franchise
taxes imposed in lieu of net income taxes, imposed generally by
federal, state, local, foreign or other applicable governmental
taxing authorities with respect to interest or commitment Fees or
other Fees payable hereunder, changes in the rate of tax on the
net income of Agent or such Lender, or changes in respect of any
so-called branch profits tax); or
(ii) does or shall impose on Agent or any Lender any other
condition or increased cost in connection with the transactions
contemplated hereby or participations herein;
and the result of any of the foregoing is to increase the cost to Agent or such
Lender of issuing any Letter of Credit or making or continuing any Loan
hereunder, as the case may be, or to reduce any amount receivable hereunder,
then, in any such case, Borrowers shall promptly pay to Agent or such Lender,
upon its demand, any additional amounts necessary to compensate Agent or such
Lender, on an after-tax basis, for such additional cost or reduced amount
receivable, as determined by Agent or such Lender with respect to this Agreement
or the other Loan Documents. If Agent or such Lender becomes entitled to claim
any additional amounts pursuant to this SECTION 1.9(b), it shall promptly notify
Borrower Representative of the event by reason of which Agent or such Lender has
become so entitled. A certificate as to any additional amounts payable pursuant
to the foregoing sentence demonstrating the calculation of such additional
amounts (in reasonable detail) submitted by Agent or such Lender to Borrower
Representative (with a copy to Agent) shall, absent manifest error, be final,
conclusive and binding for all purposes. Notwithstanding the foregoing
provisions, the Borrowers will not be required to compensate any Lender for any
such amounts incurred by such Lender more than one hundred eighty (180) days
prior to such Lender's written request to the Borrowers for such compensation.
(c) FOREIGN LENDERS. On or before the Closing Date (or, in the
case of any Lender that becomes a Lender after the Closing Date, on or before
the date such Lender becomes a Lender hereunder), each Lender organized under
the laws of a jurisdiction outside the United States (a "FOREIGN LENDER") shall
provide to Borrower Representative and Agent a properly completed and executed
IRS Form W-8BEN or Form W-8ECI or other applicable
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form, certificate or document prescribed by the IRS certifying as to such
Foreign Lender's entitlement to exemption from U.S. withholding tax with respect
to payments to be made to such Foreign Lender under this Agreement and under the
Notes (a "CERTIFICATE OF EXEMPTION"). In addition, each Foreign Lender shall
deliver to Borrower Representative and Agent a Certificate of Exemption within
15 days after written request therefor by Borrower Representative or Agent and
upon the expiration or obsolescence of any Certificate of Exemption previously
delivered pursuant to this SECTION 1.9(c). If a Foreign Lender does not provide
a Certificate of Exemption to Borrower Representative and Agent in accordance
with this SECTION 1.9(c), Borrowers shall withhold taxes from payments to such
Foreign Lender at the applicable statutory rates and Borrowers shall not be
required to pay any additional amounts as a result of such withholding, unless
such Foreign Lender is unable to provide a Certificate of Exemption as a result
of a change in or amendment to law, regulation or treaty enacted or promulgated
after the Closing Date (or, in the case of a Foreign Lender that becomes a
Lender after the Closing Date, after the date such Foreign Lender became a
Lender hereunder), PROVIDED that all such withholding shall cease upon delivery
by such Foreign Lender of a Certificate of Exemption to Borrower Representative
and Agent.
Section 1.10 BORROWER REPRESENTATIVE.
Each Borrower hereby designates Holdings as its representative and
agent on its behalf for the purposes of issuing Notice of US Revolving Credit
Advances, Notice of European Revolving Credit Advances and Notice of
Conversion/Continuation, giving instructions with respect to the disbursement of
the proceeds of the Loans, selecting interest rate options, requesting Letters
of Credit, giving and receiving all other notices and consents hereunder or
under any of the other Loan Documents and taking all other actions (including in
respect of compliance with covenants) on behalf of any Borrower or Borrowers
under the Loan Documents. Borrower Representative hereby accepts such
appointment and agrees to give Borrowers prompt notice of all such actions taken
by Borrower Representative and all such notices received by Borrower
Representative; provided that the failure of Borrower Representative to give any
such notice to any Borrower shall not limit any of the obligations of any
Borrower pertaining to this Agreement or any other Loan Document. Agent and each
Lender may regard any notice or other communication pursuant to any Loan
Document from Borrower Representative as a notice or communication from all
Borrowers. Each warranty, covenant, agreement and undertaking made on its behalf
by Borrower Representative shall be deemed for all purposes to have been made by
such Borrower and shall be binding upon and enforceable against such Borrower to
the same extent as if the same had been made directly by such Borrower.
Section 1.11 EUROPEAN LENDER QUALIFICATION.
Each European Lender which is a party to this Agreement on the date
hereof represents and warrants to the European Borrower on the date hereof and
(for so long as it remains a European Lender under this Agreement) on the date
of which each European Loan is made and each European Letter of Credit is issued
and each Person who becomes a European Lender after the date of this Agreement
(and each Person to whom any European Lender assigns any of its rights under
this Agreement with respect to the European Loans)
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represents and warrants to the European Borrower on the date on which it becomes
a party to this Agreement as a European Lender and thereafter (for so long as it
remains a European Lender under this Agreement) on the date on which each
European Loan is made and each European Letter of Credit is issued, that it is a
"professional market party" (a "PMP") within the meaning of the Exemption
Regulation dated 26 June 2002 of the Ministry of Finance of The Netherlands (the
"EXEMPTION REGULATION"), as promulgated in connection with the Dutch Act on the
Supervision of Credit Institutions 1992 (WET TOEZICHT KREDIETWEZEN 1992).
SECTION 2
AFFIRMATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof and until
the Termination Date:
Section 2.1 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS.
Each Credit Party will (a) comply with and shall cause each of its
Subsidiaries to comply with (i) the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including, without
limitation, laws, rules, regulations and orders relating to taxes, employer and
employee contributions, securities, employee retirement and welfare benefits,
environmental protection matters and employee health and safety and including,
without limitation, the requirements that the European Borrower makes due
inquiry to confirm that each Lender is a PMP as required by the Exemption
Regulation and the Dutch Central Bank's Policy Guidelines (issued in relation to
the Exemption Regulation) dated 10 July 2002 (BELEIDSREGEL KERNBEGRIPPEN
MARKTTOETREDING EN HANDHAVING WTK 1992)) as now in effect and which may be
imposed in the future in all jurisdictions in which any Credit Party or any of
its Subsidiaries is now doing business or may hereafter be doing business and
(ii) the obligations, covenants and conditions contained in all Contractual
Obligations (including, without limitation, the Public Note Indenture) of such
Credit Party or any of its Subsidiaries other than those laws, rules,
regulations, orders and provisions of such Contractual Obligations the
noncompliance with which could not be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect, and (b) maintain or
obtain and shall cause each of its Subsidiaries to maintain or obtain all
licenses, qualifications and permits now held or hereafter required to be held
by such Credit Party or any of its Subsidiaries, for which the loss, suspension,
revocation or failure to obtain or renew, could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect. Subject to
SECTION 3.2, this SECTION 2.1 shall not preclude any Credit Party or its
Subsidiaries from contesting any taxes or other payments, if they are being
diligently contested in good faith in a manner which stays enforcement thereof
and if appropriate expense provisions have been recorded in conformity with
GAAP. Each Credit Party represents and warrants that it (i) is in compliance and
each of its Subsidiaries is in compliance with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority and
the obligations, covenants and conditions contained in all Contractual
Obligations other than those laws, rules, regulations, orders and provisions of
such Contractual Obligations (including, without limitation, the Public Note
Indenture) the noncompliance with which could not be reasonably expected to
have, either individually or
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in the aggregate, a Material Adverse Effect, and (ii) maintains and each of its
Subsidiaries maintains all licenses, qualifications and permits referred to
above, for which the loss, suspension, revocation or failure to obtain or renew,
could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
Section 2.2 MAINTENANCE OF PROPERTIES; INSURANCE.
Each Credit Party will maintain or cause to be maintained in good
repair, working order and condition (ordinary wear and tear and casualty events
excepted) all material properties used in the business of such Credit Party and
its Subsidiaries and will make or cause to be made all repairs, renewals and
replacements thereof as in the reasonable judgment of the Borrowers are
necessary to carry on their business. Each Credit Party will maintain or cause
to be maintained, with financially sound and reputable insurers, public
liability and property damage insurance with respect to its business and
properties and the business and properties of its Subsidiaries against loss or
damage of the kinds customarily carried or maintained by corporations of
established reputation engaged in similar businesses in similar geographic areas
and in amounts in each case reasonably acceptable to Agent and will deliver
evidence thereof to Agent. The Credit Parties will maintain business
interruption insurance covering all of the Credit Parties and providing coverage
for a period of at least six (6) months and in an amount not less than the
Dollar Equivalent of US$29,000,000. Each Credit Party shall cause Agent,
pursuant to endorsements and/or assignments in form and substance reasonably
satisfactory to Agent, to be named as lender's loss payee in the case of
casualty insurance, additional insured in the case of all liability insurance
and assignee in the case of all business interruption insurance, and with
respect to insurance pertaining to any Collateral located in Canada, containing
the standard mortgage clause approved by the Insurance Bureau of Canada, in each
case for the benefit of Agent and Lenders. Each Credit Party represents and
warrants that it and each of its Subsidiaries currently maintains all material
properties as set forth above and maintains all insurance described above. In
the event any Credit Party fails to provide Agent with evidence of the insurance
coverage required by this Agreement within ten (10) days after Agent requests in
writing such evidence, Agent may purchase insurance at such Credit Party's
expense to protect Agent's interests in the Collateral. This insurance may, but
need not, protect such Credit Party's interests. The coverage purchased by Agent
may, or may not, pay any claim made by such Credit Party or any claim that is
made against such Credit Party in connection with the Collateral. Such Credit
Party may later cancel any insurance purchased by Agent, but only after
providing Agent with evidence that such Credit Party has obtained insurance as
required by this Agreement. If Agent purchases insurance for the Collateral,
such Credit Party will be responsible for the costs of that insurance, including
interest and other Charges imposed by Agent in connection with the placement of
the insurance, until the effective date of the cancellation or expiration of the
insurance. The costs of the insurance may be added to the Obligations. The costs
of the insurance may be more than the cost of insurance such Credit Party is
able to obtain on its own.
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Section 2.3 INSPECTION; LENDER MEETING.
Each Credit Party shall permit any authorized representatives of Agent
to visit, audit and inspect any of the properties of such Credit Party and its
Subsidiaries, including its and their financial and accounting records, and to
make copies and take extracts therefrom, other than materials that are protected
by attorney-client privilege and materials Borrowers may not disclose to Agent
or any Lender under confidentiality agreements, and to discuss its and their
affairs, finances and business with its and their officers and certified public
accountants (or equivalents of certified public accountants), at such reasonable
times during normal business hours and as often as may be reasonably requested,
upon reasonable prior notice and so long as such visit and inspection does not
materially interfere with the business and the operations of the Borrowers and
their Subsidiaries taken as a whole; provided that prior to the occurrence and
continuance of an Event of Default, Borrowers shall not be required to permit
more than three (3) such visits and inspections during any year. Upon at least
twenty-four (24) hours prior notice to Borrowers, representatives of each Lender
will be permitted to accompany representatives of Agent during each visit,
inspection and discussion referred to in the immediately preceding sentence.
Without in any way limiting the foregoing, each Credit Party will participate
and will cause key management personnel of each Credit Party and its
Subsidiaries to participate in a meeting with Agent and Lenders at least once
during each year, which meeting shall be held at such time and such place as may
be reasonably requested by Agent.
Section 2.4 ORGANIZATIONAL EXISTENCE.
Except as otherwise permitted by SECTION 3.6, each Credit Party will
and will cause its Subsidiaries to at all times preserve and keep in full force
and effect its organizational existence and all rights and franchises material
to its business.
Section 2.5 ENVIRONMENTAL MATTERS.
Each Credit Party shall and shall cause each Person within its control
to: (a) conduct its operations and keep and maintain its Real Estate in
compliance with all Environmental Laws and Environmental Permits other than
noncompliance that could not reasonably be expected to have a Material Adverse
Effect; (b) implement any and all investigation, remediation, removal and
response actions that are appropriate or necessary to maintain the value and
marketability of the Real Estate or to otherwise comply with Environmental Laws
and Environmental Permits pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or Release of any Hazardous Material on,
at, in, under, above, to or from any of its Real Estate; (c) notify Agent
promptly after such Credit Party or any Person within its control becomes aware
of any violation of Environmental Laws or Environmental Permits or any Release
on, at, in, under, above, to or from any Real Estate that is reasonably likely
to result in Environmental Liabilities to a Credit Party or its Subsidiaries in
excess of the Dollar Equivalent of US$500,000 and (d) promptly forward to Agent
a copy of any written order, notice, request for information or any
communication or report received by such Credit Party or any Person within its
control in connection with any such violation or Release or any other matter
relating to any
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Environmental Laws or Environmental Permits that could reasonably be expected to
result in Environmental Liabilities in excess of the Dollar Equivalent of
US$500,000, in each case whether or not the Environmental Protection Agency or
any Governmental Authority has taken or threatened any action in connection with
any such violation, Release or other matter. During the existence of an Event of
Default, if Agent at any time has a reasonable basis to believe that there may
be a violation of any Environmental Laws or Environmental Permits by any Credit
Party or any Person under its control or any Environmental Liability arising
thereunder, or a Release of Hazardous Materials on, at, in, under, above, to or
from any of its Real Estate, that, in each case, could reasonably be expected to
have a Material Adverse Effect, then each Credit Party and its Subsidiaries
shall, upon Agent's written request (i) cause the performance of such
environmental audits including subsurface sampling of soil and groundwater, and
preparation of such environmental reports, at Borrowers' expense, as Agent may
from time to time reasonably request, which shall be conducted by reputable
environmental consulting firms reasonably acceptable to Agent and shall be in
form and substance reasonably acceptable to Agent, and (ii) permit Agent or its
representatives to have access to all Real Estate for the purpose of conducting
such environmental audits and testing as Agent deems appropriate, including
subsurface sampling of soil and groundwater. Borrowers shall reimburse Agent for
the reasonable costs of such audits and tests and the same will constitute a
part of the Obligations secured hereunder.
Section 2.6 LANDLORDS' AGREEMENTS, MORTGAGEE AGREEMENTS AND BAILEE
LETTERS.
Each Credit Party shall use reasonable efforts to obtain a landlord's
agreement, mortgagee agreement or bailee letter, as applicable, from the lessor
of each leased property, mortgagee of owned property or bailee with respect to
any warehouse, processor or converter facility or other location where
Collateral is stored or located, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee or
bailee may assert against the Collateral at that location, and shall otherwise
be reasonably satisfactory in form and substance to Agent (provided that with
respect to any location outside of the United States of America, the foregoing
shall only be required to the extent requested by Agent). With respect to such
locations or warehouse space leased or owned as of the Closing Date and
thereafter, if Agent has not received a landlord or mortgagee agreement or
bailee letter as of the Closing Date (or, if later, as of the date such location
is acquired or leased), (i) the Eligible Inventory at that location shall, in
Agent's discretion, be subject to such Reserves imposed by Agent and (ii)
Borrower Representative shall be required to give Agent prompt notice of any
default by any Credit Party under the lease, warehouse agreement, processor or
converter agreement or any other agreement pertaining to such location. After
the Closing Date, no real property or warehouse space shall be leased by any
Credit Party or its Subsidiary and no Inventory shall be shipped to a processor
or converter under arrangements established after the Closing Date without the
prior written consent of Agent (which consent, in Agent's discretion, may be
conditioned upon the exclusion from the US Borrowing Base or the European
Borrowing Base, as applicable, of Eligible Inventory at that location or the
establishment of Reserves imposed by Agent) unless (i) the aggregate fair market
and book value of assets of the Credit Parties at any time
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maintained at (x) any one such leased location or with any one such processor or
converter does not exceed the Dollar Equivalent of US$100,000 or (y) all such
leased locations and with all such processors and converters does not exceed the
Dollar Equivalent of US$500,000 or (ii) a satisfactory landlord agreement or
bailee letter, as appropriate, shall first have been obtained with respect to
such location (provided that with respect to any location outside of the United
States of America, the foregoing shall only be required to the extent reasonably
requested by Agent). Each Credit Party shall and shall cause its Subsidiaries to
timely and fully pay and perform their obligations under all leases and other
agreements with respect to each leased location or public warehouse where any
Collateral is or may be located.
Section 2.7 FURTHER ASSURANCES.
(a) Each Credit Party shall, from time to time, execute such
guaranties, financing statements, documents, security agreements and reports as
Agent or Requisite Lenders at any time may reasonably request to evidence,
perfect or otherwise implement a guaranty of the Obligations and/or a grant of a
perfected Lien (subject only to Permitted Encumbrances) on substantially all of
such Credit Party's real and personal property as security for the Obligations;
provided however that (i) the guaranties of the Non-US Credit Parties shall be
limited to the European Obligations and the security interests granted by the
Non-US Parties shall only secure the European Obligations and (ii) with respect
to Unrestricted Subsidiaries, the foregoing shall not be required to the extent
expressly provided in clause (ix) of the last paragraph of SECTION 3.6.
(b) In the event any Credit Party acquires an interest in real
property after the Closing Date, such Credit Party shall, to the extent
permitted by law with respect to Non-US Credit Parties, deliver to Agent a fully
executed mortgage or deed of trust over such real property in form and substance
reasonably satisfactory to Agent, together with such title insurance policies,
surveys, appraisals, evidence of insurance, legal opinions, environmental
assessments and other documents and certificates as shall be reasonably required
by Agent, provided, however that with respect to Unrestricted Subsidiaries, the
foregoing shall not be required to the extent expressly provided in clause (ix)
of the last paragraph of SECTION 3.6.
(c) Each Credit Party shall (i) cause each Person, upon its
becoming a Subsidiary of such Credit Party (provided that this shall not be
construed to constitute consent by any of the Lenders to any transaction not
expressly permitted by the terms of this Agreement), promptly to guaranty the
Obligations (provided that any guaranty by a Non-US Credit Party shall be
limited to the European Obligations and shall only be required to the extent
permitted by law) and to grant to Agent, for the benefit of Agent and Lenders, a
security interest in the real, personal and mixed property of such Person to
secure the Obligations (provided that any such grant by any Non-US Credit Party
shall only secure the European Obligations) and (ii) pledge, or cause to be
pledged, to Agent, for the benefit of Agent and Lenders, all of the Stock (other
than nominee shares and directors' qualifying shares required by law) of such
Subsidiary to secure the Obligations (provided that no such pledge of the Stock
of any Non-US Subsidiary shall cover more than 65% of the outstanding Stock of
such Non-US Subsidiary for the purposes of securing the US Loans and shall only
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secure the US Loans if the Stockholder of such Non-US Subsidiary is a US Credit
Party; 100% of the outstanding Stock of such Non-US Subsidiary however would
secure the European Obligations); provided, however that with respect to
Unrestricted Subsidiaries, the foregoing shall not be required to the extent
expressly provided in clause (ix) of the last paragraph of SECTION 3.6. The
documentation for such guaranty, security and pledge shall be in form and
substance reasonably satisfactory to Agent.
(d) Within thirty (30) days after the date of this Agreement (or,
upon the consent of Agent, within sixty (60) days after the date of this
Agreement), Borrowers shall (i) cause the Credit Parties formed in the Czech
Republic, Poland and Spain (collectively, the "POST-CLOSE EUROPEAN
SUBSIDIARIES") to execute all necessary documents and take all action necessary
(x) to guaranty the European Obligations, to the extent permitted by law, and
(y) to the extent reasonably requested by Agent, to grant to Agent, for the
benefit of Agent and Lenders, a security interest in the material real, personal
and mixed property of each Post-Close European Subsidiary to secure the European
Obligations and (ii) cause the Stockholders of each Post-Close European
Subsidiary to pledge to Agent, for the benefit of Agent and Lenders, all of the
Stock (other than nominee shares and directors' qualifying shares required by
law) of the Post-Close European Subsidiaries to secure the European Obligations.
The documentation for such guaranty, security and pledge shall be in form and
substance reasonably satisfactory to Agent. Additionally, without limiting the
foregoing, until such time that the Post-Close European Subsidiaries satisfy the
requirements set forth above in this SECTION 2.7(d) no loans, in excess of the
Dollar Equivalent of US$1,000,000 in the aggregate for the Post-Close European
Subsidiaries, otherwise permitted to be made by SECTION 3.1(b) to the Post-Close
European Subsidiary, will be permitted.
Section 2.8 INTENTIONALLY RESERVED.
Section 2.9 EUROPEAN MERGERS.
Within forty (40) days after the Closing Date (except to the extent
that (i) a creditor of European Borrower, of Brink Trekhaken B.V. or of European
Second Tier Dutch Holdings, as applicable, files a petition with the applicable
court to oppose the merger proposals as set out in article 2:316 paragraph 2 of
the Dutch Civil Code and as a result of such filing the mergers are not
permitted by law; and if any such petition is filed, the Credit Parties will use
their best efforts to have such petition rescinded and have the mergers
completed as soon as possible thereafter, and (ii) the current right of pledge
on the shares in the share capital of European Borrower, vested by a deed of
pledge of shares executed on the thirtieth day of October nineteen hundred and
ninety-six, before a deputy of Hendrik van Wilsum, civil law notary in
Amsterdam, The Netherlands, has not been released; each Credit Party agrees to
use its best efforts to effectuate such release), Brink Trekhaken B.V. shall
merge into European Borrower and European Borrower shall merge into European
Second Tier Dutch Holdings, resulting in European Second Tier Dutch Holdings
being the ultimate surviving entity of these mergers. Each such merger shall be
consummated in a manner and pursuant to terms satisfactory to Agent, unless
contrary to Dutch law. After the merger of European Borrower and European Second
Tier Dutch Holdings, the "European Borrower" shall be European Second Tier Dutch
Holdings and all provisions (including but not limited
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to any representations, covenants and obligations of Brink B.V. as European
Borrower) of this Agreement shall following such mergers be construed
accordingly. All of the Credit Parties consent to each such merger and agree
that such mergers will not limit any obligations of any Credit Party under any
Loan Document.
Section 2.10 INTELLECTUAL PROPERTY CROSS LICENSE.
Each Credit Party acknowledges and hereby agrees that, on the Closing
Date and thereafter, each other Credit Party may make use of Intellectual
Property owned from time to time by such Credit Party in the ordinary course of
business, pursuant to licenses hereby granted under this SECTION 2.10 from such
Credit Party (the "AFFILIATE LICENSES"). Each Credit Party hereby agrees that,
in the event of any foreclosure by Agent or Lenders pursuant to SECTION 6.3, or
in the event of any bankruptcy, insolvency or similar proceeding involving any
Credit Party, to the extent required by Agent, such Credit Party shall maintain
in existence the Affiliate Licenses on the same terms and conditions, or on no
less favorable terms and conditions, than those license terms and conditions in
existence on the date of foreclosure, bankruptcy, insolvency or similar
proceeding and Agent is hereby authorized to utilize, transfer and/or assign the
Affiliated Licenses in connection with such foreclosure, bankruptcy, insolvency
or similar proceeding; provided, that the license grant provided for herein
shall be limited to use by the applicable Credit Party for the conduct of its
business operations as conducted upon the date of foreclosure, or the
commencement of a bankruptcy, insolvency or similar proceeding, as applicable,
and for no other purpose. Within ninety (90) days after the Original Closing
Date, Borrowers shall cause each of the Credit Parties to more formally
memorialize the above arrangements in writing in a manner reasonably acceptable
to Agent, it being understood that the terms and conditions of any Affiliate
License may be amended from time to time in accordance with the reasonable
business needs of the Credit Parties party thereto so long as, except as
expressly contemplated by a license arrangement that has been accepted by Agent
as provided above, each Credit Party continues to have a license to use the
Intellectual Property of each other Credit Party.
SECTION 3
NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that from and after the date hereof until the
Termination Date:
Section 3.1 INDEBTEDNESS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries directly or indirectly to create, incur, assume, or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness
(other than pursuant to a Contingent Obligation permitted under SECTION 3.4)
except:
(a) the Obligations;
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(b) subject to SECTION 2.7(d) and so long as no such loans are
made to an Unrestricted Subsidiary, intercompany Indebtedness arising from loans
made by:
(i) Wholly-owned Subsidiaries of Ultimate Holdings to
Ultimate Holdings for the purposes described in SECTIONS 3.5(a),
3.5(e), 3.5(i) and 3.5(j) (subject to the dollar restrictions set
forth in such Sections);
(ii) US Borrowers to their Wholly-owned US Subsidiaries (and
to the extent expressly consented to in any Inter-Subsidiary Loan
Notice, any Wholly-owned Subsidiary of either US Borrower to any
Wholly-owned US Subsidiary of such Subsidiary) to fund working
capital and general corporate needs of such Subsidiaries in the
ordinary course of business;
(iii) US Borrowers to their Wholly-owned Non-US Subsidiaries
(and to the extent expressly consented to in any Inter-Subsidiary
Loan Notice, any Wholly-owned Subsidiary of either US Borrower to
any Wholly-owned Non-US Subsidiary of such Subsidiary) to fund
working capital and general corporate needs of such Subsidiaries
in the ordinary course of business in an aggregate amount not to
exceed the Dollar Equivalent of US$10,000,000 (or the Dollar
Equivalent of US$15,000,000 so long as, after giving effect to
such loan, (x) average daily US Borrowing Availability for the
90-day period preceding the then present date exceeded
US$20,000,000 and (y) no Default or Event of Default was in
existence) at any time outstanding reduced by the aggregate
amount invested pursuant to SECTION 3.3(d) which is applicable to
this clause (iii);
(iv) US Borrowers to European Borrower and to Wholly-owned
Subsidiaries of European Borrower or of European Second Tier
Dutch Holdings (and to the extent expressly consented to in any
Inter-Subsidiary Loan Notice, any Wholly-owned Subsidiary of
either US Borrower to any Wholly-owned Subsidiary of European
Borrower or of European Second Tier Dutch Holdings) to fund
working capital and general corporate needs of such Persons in
the ordinary course of business in an aggregate amount not to
exceed the Dollar Equivalent of US$4,000,000 at any time
outstanding reduced by the aggregate amount invested pursuant to
SECTION 3.3(d) which is applicable to this clause (iv);
(v) European Borrower to Wholly-owned Subsidiaries of
European Borrower or of European Second Tier Dutch Holdings (and
to the extent expressly permitted in any Inter-Subsidiary Loan
Notice, any Wholly-owned Subsidiary of European Borrower to any
Wholly-owned Subsidiary of European Borrower or of European
Second Tier Dutch Holdings) to fund working capital and general
corporate needs of such Subsidiaries in the ordinary course of
business in an aggregate amount not to exceed the Dollar
Equivalent of US$7,500,000 (or the Dollar Equivalent of
US$10,000,000 so long as, after giving effect to such loan, (x)
average daily European Borrowing
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Availability for the 90-day period preceding the then present
date exceeded 10,000,000 Euros and (y) no Default or Event of
Default was in existence) at any time outstanding reduced by the
aggregate amount invested pursuant to SECTION 3.3(d) which is
applicable to this clause (v);
(vi) European Borrower to US Borrowers or Wholly-owned US
Subsidiaries of US Borrowers (and to the extent expressly
consented to in any Inter-Subsidiary Loan Notice, any
Wholly-owned Subsidiary of European Borrower to US Borrowers or
any Wholly-owned US Subsidiary of US Borrowers) to fund working
capital and general corporate needs of such Persons in the
ordinary course of business in an aggregate amount not to exceed
the Dollar Equivalent of US$5,000,000 at any time outstanding
reduced by the aggregate amount invested pursuant to SECTION
3.3(d) which is applicable to this clause (vi) (additionally, to
the extent that after giving effect to any payment under the
Public Note Indenture permitted by SECTION 3.5(c), US Borrowing
Availability plus the aggregate amount of cash and Cash
Equivalents on hand of Ultimate Holdings, Holdings, US SportRack
Holdings, US Borrowers and the Subsidiaries of US Borrowers would
be less than the Dollar Equivalent of US$12,500,000, European
Borrower may make a loan to Holdings on the date such payment is
due in the amount by which such Availability plus such amount of
cash and Cash Equivalents is less than the Dollar Equivalent of
US$12,500,000; provided that such intercompany loan shall be
repaid as soon as practicable after, and to the extent that
(after giving effect to such repayment), such Availability plus
the amount of such cash and Cash Equivalents exceeds the Dollar
Equivalent of US$12,500,000);
(vii) to the extent that an intercompany loan is permitted
to be made to a Wholly-owned Subsidiary pursuant to any of
clauses (ii), (iii), (iv), (v) or (vi) above, an intercompany
loan may be made to a non-Wholly-owned Subsidiary (as opposed to
a Wholly-owned Subsidiary) established, created or acquired after
the Closing Date in accordance with SECTION 3.13(ii) or to an
Unfavorable Jurisdiction Credit Party (solely for the purposes of
this SECTION 3.1(b), all Unfavorable Jurisdiction Credit Parties
shall be deemed to be non-Wholly-owned Subsidiaries) to fund
working capital and general corporate needs of such
non-Wholly-owned Subsidiary or such Unfavorable Jurisdiction
Credit Party, as applicable (such intercompany loans, to any
non-Wholly-owned Subsidiary or Unfavorable Jurisdiction Credit
Party shall be considered an intercompany loan to a Wholly-owned
Subsidiary solely for the purposes of making the calculations set
forth in clauses (ii), (iii), (iv), (v) and (vi) above, as
applicable), so long as (x) the aggregate amount of all
outstanding intercompany loans to non-Wholly-owned Subsidiaries
and Unfavorable Jurisdiction Credit Parties does not exceed the
Dollar Equivalent of US$3,500,000 at any time outstanding,
reduced by the aggregate amount invested in non-Wholly-owned
Subsidiaries and Unfavorable Jurisdiction Credit Parties pursuant
to SECTION 3.3(d) which is applicable to this clause (vii)
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and (y) no additional intercompany Indebtedness under this clause
(vii) may be incurred during the existence of an Event of
Default; and
(viii) Ultimate Holdings to its Subsidiaries, from funds
that Ultimate Holdings receives from its Stockholders
concurrently with the making of such intercompany loan, so long
as such intercompany loans are unsecured, no payments are
permitted on such intercompany loans until all of the Obligations
have been paid in full and the Commitments have been terminated
and such intercompany loans are subordinated to the Obligations
in a manner acceptable to Agent;
PROVIDED, HOWEVER, that all such Indebtedness referred to in the foregoing
clause (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) shall be evidenced by
promissory notes ("INTERCOMPANY NOTES") having terms reasonably satisfactory to
Agent, the sole originally executed counterparts of which shall be pledged and
delivered to Agent, for the benefit of Agent and Lenders, as security for the
Obligations;
(c) intercompany Indebtedness arising from loans made by a Credit
Party to an Unrestricted Subsidiary to fund working capital and general
corporate needs of such Unrestricted Subsidiary in an aggregate amount not to
exceed the Dollar Equivalent of US$1,000,000 at any time outstanding reduced by
the aggregate amount invested pursuant to SECTION 3.3(d) which is applicable to
this clause; PROVIDED, HOWEVER, that (i) all such Indebtedness referred to in
this clause (c) shall be evidenced by Intercompany Notes having terms reasonably
satisfactory to Agent, the sole originally executed counterparts of which shall
be pledged and delivered to Agent, for the benefit of Agent and Lenders, as
security for the Obligations and (ii) no additional intercompany Indebtedness
under this clause (c) may be incurred during the existence of an Event of
Default;
(d) the Public Note Debt;
(e) the Subordinated Seller PIK Note Debt;
(f) the Seller Contingent Payment Debt;
(g) Indebtedness incurred in the ordinary course of business not
to exceed the Dollar Equivalent of US$10,000,000 in the aggregate at any time
outstanding secured by purchase money Liens or incurred with respect to Capital
Leases;
(h) Indebtedness outstanding on the date hereof and listed on
Schedule 3.1 and any refinancings, refundings, renewals or extensions thereof by
the applicable Credit Party;
(i) Indebtedness incurred to repurchase equity issued by Ultimate
Holdings or its direct parent to employees, consultants, agents, officers and
directors of a Credit Party, to the extent such repurchase is permitted by
SECTION 3.5(j);
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(j) unsecured Indebtedness which is subordinated to the
Obligations in a manner satisfactory to Agent and Requisite Lenders and which is
incurred in connection with the consummation of any Permitted Acquisition and
which is owing to a seller of the Stock or assets sold pursuant to such
Permitted Acquisition;
(k) Permitted Acquisition Earnouts;
(l) unsecured indebtedness of Ultimate Holdings owing to its
Stockholders which is subordinated to the Obligations in a manner satisfactory
to Agent and Requisite Lenders and contains terms and conditions which are
satisfactory to Agent and Requisite Lenders, including without limitation not
providing for any scheduled payments whatsoever (other than non-cash payment in
kind payments) until after the Termination Date (the "SUBORDINATED ULTIMATE
HOLDINGS PIK DEBT"); and concurrently with the receipt of proceeds from such
Subordinated Ultimate Holdings PIK Debt, Ultimate Holdings may transfer the
proceeds of such Subordinated Ultimate Holdings PIK Debt to its Subsidiaries as
capital contributions or intercompany loans; and
(m) any other unsecured Indebtedness owing to any non-Credit Party
not to exceed the Dollar Equivalent of US$10,000,000 in the aggregate at any
time outstanding; provided that the aggregate amount of such Indebtedness (or,
without duplication, any Contingent Obligations pertaining to such Indebtedness)
at any time owing (or potentially owing with respect to Contingent Obligations)
by European Ultimate Holdings or any of its Subsidiaries shall not exceed the
Dollar Equivalent of US$6,000,000; provided that (i) no additional Indebtedness
under this clause (m) may be incurred during the continuance of an Event of
Default and (ii) up to the Dollar Equivalent of US$5,000,000 in the aggregate at
any time outstanding of Indebtedness of any Unrestricted Subsidiary may be
secured (it being understood that no other Credit Party shall have any
Contingent Obligations with respect to such Indebtedness) by the assets of such
Unrestricted Subsidiary in favor of the Person that funded the acquisition of
such Credit Party as contemplated in the proviso to clause (ix) of the last
paragraph of SECTION 3.6.
Section 3.2 LIENS AND RELATED MATTERS.
(a) NO LIENS. The Credit Parties shall not and shall not cause or
permit their Subsidiaries to directly or indirectly create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of such
Credit Party or any such Subsidiary, whether now owned or hereafter acquired, or
any income or profits therefrom, except Permitted Encumbrances (including,
without limitation, those Liens constituting Permitted Encumbrances existing on
the date hereof and renewals and extensions thereof, as set forth on SCHEDULE
3.2).
(b) NO NEGATIVE PLEDGES. The Credit Parties shall not and shall
not cause or permit their Subsidiaries to directly or indirectly enter into or
assume any agreement (other than the Loan Documents) prohibiting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, except (i) pursuant to the terms of the Public Note
Indenture, (ii) pursuant to the documentation evidencing the
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Indebtedness permitted by SECTION 3.1(g) so long as such prohibition only
applies to the assets subject to such purchase money Liens or Capital Leases and
no other assets whatsoever, (iii) negative pledges contained in asset sales
agreements permitted by this Agreement so long as such negative pledges only
apply to the assets being sold under such asset sales agreements, (iv) negative
pledges contained in that certain Escrow Agreement dated the Original Closing
Date, among US SportRack Holdings, Bank One, NA, Bank One Trust Company,
National Association and ▇▇▇▇▇/AAS LLC (as such Escrow Agreement was in effect
on the Original Closing Date) so long as any such negative pledges only relate
to the property that is subject to the escrow under such Escrow Agreement, and
(v) negative pledges granted by Unrestricted Subsidiaries or their direct parent
to the holders of secured Indebtedness owing by such Unrestricted Subsidiaries
to the extent that such Indebtedness is permitted by SECTION 3.1(m) and such
negative pledges only apply to the assets or Stock of such Unrestricted
Subsidiary and not to any other assets or Stock whatsoever.
(c) NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO BORROWERS. The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to: (i) pay dividends or make any other distribution on
any of such Subsidiary's Stock owned by any Borrower or any other Subsidiary
(other than encumbrances or restrictions requiring that any payment of dividends
or distributions be made on a pro rata basis to the holders of such Stock); (ii)
pay any Indebtedness owed to any Borrower or any other Subsidiary; (iii) make
loans or advances to any Borrower or any other Subsidiary; or (iv) except for
restrictions on the transfers of specific assets subject to Capital Leases or
other leases or purchase money obligations, transfer any of its property or
assets to any Borrower or any other Subsidiary, except as provided (A) in this
Agreement, (B) in the Public Note Indenture, (C) in the terms (existing as of
the time of the applicable Permitted Acquisition) of the Indebtedness of a
Target that is assumed in connection with a Permitted Acquisition so long as (x)
such Indebtedness is not incurred by any Person in connection with or
anticipation or contemplation of such Permitted Acquisition and (y) such terms
are not applicable to any Person, or the properties or assets of any Person,
other than the Target or the properties or assets of the Target so acquired, (D)
in the terms of Indebtedness of a non-Wholly-owned Subsidiary or an Unfavorable
Jurisdiction Credit Party so long as (x) no proceeds of any Loans are directly
or indirectly loaned, invested or otherwise transferred to such non-Wholly-owned
Subsidiary or Unfavorable Credit Party, (y) none of the consideration paid in
connection with the acquisition of such non-Wholly-owned Subsidiary or such
Unfavorable Jurisdiction Credit Party was funded directly or indirectly with the
proceeds of any Loans and (z) such terms are not applicable to any Person, or
the properties or assets of any Person, other than to such non-Wholly-owned
Subsidiary or Unfavorable Jurisdiction Credit Party and (E) in the terms of
secured Indebtedness of Unrestricted Subsidiaries so long as (x) such
Indebtedness is permitted by SECTION 3.1(m) and (y) such terms are not
applicable to any Person, or the properties or assets of any Person, other than
such Unrestricted Subsidiary or the properties or assets of such Unrestricted
Subsidiary.
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Section 3.3 INVESTMENTS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly make or own any Investment in any Person
except:
(a) any Credit Party may make and own Investments in Cash
Equivalents subject to Control Agreements in favor of Agent; PROVIDED that such
Cash Equivalents are not subject to setoff rights; PROVIDED, FURTHER, such
Control Agreements shall only be required with respect to Cash Equivalents of
Non-US Credit Parties to the extent reasonably requested by Agent and as
required by SECTION 3.14;
(b) the Credit Parties may make intercompany loans to each other
to the extent permitted under SECTIONS 3.1(b) and (c);
(c) Borrowers and their Subsidiaries may make loans and advances
to employees for moving, entertainment, travel and other similar expenses in the
ordinary course of business consistent with past practices not to exceed the
Dollar Equivalent of US$1,000,000 in the aggregate at any time outstanding;
(d) in lieu of making intercompany loans pursuant to SECTIONS
3.1(b) and (c), the Credit Parties may make Investments in the form of capital
contributions to each other to the extent that if such capital contribution was
made as an intercompany loan it would be permitted by SECTIONS 3.1(b) and (c)
(the amount of any such capital contribution shall be considered to be an
outstanding intercompany loan for the purposes of making the calculations set
forth in SECTIONS 3.1(b) and (c), as applicable);
(e) concurrently upon receipt of capital contribution funds from
its Stockholders, Ultimate Holdings may further contribute such funds to its
Subsidiaries as capital contributions or intercompany loans;
(f) [intentionally reserved];
(g) Investments consisting of the extension of trade credit by a
Borrower or one of its Subsidiaries made in the ordinary course of business
consistent with past practices;
(h) Investments made in exchange for accounts receivable of a
Borrower or one of its Subsidiaries arising in the ordinary course of business
which are, in the good faith judgment of such Borrower or such Subsidiary,
substantially uncollectible;
(i) Investments (including debt obligations, Stock or other
property) to the extent received from another Person by a Credit Party in
connection with (i) any bankruptcy, reorganization, composition, readjustment of
debt or workout of any supplier or customer of any such Credit Party in
settlement of delinquent obligations of, and other disputes with, such suppliers
or customers and (ii) the satisfaction or enforcement of indebtedness or claims
due or owing to a Credit Party or as security for any such indebtedness or
claim, in each case arising in the ordinary course of business;
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(j) Investments existing on the date hereof and set forth on
SCHEDULE 3.3 and all extensions or renewals of such existing Investments by the
applicable Credit Party on substantially similar terms;
(k) Contingent Obligations permitted by SECTION 3.4;
(l) Investments consisting of promissory notes and other noncash
consideration received as proceeds of Asset Dispositions permitted by SECTION
3.7;
(m) Investments consisting of acceptance and endorsements of
checks or other negotiable instruments for deposit or collection in the ordinary
course of business;
(n) each Credit Party may make Investments to consummate a
Permitted Acquisition;
(o) [intentionally reserved]; and
(p) other Investments in the ordinary course of business not to
exceed the Dollar Equivalent of US$4,000,000 at any time outstanding; provided
that this clause (p) shall not apply to Investments in any Credit Party.
Section 3.4 CONTINGENT OBLIGATIONS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly create or become or be liable with
respect to any Contingent Obligation except:
(a) Letter of Credit Obligations;
(b) [intentionally reserved];
(c) those resulting from endorsement of negotiable instruments for
collection in the ordinary course of business;
(d) those existing on the Closing Date and described in SCHEDULE
3.4 and any refinancings, refundings, renewals or extensions thereof by the
applicable Credit Party;
(e) those arising under indemnity agreements to title insurers to
cause such title insurers to issue to Agent mortgagee title insurance policies;
(f) those arising with respect to customary indemnification
obligations incurred in connection with Asset Dispositions permitted hereunder;
(g) those incurred in the ordinary course of business with respect
to surety and appeal bonds, performance and return-of-money bonds and other
similar obligations not exceeding at any time outstanding the Dollar Equivalent
of US$4,000,000 in aggregate liability;
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(h) those incurred with respect to Indebtedness permitted by
SECTION 3.1 provided that (i) any such Contingent Obligation is subordinated to
the Obligations to the same extent, if any, as the Indebtedness to which it
relates is subordinated to the Obligations, (ii) no Non-US Credit Party shall
have any Contingent Obligation with respect to the Public Note Debt, (iii) no
Credit Party shall have any Contingent Obligation with respect to the
Subordinated Seller PIK Note Debt or the Seller Contingent Payment Debt except
to the extent such Credit Party is permitted to have any Contingent Obligations
with respect to the Public Note Debt as provided in the foregoing clause (ii),
(iv) no Credit Party other than Ultimate Holdings shall have any Contingent
Obligation with respect to the Subordinated Ultimate Holdings PIK Debt and (v)
no Credit Party shall have any Contingent Obligation with respect to any
Indebtedness of any Unrestricted Subsidiary;
(i) those existing under the Acquisition Agreement, as it is in
effect on the Original Closing Date;
(j) reimbursement obligations with respect to irrevocable letter
of credit No. 05151630, dated January 6, 2000 and amended on June 11, 2002,
issued by Bank One, Michigan on behalf US SportRack Holdings in favor of ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ in the stated amount of US$8,325,000; provided that such
reimbursement obligations are collateralized in a manner satisfactory to Agent
and are paid solely from cash or certificates of deposits provided by Sellers;
(k) those arising with respect to customary indemnification
provided to officers and directors of any Credit Party in their capacity as
officers and directors of such Credit Party;
(l) those arising with respect to customary indemnification
provided to investment banks, accountants, consultants and other professionals
in connection with potential Permitted Acquisitions or debt or equity placements
that would be permitted hereunder;
(m) those incurred in the ordinary course of business and not for
speculative purposes to fix or hedge foreign currency risk; and
(n) any other Contingent Obligation not expressly permitted by
clauses (a) through (m) above, so long as any such other Contingent Obligations,
in the aggregate at any time outstanding, do not exceed the Dollar Equivalent of
US$5,000,000 (it being understood that this clause (n) shall not affect any of
the restrictions set forth in clause (h) above).
Section 3.5 RESTRICTED PAYMENTS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly declare, order, pay, make or set apart
any sum for any Restricted Payment, except that:
(a) any Wholly-owned Subsidiary of Ultimate Holdings may make
payments and distributions to Ultimate Holdings that are used concurrently by
Ultimate
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Holdings to pay federal, state, local or other income taxes then due and owing,
franchise taxes and other similar licensing expenses and administrative expenses
incurred in the ordinary course of business consistent with past practices;
PROVIDED that each such Subsidiary's aggregate contribution to taxes as a result
of the filing of a consolidated or combined return by Ultimate Holdings shall
not be greater, nor the aggregate receipt of tax benefits less, than they would
have been had such Subsidiary not filed a consolidated or combined return with
Ultimate Holdings;
(b) (i) Wholly-owned Subsidiaries of a Borrower may make
Restricted Payments to such Borrower or to the other Stockholders of such
Wholly-owned Subsidiary and (ii) non-Wholly-owned Subsidiaries of a Borrower may
make Restricted Payments to the Stockholders of such non-Wholly-owned Subsidiary
so long as the pro-rata amount (based on each Stockholder's then respective
ownership interest in the Stock of such non-Wholly-owned Subsidiary) of
Restricted Payments received by its Stockholders that are Credit Parties is
equal to or more than the pro-rata amount of the Restricted Payment then being
made to its other Stockholders that are not Credit Parties;
(c) the US Credit Parties may make mandatory payments required
under the Public Note Indenture, including without limitation, (i) regularly
scheduled semi-annual interest payments on the Initial Public Notes on June 15
and December 15 of each year (commencing with December 15, 2003), (ii) Permitted
Prepayments of the Public Note Debt and (iii) mandatory repurchases on the
Initial Public Note Debt pertaining to Asset Dispositions pursuant to Sections
3.10 and 4.10 of the Initial Public Note Indenture; notwithstanding the
foregoing, no such mandatory repurchases (or any offer to make such repurchases)
on the Initial Public Note Debt are permitted prior to the date that all of the
Term Loans have been paid in full;
(d) [intentionally reserved];
(e) with respect to the Seller Contingent Payment Debt, US Credit
Parties may make cash payments of the Seller Contingent Payment Debt when due
pursuant to the terms of Section 2.4(c) of the Acquisition Agreement (as such
Section 2.4(c), together with any other sections of the Acquisition Agreement
applicable to the terms thereof, are in effect on the Original Closing Date);
provided that (i) within ten (10) Business Days prior to the making of such
payment, Borrower Representative has delivered to Agent (x) with respect to any
payment of any "Yearly Contingent Payment" (as defined in the Acquisition
Agreement, as in effect on the Original Closing Date), a certified true and
correct copy of the Contingent Payment Statement (as defined in the Acquisition
Agreement, as in effect on the Original Closing Date) indicating the amount of
the Seller Contingent Payment Debt then due along with reasonably detailed
calculations of such amount and (y) with respect to any payment of the Seller
Contingent Payment Debt pursuant to the last three sentences of Section 2.4(c)
of the Acquisition Agreement (as such Section 2.4(c), together with any other
sections of the Acquisition Agreement applicable to the terms thereof, are in
effect on the Original Closing Date), a Compliance Certificate evidencing
compliance with the following clause (ii); and (ii) after giving effect to such
payment, (x) Borrowers are in compliance on a pro forma basis
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with the covenants set forth in SECTION 4 recomputed for the most recently ended
quarter for which information is available and (y) no Default or Event of
Default is then in existence;
(f) with respect to the Seller Contingent Payment Debt, to the
extent that cash payments of the regularly scheduled yearly payments of the
Seller Contingent Payment Debt are not permitted by SECTION 3.5(e), Ultimate
Holdings may make a payment in kind (as opposed to payment in cash or payment in
other property) payment of such amount (i) by issuing, or causing US Borrowers
to issue, a Subordinated Seller Contingent Payment Note pursuant to the terms of
Section 2.4(c) of the Acquisition Agreement (as such Section, together with any
other sections of the Acquisition Agreement applicable to the terms thereof, are
in effect on the Original Closing Date) and (ii) by increasing the aggregate
principal amount of the Subordinated Seller PIK Note pursuant to the terms of
Section 2.4(c) of the Acquisition Agreement (as such Section, together with any
other sections of the Acquisition Agreement applicable to the terms thereof, are
in effect on the Original Closing Date);
(g) Credit Parties may make (i) regularly scheduled payment in
kind (as opposed to payment in cash or payment in other property) payments
pursuant to the terms of the third paragraph of the Subordinated Seller PIK
Notes (as such paragraph, together with any other sections of the Subordinated
Seller PIK Notes applicable to the terms thereof, are in effect on the Original
Closing Date) and pursuant to the third paragraph of the Subordinated Seller
Contingent Payment Notes, if any, in each case, on March 31, June 30, September
30 and December 31 of each year, commencing June 30, 2003 and (ii) to the extent
permitted under Section 2.2(a)(v) of the Subordinated Seller PIK Notes and
Section 2.2(a)(v) of the Subordinated Contingent Payment Notes, payments in cash
or other property not to exceed Euro 45,379 with respect to such Subordinated
Seller PIK Note or Subordinated Contingent Payment Note in any twelve month
period, together with any interest accrued on such amount;
(h) with respect to a Permitted Acquisition Earnout, the
applicable Credit Party may make payments of such Permitted Acquisition Earnout
when due to the holder of such Permitted Acquisition Earnout; provided that (i)
within ten (10) Business Days prior to the making of such payment, Borrower
Representative has delivered to Agent a certified true and correct copy of a
calculation evidencing, in reasonable detail, the amount of such Permitted
Acquisition Earnout then due and (ii) after giving effect to such payment, (w)
Borrowers are in compliance on a pro forma basis with the covenants set forth in
SECTION 4 recomputed for the most recently ended quarter for which information
is available, (x) no Default or Event of Default is then in existence, (y) US
Borrower Availability plus European Borrower Availability exceeds the Dollar
Equivalent of US$5,000,000 and (z) the performance of the Credit Parties
acquired, established or created in connection with the related Permitted
Acquisition meets or exceeds the performance contemplated by the Acquisition Pro
Forma and Acquisition Projections each pertaining to such Permitted Acquisition;
(i) any Wholly-owned Subsidiary of Ultimate Holdings may pay
directly, or may make payments and distributions to Ultimate Holdings that are
used concurrently by
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Ultimate Holdings to pay, reasonable out-of-pocket expenses and quarterly
management fees payable pursuant to the Management Services Agreement; provided
that (i) such management fees shall not exceed the Dollar Equivalent of
US$995,000 per quarter (plus the Dollar Equivalent of one (1.00%) percent per
quarter of the amount of equity contributions made directly or indirectly by CHP
in Ultimate Holdings after the Closing Date, to the extent (x) that Ultimate
Holdings has further contributed such amounts as equity contributions to
Borrowers and (y) Borrower Representative has given Agent notice of each such
contribution by CHP on or around the time that it is made) in the aggregate
during any Fiscal Quarter, and (ii) after giving effect to such payment of
management fees, (x) Borrowers are in compliance on a pro forma basis with the
covenants set forth in SECTION 4 recomputed for the most recently ended quarter
for which information is available and (y) no Event of Default is then in
existence (notwithstanding the foregoing, in the event that the Credit Parties
(A) are prohibited from paying the management fees contemplated under this
SECTION 3.5(i) during any Fiscal Quarter as a result of a failure to satisfy the
conditions set forth in this SECTION 3.5(i) in such Fiscal Quarter, Credit
Parties may make such payments if and when each of the conditions set forth in
this SECTION 3.5(i) are satisfied as of the time of eventual payment or (B)
voluntarily elect not to pay the management fees contemplated under this SECTION
3.5(i) during any Fiscal Quarter in which they have satisfied the conditions set
forth in this SECTION 3.5(i), Credit Parties may make such payments during any
subsequent Fiscal Quarter);
(j) any Wholly-owned Subsidiary of Ultimate Holdings may make
payments and distributions to Ultimate Holdings that are used concurrently by
Ultimate Holdings to repurchase Stock owned by employees of a Credit Party whose
employment with such Credit Party has been terminated, provided that the
aggregate amount of such distributions (along with the amount of any loans made
as contemplated by SECTION 3.1(i)) shall not exceed Dollar Equivalent of
US$2,000,000 in any Fiscal Year or Dollar Equivalent of US$5,000,000 during the
term of this Agreement and provided that no Event of Default exists at the time
of such Restricted Payment or would occur as a result thereof;
(k) [intentionally reserved]; and
(l) the Credit Parties may pay (i) the "Post-Closing Purchase
Price Adjustment" when due in accordance with Section 2.3 of the Acquisition
Agreement, as such Section, together with any other sections of the Acquisition
Agreement applicable to the terms thereof, are in effect on the Original Closing
Date, (ii) indemnity payments when due in accordance with Section 8.9(a) and
Section 9.3 of the Acquisition Agreement (and any other provisions in the
Acquisition Agreement applicable to the indemnity obligations under such Section
8.9(a) and Section 9.3) as in effect on the Original Closing Date, (iii)
payments in respect of tax refunds and tax credits when due in accordance with
(and to the extent required under) Section 8.6 of the Acquisition Agreement, as
such Section, together with any other sections of the Acquisition Agreement
applicable to the terms thereof, are in effect on the Original Closing Date,
(iv) tax payments when due in accordance with (and to the extent required under)
Section 8.5 and Section 8.7 of the Acquisition Agreement, as such Sections,
together with any other sections of the Acquisition Agreement applicable to the
terms thereof, are in effect on the Original Closing Date, (v) payments in
respect of insurance to the extent required under Section 8.9(b) of the
Acquisition Agreement, as such Section, together
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with any other sections of the Acquisition Agreement applicable to the terms
thereof, are in effect on the Original Closing Date, (vi) payments in respect of
costs and expenses to the extent required under Section 12.5 of the Acquisition
Agreement, as such Section, together with any other sections of the Acquisition
Agreement applicable to the terms thereof, are in effect on the Original Closing
Date, (vii) payments of the Netherlands capital tax when due in accordance with
(and to the extent required under) Section 2.7 of the Acquisition Agreement, as
such Section, together with any other sections of the Acquisition Agreement
applicable to the terms thereof, are in effect on the Original Closing Date,
(viii) payments in respect of the facility located in Les Naux, Betheny (Marne),
France when due in accordance with (and to the extent required under) Section
7.3 of the Acquisition Agreement, as such Section, together with any other
sections of the Acquisition Agreement applicable to the terms thereof, are in
effect on the Original Closing Date, (ix) payments in respect of reasonable
out-of-pocket expenses incurred in connection with the delivery of
certifications and other documents required to be delivered pursuant to Section
12.15 of the Acquisition Agreement, as such Section, together with any other
sections of the Acquisition Agreement applicable to the terms thereof, are in
effect on the Original Closing Date and (x) payments and distributions (1) to
the extent required under Section 12.16 of the Acquisition Agreement, as such
Section, together with any other sections of the Acquisition Agreement
applicable to the terms thereof, are in effect on the Original Closing Date and
(2) to the extent relating to payments owing to the Sellers that are otherwise
expressly permitted to made under the terms hereof.
Section 3.6 RESTRICTION ON FUNDAMENTAL CHANGES.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly: (a) amend, modify or waive any term or
provision of its organizational documents, including its articles of
incorporation, articles of association, certificates of designations pertaining
to preferred stock, by-laws, partnership agreement, operating agreement or any
shareholders' agreements (except in a manner that would not conflict with any
provision of any Loan Document and would not be adverse in any material respect
to Lenders) unless required by law; (b) enter into any transaction of merger,
amalgamation or consolidation except, (i) upon not less than five (5) Business
Days prior written notice to Agent, (w) any Wholly-owned US Subsidiary of a US
Borrower may be merged with or into such US Borrower (PROVIDED that such US
Borrower is the surviving entity), (x) any Wholly-owned Non-US Subsidiary (other
than an Unrestricted Subsidiary) of European Borrower may be merged with or into
European Borrower (PROVIDED that European Borrower is the surviving entity), (y)
any Wholly-owned Subsidiary of a Borrower may be merged or amalgamated with or
into another Wholly-owned Subsidiary of such Borrower (PROVIDED that (A) both
such Subsidiaries were formed or incorporated under the laws of the same
country, (B) the Stock of the Subsidiary that is the surviving entity is subject
to a Pledge Agreement, (C) the Subsidiary that is the surviving entity has
executed a Guaranty and (D) neither such Subsidiary is an Unrestricted
Subsidiary), (ii) with respect to the European Mergers and (iii) Borrowers and
their Subsidiaries may enter into an agreement to effect any merger,
amalgamation or consolidation, the closing of which is conditioned upon the
payment in full in cash of all of the Obligations (other than contingent
indemnification obligations to the extent
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no unsatisfied claim giving rise thereto has been asserted) and the termination
of the Revolving Loan Commitments; (c) liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution), except in the case of Subsidiaries of a
Borrower, (i) to the extent such Subsidiary is dormant, (ii) to the extent such
dissolution, wind-up or liquidation will not have a Material Adverse Effect, or
(iii) the Agent shall have consented thereto; or (d) acquire by purchase or
otherwise all or any substantial part of the business or assets of any other
Person.
Notwithstanding the foregoing, any Credit Party, may acquire all or
substantially all of the assets or Stock of any Person (the "TARGET") (in each
case, a "PERMITTED ACQUISITION") subject to the satisfaction of each of the
following conditions:
(i) Agent shall receive at least 25 days' prior written notice of
such proposed Permitted Acquisition, which notice shall include a reasonably
detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets (A)
except as provided in clause (v) below, located in the United States or Canada
and (B) comprising a business, or those assets of a business, of the type
engaged in by Credit Parties as of the Closing Date or of a type reasonably
related thereto, and which business would not subject Agent or any Lender to
regulatory or third party approvals in connection with the exercise of its
rights and remedies under this Agreement or any other Loan Documents other than
approvals applicable to the exercise of such rights and remedies with respect to
the Credit Parties prior to such Permitted Acquisition;
(iii) such Permitted Acquisition shall be consensual and shall have
been approved by the Target's board of directors;
(iv) no additional Indebtedness, Guaranteed Indebtedness or
Contingent Obligations shall be incurred, assumed or otherwise be reflected on a
consolidated balance sheet of the Credit Parties and Target after giving effect
to such Permitted Acquisition, except (A) Loans made hereunder, (B) ordinary
course trade payables and accrued expenses, (C) other Indebtedness permitted
under SECTION 3.1 and (D) other Contingent Obligations permitted under SECTION
3.4;
(v) the sum of all amounts payable in connection with all
Permitted Acquisitions (including all transaction costs and all Indebtedness,
liabilities and Contingent Obligations incurred or assumed in connection
therewith or otherwise reflected on a consolidated balance sheet of the Credit
Parties and Target) (the "TOTAL CONSIDERATION") shall not exceed the US Dollar
Equivalent of US$20,000,000 (exclusive of the amount of any "earnouts" incurred
by any Credit Party in connection with Permitted Acquisitions ("PERMITTED
ACQUISITION EARNOUTS")) during the term hereof; provided further, and without
limiting the foregoing, (A) with respect to Permitted Acquisitions involving
assets located outside of the United States or Canada, (x) the secured lending
and bankruptcy laws of the jurisdiction in which such assets are located must be
acceptable to Agent, except to the extent to which the aggregate Total
Consideration of all Permitted Acquisitions that involve assets
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located in jurisdictions which have lending or bankruptcy laws that are not
acceptable to Agent does not exceed the Dollar Equivalent of US$5,000,000 during
the term hereof (a Credit Party that has assets in any such jurisdiction that is
not acceptable to Agent is hereinafter referred to as an "UNFAVORABLE
JURISDICTION CREDIT PARTY") and (y) the Total Consideration of all such
Permitted Acquisitions shall not exceed the US Dollar Equivalent of
US$10,000,000 during the term hereof and (B) the maximum potential aggregate
amount of obligations of the Credit Parties with respect to all Permitted
Acquisition Earnouts pertaining to a Permitted Acquisition shall not exceed 50%
of the Total Consideration of such Permitted Acquisition;
(vi) the terms of any Permitted Acquisition Earnout shall (A)
include a provision in form and substance satisfactory to Agent (which by its
terms shall not be permitted to be amended, waived or modified without the prior
written consent of Agent (or any successor of Agent)) pursuant to which (x) the
Permitted Acquisition Earnout is only permitted to be paid to the extent such
payment is expressly permitted by this Agreement (as this Agreement may be
amended, modified, replaced or refinanced from time to time), and (y) to the
extent any Permitted Acquisition Earnout payment is made in violation of this
Agreement (as this Agreement may be amended, modified, replaced or refinanced)
the holder of such Permitted Acquisition Earnout agrees to promptly forward such
payment to Agent (or any successor to Agent) and (B) provide that the Earnout is
only payable to the extent that the performance of the Credit Parties acquired,
established or created in connection with the related Permitted Acquisition
exceeds the performance contemplated by the Acquisition Pro Forma and
Acquisition Projections each pertaining to such Permitted Acquisition;
(vii) the Target shall not have incurred an operating loss for the
trailing twelve-month period preceding the date of the Permitted Acquisition, as
determined based upon the Target's financial statements for its most recently
completed trailing twelve-month period prior to the date of consummation of such
Permitted Acquisition;
(viii) the business and assets acquired in such Permitted Acquisition
shall be free and clear of all Liens (other than Permitted Encumbrances);
(ix) at or prior to the closing of any Permitted Acquisition, Agent
will be granted a first priority perfected Lien (subject to Permitted
Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock
of the Target in the manner provided by SECTION 2.7, and the Credit Parties and
the Target shall have executed such documents and taken such actions as may be
required by Agent in connection therewith; provided that to the extent that such
Permitted Acquisition is funded solely by third party Indebtedness for borrowed
money (and without any Loan proceeds whatsoever) in an aggregate amount not to
exceed the Dollar Equivalent of US$ 5,000,000 and the Person that is acquired in
such Permitted Acquisition is an Unrestricted Subsidiary or all of the assets
acquired in such Permitted Acquisition are acquired by an Unrestricted
Subsidiary, such Unrestricted Subsidiary shall not be required to ▇▇▇▇▇ ▇ ▇▇▇▇
on its assets in favor of Agent to the extent, and so long as, such grant would
violate the terms of such third party Indebtedness for borrowed money;
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(x) concurrently with delivery of the notice referred to in CLAUSE
(i) above, Borrowers shall have delivered to Agent, in form and substance
reasonably satisfactory to Agent in order to demonstrate the following:
(A) a pro forma consolidated balance sheet, income statement and
cash flow statement of Holdings, Borrowers and their Subsidiaries (the
"ACQUISITION PRO FORMA"), based on recent financial statements, which shall
be complete and shall fairly present in all material respects the assets,
liabilities, financial condition and results of operations of Holdings,
Borrowers and their Subsidiaries in accordance with GAAP consistently
applied, but taking into account such Permitted Acquisition and the funding
of all Loans in connection therewith, and such Acquisition Pro Forma shall
reflect that (x) average daily US Borrowing Availability for the 90-day
period preceding the consummation of such Permitted Acquisition would have
exceeded US$9,000,000 on a pro forma basis (after giving effect to such
Permitted Acquisition and all Loans funded in connection therewith as if
made on the first day of such period) and the Acquisition Projections shall
reflect that such US Borrowing Availability of US$9,000,000 shall continue
for at least 90 days after the consummation of such Permitted Acquisition,
(y) average daily European Borrowing Availability for the 90-day period
preceding the consummation of such Permitted Acquisition would have
exceeded 3,500,000 Euros on a pro forma basis (after giving effect to such
Permitted Acquisition and all Loans funded in connection therewith as if
made on the first day of such period) and the Acquisition Projections shall
reflect that such European Borrowing Availability of 3,500,000 Euros shall
continue for at least 90 days after the consummation of such Permitted
Acquisition, and (z) on a pro forma basis, no Event of Default has occurred
and is continuing or would result after giving effect to such Permitted
Acquisition and Borrowers would have been in compliance with the financial
covenants set forth in SECTION 4 for the four quarter period reflected in
the Compliance Certificate most recently delivered to Agent pursuant to
SECTION 4.8(n) prior to the consummation of such Permitted Acquisition
(after giving effect to such Permitted Acquisition and all Loans funded in
connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered Projections
covering the twelve month period commencing on the date of such Permitted
Acquisition and otherwise prepared in accordance with the Projections (the
"ACQUISITION PROJECTIONS") and based upon historical financial data of a
recent date reasonably satisfactory to Agent, taking into account such
Permitted Acquisition; and
(C) a certificate of the chief financial officer of Borrower
Representative to the effect that Borrowers will be Solvent upon the
consummation of the Permitted Acquisition;
(xi) on or prior to the date of such Permitted Acquisition, Agent
shall have received, in form and substance reasonably satisfactory to Agent in
order to confirm compliance with this Agreement, copies of the acquisition
agreement and related agreements
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and instruments, and all opinions, certificates, lien search results and other
documents reasonably requested by Agent, including those specified in the
SECTIONS 2.6 and 2.7; and
(xii) at the time of such Permitted Acquisition and after giving
effect thereto, (A) no Default or Event of Default has occurred and is
continuing and (B) each representation or warranty by any Credit Party contained
herein (including without limitation SECTION 5.13; and solely for the purposes
of this clause (xii), the representations and warranties in SECTION 5.13 solely
with respect to any property acquired pursuant to such Permitted Acquisition
shall be deemed made as of the date immediately after the consummation of such
Permitted Acquisition rather than as of the Closing Date) or in any other Loan
Document is true and correct in all material respects as of such date, except to
the extent that such representation or warranty expressly relates to an earlier
date.
Section 3.7 DISPOSAL OF ASSETS OR SUBSIDIARY STOCK.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly convey, sell, lease, sublease, transfer
or otherwise dispose of, or grant any Person an option to acquire, in one
transaction or a series of related transactions, any of its property, business
or assets, whether now owned or hereafter acquired, except for (a) conveyances,
sales, leases, subleases, transfers or dispositions of any property, business or
assets during any Fiscal Year which in the aggregate do not have a fair market
or book value in excess of the Dollar Equivalent of US$2,000,000; (b) sales of
inventory, dispositions of obsolete or slow moving inventory and dispositions of
obsolete or worn out machinery and equipment, in each case made in the ordinary
course of business; (c) transfers of assets resulting from any casualty or
condemnation of such assets; (d) an agreement to effect the disposition of all
or a portion of the assets of a Borrower or such Subsidiary, the closing of
which is conditioned upon the payment in full in cash of all of the Obligations
(other than contingent indemnification obligations to the extent no unsatisfied
claim giving rise thereto has been asserted) and the termination of the
Revolving Loan Commitments; (e) the sale or discount of overdue accounts
receivable arising in the ordinary course of business, but only if no Event of
Default exists and only in connection with the compromise or collection thereof;
(f) the sale or other disposition, in each case for not less than the fair
market value, of any Investments permitted to be made by SECTION 3.3(a); (g) the
leasing or subleasing of real estate in the ordinary course of business to third
parties, including without limitation, entering into renewals or extensions of
existing leases, entering into replacement leases, entering into subleases and
other similar transactions; (h) an Asset Disposition otherwise permitted by
SECTION 3.6; (i) other Asset Dispositions by Borrowers and their Subsidiaries
(excluding sales of Accounts and Stock of any of Ultimate Holdings'
Subsidiaries) if all of the following conditions are met: (i) the market value
of assets sold or otherwise disposed of in any single transaction or series of
related transactions does not exceed the Dollar Equivalent of US$2,500,000 and
the aggregate market value of assets sold or otherwise disposed of in any Fiscal
Year does not exceed the Dollar Equivalent of US$6,000,000; (ii) the
consideration received is not less than the fair market value of such assets;
(iii) at least 75% of the consideration is received in (x) cash, (y) Cash
Equivalents or (z) the assumption by the purchaser or other Person (other than a
Credit Party) of the assets subject to the Asset Disposition of Indebtedness of
a Credit Party owing with respect to such assets; (iv) the Net
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Proceeds of such Asset Disposition are applied as required by SECTION 1.5(c);
(v) after giving effect to the Asset Disposition and the repayment of
Indebtedness with the proceeds thereof, Borrowers are in compliance on a pro
forma basis with the covenants set forth in SECTION 4 recomputed for the most
recently ended quarter for which information is available; and (vi) no Default
or Event of Default exists immediately after giving effect to such Asset
Disposition; and (j) the issuance or sale of Stock of a Non Wholly-owned
Subsidiary of a Borrower in connection with the formation or acquisition of such
Subsidiary but only to the extent permitted hereunder. Notwithstanding the
foregoing, no Stock of Holdings, US SportRack Holdings, European Ultimate
Holdings (except in connection with the European Mergers) or any Borrower may be
sold, transferred or otherwise disposed without the prior consent of Lenders or
Requisite Lenders, as applicable, except to consummate the European Mergers and
except with respect to nominee shares and directors' qualifying shares required
by law.
Section 3.8 TRANSACTIONS WITH AFFILIATES.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any management, consulting, investment banking, advisory or
other similar services) with any Affiliate or with any director, officer or
employee of any Credit Party, except (a) as set forth on SCHEDULE 3.8, (b)
transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of any such Credit Party or any of its Subsidiaries
and upon fair and reasonable terms which are fully disclosed to Agent (provided
that the terms of transactions with portfolio companies of CHP are not required
to be disclosed to Agent) and are no less favorable to any such Credit Party or
any of its Subsidiaries than would be obtained in a comparable arm's length
transaction with a Person that is not an Affiliate, (c) payment of reasonable
compensation (including reasonable bonuses) to officers and employees for
services actually rendered to any such Credit Party or any of its Subsidiaries,
(d) payment of director's fees not to exceed the Dollar Equivalent of US$250,000
in the aggregate for any Fiscal Year of Borrowers and (e) transactions with
Affiliates expressly permitted by SECTION 3.1, 3.3, 3.4, 3.5, 3.6 or 3.7;
provided that this clause (e) shall not apply to transactions with Unrestricted
Subsidiaries except to the extent such transactions are expressly permitted by
SECTION 3.1(c), 3.1(l), 3.3(b), 3.3(d), 3.3(e) and 3.5(b).
Section 3.9 CONDUCT OF BUSINESS.
No Credit Party shall directly or indirectly engage in any business
other than businesses of the type described on SCHEDULE 3.9, with respect to
each such Person, or that are reasonably related thereto.
Section 3.10 CHANGES RELATING TO INDEBTEDNESS; ETC.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly change or amend the terms of any of the
documents evidencing the Subordinated Debt or the Seller Contingent Payment Debt
or the Public Note Debt or any
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earnout (including without limitation any Permitted Acquisition Earnout)
(collectively, the "RESTRICTED ITEMS"), if the effect of such amendment is to:
(a) increase the interest rate or other amounts payable with respect to such
Restricted Item; (b) change the dates upon which payments of principal, interest
or other amounts are due on such Restricted Item or change the principal amount
of such Restricted Item (other than changes that would extend the maturity or
date of such principal, interest or other amounts or reduce the amount of such
payment); (c) add or make more restrictive any event of default or covenant with
respect to such Restricted Item; (d) change the redemption or prepayment
provisions of such Restricted Item; (e) change the subordination provisions
thereof (or the subordination terms of any guaranty thereof); (f) change or
amend any other term if such change or amendment would materially increase the
obligations of the obligor or confer additional material rights on the holder of
such Restricted Item in a manner adverse to any Credit Party or Lenders; or (g)
increase the portion of interest payable in cash with respect to any Restricted
Item for which interest is payable by the issuance of payment-in-kind notes or
is permitted to accrue. Notwithstanding the foregoing, the Subordinated Seller
Contingent Payment Notes may be amended pursuant to and in accordance with the
provisions of Section 6.1 thereof and the Subordinated Seller PIK Notes may be
amended pursuant to and in accordance with the provisions of Section 6.1
thereof.
Section 3.11 FISCAL YEAR.
No Credit Party shall change its Fiscal Year or permit any of its
Subsidiaries to change their respective fiscal years.
Section 3.12 PRESS RELEASE; PUBLIC OFFERING MATERIALS.
Each Credit Party executing this Agreement agrees that neither it nor
its Affiliates will in the future issue any press releases or other public
disclosure, including any prospectus, proxy statement or other materials filed
with any Governmental Authority relating to a public offering of the Stock of
any Credit Party, using the name of GE Capital or its affiliates or referring to
the terms of this Agreement or of any other Loan Document or referring to this
specific Agreement or any other Loan Document (as opposed to referring the
existence of a senior credit facility generally) without at least two (2)
Business Days' prior notice to GE Capital and without the prior written consent
of GE Capital unless (and only to the extent that) such Credit Party or
Affiliate is required to do so under law and then, in any event, such Credit
Party or Affiliate will consult with GE Capital before issuing such press
release or other public disclosure. Each Credit Party consents to the
publication by Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement.
Agent or such Lender shall provide a draft of any such tombstone or similar
advertising material to each Credit Party for review and comment prior to the
publication thereof. Agent reserves the right to provide to financial industry
trade organizations information necessary and customary for inclusion in league
table measurements.
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Section 3.13 SUBSIDIARIES.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly establish, create or acquire any new
Subsidiary, except (i) with the prior written consent of Agent, which such
consent shall not be unreasonably withheld, or (ii) that a Borrower or any of
its Subsidiaries may establish, create or acquire Subsidiaries to consummate a
Permitted Acquisition.
Section 3.14 BANK ACCOUNTS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to establish any new bank accounts without prior written notice to
Agent and unless Agent and the bank at which the account is to be opened enter
into a tri-party agreement regarding such bank account pursuant to which such
bank acknowledges the security interest of Agent in such bank account, agrees
during the continuance of an Event of Default (or with respect to a bank account
that is maintained by a Canadian Credit Party with a bank located in Canada,
agrees during any time that Agent reasonably has grounds to question such Credit
Party's compliance with any provisions of the Loan Documents) to comply with
instructions originated by Agent directing disposition of the funds in the bank
account without further consent from such Credit Party or Subsidiary (it being
understood that Agent is only entitled to sweep funds in an aggregate amount not
to exceed the amount of the Obligations then due by acceleration or otherwise),
and agrees to subordinate and limit any security interest the bank may have in
the bank account on terms satisfactory to Agent (a "CONTROL Agreement");
PROVIDED that unless Agent requests and except as required in the following
sentence, no Control Agreement shall be required with respect to bank accounts
established outside of the United States of America by Non-US Credit Parties and
no such Control Agreement by any such Non-US Credit Party shall be required to
the extent such Control Agreement would violate applicable law. Within ninety
(90) days after the Original Closing Date, each Non-US Credit Party shall
establish a Control Agreement and (i) each Non-US Credit Party shall cause all
funds of such Non-US Credit Party in excess of the Dollar Equivalent of
US$500,000 in the aggregate to be deposited into accounts subject to such
Control Agreement and (ii) the Non-US Credit Parties shall cause all funds of
the Non-US Credit Parties in excess of the Dollar Equivalent of US$2,000,000 in
the aggregate to be deposited into accounts subject to such Control Agreement.
Section 3.15 HAZARDOUS MATERIALS.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to cause or permit a Release of any Hazardous Material on, at, in,
under, above, to, from or about any of the Real Estate where such Release would
(a) violate in any respect, or form the basis for any Environmental Liabilities
by the Credit Parties or any of their Subsidiaries under, any Environmental Laws
or Environmental Permits or (b) otherwise adversely impact the value or
marketability of any of the Real Estate or any of the Collateral, other than
such violations or Environmental Liabilities that could not reasonably be
expected to have a Material Adverse Effect.
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Section 3.16 ERISA/CANADIAN PENSION PLAN.
The Credit Parties shall not and shall not cause or permit any ERISA
Affiliate to, cause or permit to occur an ERISA Event to the extent such ERISA
Event could reasonably be expected to have a Material Adverse Effect.
Additionally, for each existing Canadian Pension Plan, each Credit
Party shall ensure that such plan retains its registered status under and is
administered in a timely manner in all material respects in accordance with the
applicable pension plan text, funding agreement, the Income Tax Act (Canada) and
all other applicable laws. For each Canadian Pension Plan hereafter adopted by
any Credit Party which is required to be registered under the Income Tax Act
(Canada) or any other applicable laws, that Credit Party shall use its best
efforts to seek and receive confirmation in writing from the applicable
Governmental Authorities to the effect that such plan is unconditionally
registered under the Income Tax Act (Canada) and such other applicable laws. For
each existing and hereafter adopted Canadian Pension Plan and Canadian Benefit
Plan, each Credit Party shall in a timely fashion perform in all material
respects all obligations (including fiduciary, funding, investment and
administration obligations) required to be performed in connection with such
plan and the funding media therefor. Each Credit Party shall deliver to Agent if
requested by Agent, promptly after the filing thereof by any Credit Party with
any applicable Governmental Authority, (i) copies of each annual and other
return, report or valuation with respect to each Canadian Pension Plan; (ii)
promptly after receipt thereof, a copy of any direction, order, notice, ruling
or opinion that any Credit Party may receive from any applicable Governmental
Authority with respect to any Canadian Pension Plan; and (iii) notification
within 30 days of any increases having a cost to such Credit Party in excess of
the Dollar Equivalent of US$250,000 per annum, in the benefits of any existing
Canadian Pension Plan or Canadian Benefit Plan, or the establishment of any new
Canadian Pension Plan or Canadian Benefit Plan, or the commencement of
contributions to any such plan to which any Credit Party was not previously
contributing.
Section 3.17 SALE-LEASEBACKS.
Except as set forth on SCHEDULE 3.17, the Credit Parties shall not and
shall not cause or permit any of their Subsidiaries to engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets.
Section 3.18 PREPAYMENTS OF OTHER INDEBTEDNESS.
The Credit Parties shall not, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness described in any of
clause (a), (b), (c) or (g) of the definition of Indebtedness (or in respect of
any Indebtedness during the continuance of an Event of Default), other than (i)
the Obligations, (ii) Indebtedness secured by a Permitted Encumbrance if the
asset securing such Indebtedness is being sold or otherwise disposed of in
accordance with SECTION 3.7, (iii) to the extent permitted by SECTIONS 3.1(b)
and (c),
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intercompany Indebtedness owing to a Borrower or any of its Subsidiaries, (iv)
Indebtedness otherwise owing to a Borrower or (v) Permitted Prepayments.
Section 3.19 ▇▇▇▇▇ LITIGATION.
The Credit Parties shall not and shall not cause or permit their
Subsidiaries to directly or indirectly, amend or otherwise modify, or issue any
direction, consent or certificate under, that certain Escrow Agreement dated on
the Original Closing Date, among US SportRack Holdings, Bank One, NA, Bank One
Trust Company, National Association and ▇▇▇▇▇/AAS LLC, without the prior written
consent of Agent
SECTION 4
FINANCIAL COVENANTS/REPORTING
Borrowers covenant and agree that from and after the date hereof until
the Termination Date, Borrowers shall perform and comply with, and shall cause
each of the other Credit Parties to perform and comply with, all covenants in
this SECTION 4 applicable to such Person.
Section 4.1 INTENTIONALLY RESERVED.
Section 4.2 INTENTIONALLY RESERVED.
Section 4.3 INTENTIONALLY RESERVED.
Section 4.4 MINIMUM FIXED CHARGE COVERAGE RATIO.
Holdings, Borrowers and their Subsidiaries on a consolidated basis
shall have, as of the last day of each Fiscal Quarter (commencing with the
Fiscal Quarter ending on June 30, 2004), from the date hereof until the
Termination Date, a Fixed Charge Coverage Ratio for the 12-month period then
ended of not less than 1.15 to 1.0.
Section 4.5 INTENTIONALLY RESERVED.
Section 4.6 INTENTIONALLY RESERVED.
Section 4.7 MAXIMUM SENIOR SECURED LEVERAGE RATIO.
Holdings, Borrowers and their Subsidiaries on a consolidated basis
shall have, as of the last day of each Fiscal Quarter, from the date hereof
until the Termination Date, a Senior Secured Leverage Ratio for the 12-month
period then ended of not more than 1.25 to 1.0.
Section 4.8 FINANCIAL STATEMENTS AND OTHER REPORTS.
Ultimate Holdings and Borrowers will maintain, and cause each of their
Subsidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of Financial
Statements in conformity
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with GAAP (it being understood that quarterly Financial Statements are subject
to normal year-end adjustments and are not required to have footnote
disclosures). Borrower Representative will deliver each of the Financial
Statements and other reports described below to Agent (and each Lender, by
posting such Financial Statements and other reports to IntraLinks, in the case
of the Financial Statements and other reports described in SECTIONS (4.8)(a),
(b), (d), (f), (h), (i), (j) and (n); Lenders agree that such posting to
IntraLinks shall be a sufficient means of delivering such Financial Statements
and other reports to Lenders).
(a) QUARTERLY FINANCIALS. As soon as available and in any event
within forty five (45) days after the end of each Fiscal Quarter (including the
last Fiscal Quarter of Borrowers' Fiscal Year), Borrower Representative will
deliver (1) the consolidated and consolidating balance sheets of Holdings,
Borrowers and their Subsidiaries, as at the end of such Fiscal Quarter, and the
related consolidated and consolidating statements of income, stockholders'
equity and cash flow for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year of Borrowers to the end of such Fiscal
Quarter, (2) a report setting forth in comparative form the corresponding
figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the most recent Projections for the current Fiscal
Year delivered pursuant to SECTION 4.8(h) and (3) a schedule of the outstanding
Indebtedness for borrowed money (other than Indebtedness for borrowed money owed
to any Person which in the aggregate is less than the Dollar Equivalent of
US$250,000) of Holdings, Borrowers and their Subsidiaries describing in
reasonable detail each such debt issue or loan outstanding and the principal
amount and amount of accrued and unpaid interest with respect to each such debt
issue or loan.
(b) YEAR-END FINANCIALS. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year of Borrowers, Borrower
Representative will deliver (1) the consolidated and consolidating balance
sheets of Holdings, Borrowers and their Subsidiaries, as at the end of such
year, and the related consolidated and consolidating statements of income,
stockholders' equity and cash flow for such Fiscal Year, (2) a schedule of the
outstanding Indebtedness for borrowed money (other than Indebtedness for
borrowed money owed to any Person which in the aggregate is less than the Dollar
Equivalent of US$250,000) of Holdings, Borrowers and their Subsidiaries
describing in reasonable detail each such debt issue or loan outstanding and the
principal amount and amount of accrued and unpaid interest with respect to each
such debt issue or loan and (3) a report with respect to the consolidated
Financial Statements from a firm of Certified Public Accountants selected by
Borrowers and reasonably acceptable to Agent, which report shall be prepared in
accordance with Statement of Auditing Standards No. 58 (the "STATEMENT")
"Reports on Audited Financial Statements" and such report shall be without (x) a
"GOING CONCERN" or like qualification or exception, (y) any qualification or
exception as to the scope of such audit or (z) any qualification which relates
to the treatment or classification of any item and which, as a condition to the
removal of such qualification, would require an adjustment to such item, the
effect of which would be to cause a Borrower to be in default of any of its
obligations under SECTIONS 4.1 through 4.7.
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(c) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, Borrower
Representative will deliver copies of all significant reports submitted by
Borrowers' firm of certified public accountants (or the equivalent of certified
public accountants) in connection with each annual, interim or special audit or
review of any type of the Financial Statements or related internal control
systems of Ultimate Holdings, Holdings, Borrowers or their Subsidiaries made by
such accountants, including any significant comment letter submitted by such
accountants to management in connection with their services.
(d) US BORROWING BASE CERTIFICATE/EUROPEAN BORROWING BASE
CERTIFICATE. As soon as available and in any event within ten (10) Business Days
after the end of each month, and upon the request of Agent after the occurrence
and during the continuation of any Event of Default from time to time, Borrower
Representative will deliver a US Borrowing Base Certificate (in substantially
the same form as EXHIBIT 4.8(d)(i), the "US BORROWING BASE CERTIFICATE") as at
the last day of such period. As soon as available and in any event within ten
(10) Business Days after the end of each month, and upon the request of Agent
after the occurrence and during the continuation of any Event of Default from
time to time, Borrower Representative will deliver a European Borrowing Base
Certificate (in substantially the same form as EXHIBIT 4.8(d)(ii), the "EUROPEAN
BORROWING BASE CERTIFICATE") as at the last day of such period.
(e) MANAGEMENT REPORT. Together with each delivery of Financial
Statements pursuant to SECTIONS 4.8(a) and (b), Borrower Representative will
deliver a management report (1) describing the operations and financial
condition of Ultimate Holdings, Borrowers and their Subsidiaries for the Fiscal
Quarter then ended and the portion of the current Fiscal Year then elapsed (or
for the Fiscal Year then ended in the case of year-end financials), (2) setting
forth in comparative form the corresponding figures for the corresponding
periods of the previous fiscal year and the corresponding figures from the most
recent Projections for the current Fiscal Year delivered pursuant to SECTION
4.8(h) and (3) discussing the reasons for any significant variations. The
information above shall be presented in reasonable detail and shall be certified
by the chief financial officer of Holdings to the effect that such Financial
Statements fairly present the results of operations and financial condition of
Holdings, Borrowers and their Subsidiaries as at the dates and for the periods
indicated subject to normal year-end adjustments.
(f) COLLATERAL VALUE REPORT. Upon the election of Agent, which may
be made not more than once each year prior to an Event of Default (and prior to
an Event of Default, Borrowers shall not be liable for costs, fees and expenses
incurred by Agent and Lenders in excess of the Dollar Equivalent of US$35,000
during any calendar year in connection with any collateral value report required
pursuant to this SECTION 4.8(f)) and at any time while and so long as an Event
of Default shall be continuing, Agent may obtain, at Borrowers' expense, a
report of a collateral auditor satisfactory to Agent (which may be, or be
affiliated with, a Lender) with respect to the Eligible Accounts and Eligible
Inventory components included in either the US Borrowing Base or the European
Borrowing Base, as applicable, which report shall indicate whether or not the
information set forth in the US Borrowing Base Certificate or the European
Borrowing Base Certificate, as applicable, most recently delivered is accurate
and complete in all material respects based upon a review
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by such auditor of the Eligible Accounts (including verification with respect to
the amount, aging, identity and credit of the respective account debtors and the
billing practices of Borrowers) and Eligible Inventory (including verification
as to the value, location and respective types).
(g) APPRAISALS. From time to time, if Agent or any Lender
determines that obtaining appraisals is necessary in order for Agent or such
Lender to comply with applicable laws or regulations, Agent will, at Borrowers'
expense, obtain appraisal reports in form and substance and from appraisers
reasonably satisfactory to Agent stating the then current fair market values of
all or any portion of the Real Estate owned by Credit Parties. In addition to
the foregoing, at Borrowers' expense, at any time while and so long as an Event
of Default shall have occurred and be continuing, Agent may obtain appraisal
reports in form and substance and from appraisers satisfactory to Agent stating
the then current market values of all or any portion of the Real Estate and
personal property owned by any of the Credit Parties.
(h) PROJECTIONS. As soon as available and in any event no later
than the last day of each of Borrowers' Fiscal Years, Borrower Representative
will deliver Projections of Holdings, Borrowers and their Subsidiaries for the
forthcoming three (3) fiscal years, year by year, and for the forthcoming fiscal
year, month by month.
(i) SEC FILINGS, PRESS RELEASES AND PUBLIC NOTES DELIVERIES.
Promptly upon their becoming available, Borrower Representative will deliver
copies of (1) all Financial Statements, reports, notices and proxy statements
sent or made available by Ultimate Holdings, Holdings, Borrowers or any of their
Subsidiaries to their Stockholders, (2) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by Ultimate Holdings,
Holdings, Borrowers or any of their Subsidiaries with any securities exchange or
with the Securities and Exchange Commission, or any material reports, statements
and prospectuses, if any, filed with any other Governmental Authority, (3) all
material press releases made available by Ultimate Holdings, Holdings, Borrowers
or any of their respective Subsidiaries to the public concerning developments in
the business of any such Person and (4) all notices, certificates (including,
without limitation, the items required under Section 4.4 of the Initial Public
Note Indenture) or reports sent or received by any Credit Party in connection
with the Public Notes.
(j) EVENTS OF DEFAULT, ETC. Promptly upon any officer of any
Credit Party obtaining knowledge of any of the following events or conditions,
Borrower Representative shall deliver copies of all notices given or received by
such Borrower or Ultimate Holdings or any of their Subsidiaries with respect to
any such event or condition and a certificate of a senior authorized officer of
Borrower Representative specifying the nature and period of existence of such
event or condition and what action Ultimate Holdings, Borrowers or any of their
Subsidiaries has taken, is taking and proposes to take with respect thereto: (1)
any condition or event that constitutes an Event of Default under SECTION
6.1(b); (2) any condition or event that constitutes any other Event of Default;
(3) any notice that any Person has given to any Borrower or any of their
Subsidiaries or any other action taken with respect to a claimed default or
event or condition of the type referred to in SECTION 6.1(b); or (4) any
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event or condition that could reasonably be expected to result in any Material
Adverse Effect.
(k) LITIGATION. Promptly upon any officer of any Credit Party
obtaining knowledge of (1) the institution of any action, charge, claim, demand,
suit, proceeding, petition, governmental investigation, tax audit or arbitration
now pending or, to the knowledge of such Credit Party, threatened against or
affecting any Credit Party or any of its Subsidiaries or any property of any
Credit Party or any of its Subsidiaries ("LITIGATION") not previously disclosed
by Borrower Representative to Agent or (2) any material order is entered in any
action, suit, proceeding, governmental investigation or arbitration at any time
pending against or affecting any Credit Party or any property of any Credit
Party which, in the case of each of clause (1) and (2) above, could reasonably
be expected to have a Material Adverse Effect, Borrower Representative will
promptly give notice thereof to Agent and provide such other information as may
be reasonably available to them (except to the extent such information is
protected by attorney-client privilege) to enable Agent and its counsel to
evaluate such matter.
(l) NOTICE OF CORPORATE AND OTHER CHANGES/UPDATES TO
REPRESENTATIONS AND WARRANTIES TIED TO THE CLOSING DATE/"UNRESTRICTED
SUBSIDIARY" UNDER THE INITIAL PUBLIC NOTE INDENTURE. Borrower Representative
shall provide prompt written notice of (1) any material change after the Closing
Date in the authorized and issued Stock of any Credit Party or any Subsidiary of
any Credit Party or any material amendment to its articles or certificate of
incorporation, articles of association, by-laws, partnership agreement or other
organizational documents, (2) any Subsidiary created or acquired by any Credit
Party or any of its Subsidiaries after the Closing Date, such notice, in each
case, to identify the applicable jurisdictions, capital structures or
Subsidiaries, as applicable, (3) any event that would cause any of the
representations and warranties made under any of SECTIONS 5.7, 5.13 (provided
that solely with respect to this clause (3), all references in SECTION 5.13 to
"in excess of the Dollar Equivalent of US$100,000 in the aggregate" shall be
deemed replaced by a reference to "in a Material Adverse Effect") and 5.16 to be
inaccurate or incomplete assuming such representations and warranties were made
as of the current date rather than as of the Closing Date. Borrower
Representative shall provide written notice, at least once each calendar quarter
of any event that would cause any of the representations and warranties made
under any of SECTIONS 5.4(b), 5.8 and 5.12 (provided such notice pertaining to
SECTION 5.12 shall only be required to the extent that a similar notice is not
otherwise required by the terms of this Agreement or any other Loan Document, in
which case the terms of such similar notice requirement shall govern) to be
inaccurate or incomplete assuming such representations and warranties were made
as of the current date rather than as of the Closing Date and (4) any Credit
Party becoming an "Unrestricted Subsidiary" as defined in the Initial Public
Note Indenture. The foregoing notice requirements set forth in the previous two
sentences shall not be construed to constitute consent by any of the Lenders to
any transaction referred to therein which is not expressly permitted by the
terms of this Agreement.
(m) OTHER INFORMATION. With reasonable promptness, Borrower
Representative will deliver such other information and data with respect to any
Credit Party
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or any Subsidiary of any Credit Party as from time to time may be reasonably
requested by Agent.
(n) COMPLIANCE CERTIFICATE. Together with each delivery of
Financial Statements of Holdings, Borrowers and their Subsidiaries pursuant to
SECTIONS 4.8(a) and (b), Borrower Representative will deliver a fully and
properly completed Compliance Certificate (in substantially the same form as
EXHIBIT 4.8(n) (the "COMPLIANCE CERTIFICATE") signed by Borrower
Representative's chief executive officer or chief financial officer.
(o) TAXES. Borrower Representative shall provide prompt written
notice of (i) the execution or filing with the IRS or any other Governmental
Authority of any agreement or other document extending, or having the effect of
extending, the period for assessment or collection of any Charges by any Credit
Party or any of its Subsidiaries and (ii) any agreement by any Credit Party or
any of its Subsidiaries or request directed to any Credit Party or any of its
Subsidiaries to make any adjustment under IRC Section 481(a), by reason of a
change in accounting method or otherwise, which, in the case of each of clause
(i) and (ii) above, could reasonably be expected to have a Material Adverse
Effect.
Section 4.9 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
For purposes of this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to such terms in conformity with
GAAP. Financial statements and other information furnished to Agent pursuant to
SECTION 4.8 or any other Section (unless specifically indicated otherwise) shall
be prepared in accordance with GAAP as in effect at the time of such
preparation; PROVIDED that no Accounting Change shall affect financial
covenants, standards or terms in this Agreement; PROVIDED further that Borrowers
shall prepare footnotes to the Financial Statements required to be delivered
hereunder that show the differences between the Financial Statements delivered
(which reflect such Accounting Changes) and the basis for calculating financial
covenant compliance (without reflecting such Accounting Changes). All such
adjustments described in clause (c) of the definition of the term Accounting
Changes resulting from expenditures in excess of the Dollar Equivalent of
US$500,000 made subsequent to the Closing Date (including capitalization of
costs and expenses or payment of pre-Closing Date liabilities) shall, unless
otherwise agreed by Agent, be treated as expenses in the period the expenditures
are made.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into the Loan Documents, to make
Loans and to issue or cause to be issued Letters of Credit, Borrowers and the
other Credit Parties executing this Agreement represent, warrant and covenant to
Agent and each Lender that the following statements are and, after giving effect
to (i) the Related Transactions and the making of each Loan and issuance of each
Letter of Credit on the Closing Date,
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will remain true, correct and complete as of the Closing Date with respect to
all Credit Parties and (ii) the making of each Loan and issuance of each Letter
of Credit after the Closing Date, will remain true, correct and complete in all
material respects as of the date of such Loan or issuance with respect to all
Credit Parties:
Section 5.1 DISCLOSURE.
No certificate or written statement furnished to Agent or any Lender,
by or on behalf of any Credit Party for use in connection with the Loan
Documents, contains as of the date such certificate or written statement was so
furnished, any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein not
misleading, in each case in light of the circumstances in which the same were
made.
Section 5.2 NO MATERIAL ADVERSE CHANGE.
Since December 31, 2002 there have been no events or changes in facts
or circumstances affecting any Credit Party or any of its Subsidiaries which
individually or in the aggregate have had or could reasonably be expected to
have a Material Adverse Effect and that have not been either (i) disclosed
herein or in the attached Disclosure Schedules or (ii) disclosed by the
Borrowers to the Agent in accordance with SECTION 4.8(j).
Section 5.3 NO CONFLICT.
The consummation of the Related Transactions does not and will not
violate or conflict with any laws, rules, regulations or orders of any
Governmental Authority or violate, conflict with, result in a breach of, or
constitute a default (with due notice or lapse of time or both) under any
Contractual Obligation or organizational documents of any Credit Party or any of
its Subsidiaries except if such violations, conflicts, breaches or defaults
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
Section 5.4 ORGANIZATION, POWERS, CAPITALIZATION AND GOOD STANDING.
(a) ORGANIZATION AND POWERS. Each of the Credit Parties and each
of their Subsidiaries is duly formed or incorporated, as applicable, validly
existing and in good standing under the laws of its jurisdiction of formation or
incorporation, as applicable, and qualified to do business in all states and
other jurisdictions where such qualification is required except where failure to
be so qualified could not reasonably be expected to have a Material Adverse
Effect. As of the Closing Date, the jurisdiction of incorporation or formation,
as applicable, and all jurisdictions in which each Credit Party is qualified to
do business are set forth on SCHEDULE 5.4(a). Each of the Credit Parties and
each of their Subsidiaries has all requisite organizational power and authority
to own and operate its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into each Related Transactions Document to
which it is a party and to incur the Obligations, grant liens and security
interests in the Collateral and carry out the Related Transactions.
(b) CAPITALIZATION. As of the Closing Date: (i) the authorized
Stock of each of the Credit Parties and each of their Subsidiaries is as set
forth on SCHEDULE 5.4(b);
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(ii) all issued and outstanding Stock of each of the Credit Parties and each of
their Subsidiaries is duly authorized and validly issued, fully paid,
nonassessable, free and clear of all Liens other than those in favor of Agent
for the benefit of Agent and Lenders, and such Stock was issued in compliance
with all applicable state, federal and foreign laws concerning the issuance of
securities; (iii) the identity of the holders of the Stock of each of the Credit
Parties and the percentage of their fully-diluted ownership of the Stock
(including CHP's indirect ownership of such Stock) of each of the Credit Parties
is set forth on SCHEDULE 5.4(b); and (iv) no Stock of any Credit Party or any of
their Subsidiaries, other than those described above, are issued and
outstanding. Except as provided in SCHEDULE 5.4(b), as of the Closing Date,
there are no preemptive or other outstanding rights, options, warrants,
conversion rights or similar agreements or understandings for the purchase or
acquisition from any Credit Party or any of their Subsidiaries of any Stock of
any such entity.
(c) BINDING OBLIGATION. This Agreement is, and the other Loan
Documents heretofore executed and delivered or when executed and delivered will
be, the legally valid and binding obligations of each Credit Party that is a
party thereto, each enforceable against each of such Credit Party, as
applicable, in accordance with their respective terms, except as enforceability
is limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief and other equitable remedies are subject to the discretion of
the court before which any proceeding therefor may be brought.
Section 5.5 FINANCIAL STATEMENTS AND PROJECTIONS.
All Financial Statements concerning Holdings, Borrowers and their
Subsidiaries which have been or will hereafter be furnished to Agent pursuant to
this Agreement, including those listed below, have been or will be prepared in
accordance with GAAP consistently applied (except as disclosed therein) and
present fairly, in all material respects, the financial condition of the
entities covered thereby as at the dates thereof and the results of their
operations for the periods then ended, subject to, in the case of unaudited
Financial Statements, the absence of footnotes and normal year-end adjustments.
(a) The consolidated balance sheets at December 31, 2002 and the
related statement of income of Holdings, Borrowers and their Subsidiaries, for
the Fiscal Year then ended, audited by PricewaterhouseCoopers.
(b) The consolidated balance sheet at March 31, 2003 and the
related statement of income of Holdings, Borrowers and their Subsidiaries for
the three (3) months then ended.
The Projections delivered on or prior to the Closing Date and the updated
Projections delivered pursuant to SECTION 4.8(h) have been prepared in good
faith and based upon reasonable assumptions at the time such Projections were
delivered, it being understood that such Projections do not and will not
constitute a warranty as to the future performance of any Borrower or its
Subsidiaries and that actual results may vary from such Projections.
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Section 5.6 INTELLECTUAL PROPERTY.
Each of the Credit Parties and its Subsidiaries owns, is licensed to
use or otherwise has the right to use, all Intellectual Property necessary for
the conduct of its business substantially as currently conducted that is
material to the financial condition of the business or operations of any of
SportRack US Borrower and its Subsidiaries taken as a whole, Valley US Borrower
and its Subsidiaries taken as a whole or European Borrower and its Subsidiaries
taken as a whole, as applicable, and all such Intellectual Property that is
federally or similarly registered and owned or licensed by such Credit Party or
such Subsidiary, as well as all material trademarks, trade names and copyrights,
necessary for the conduct of the business of any such Person and owned or
licensed by any such Person, is identified on SCHEDULE 5.6 and, in each case, is
fully protected and/or duly and properly registered, filed or issued in the
appropriate office and jurisdictions for such registrations, filings or
issuances. Except as disclosed in SCHEDULE 5.6, since the Closing Date, and to
Borrowers' knowledge prior to the Closing Date, the use of such Intellectual
Property by the Credit Parties and their Subsidiaries and the conduct of their
businesses does not and has not been alleged in writing by any Person to
infringe on the rights of any Person, except to the extent any such infringement
or allegation of infringement could not reasonably be expected to have a
Material Adverse Effect.
Section 5.7 INVESTIGATIONS, AUDITS, ETC.
As of the Closing Date, except as set forth on SCHEDULE 5.7, no Credit
Party or any of their Subsidiaries is the subject of any review or audit by the
IRS or any governmental investigation concerning the violation or possible
violation of any law that may reasonably be expected to have a Material Adverse
Effect.
Section 5.8 EMPLOYEE MATTERS.
Except as set forth on SCHEDULE 5.8, (a) as of the Closing Date no
Credit Party or Subsidiary of a Credit Party nor any of their respective
employees is subject to any collective bargaining agreement, (b) as of the
Closing Date no petition for certification or union election is pending with
respect to the employees of any Credit Party or any of their Subsidiaries and no
union or collective bargaining unit has sought such certification or recognition
with respect to the employees of any Credit Party or any of their Subsidiaries,
(c) there are no strikes, slowdowns, work stoppages or controversies pending or,
to the best knowledge of any Credit Party after due inquiry, threatened between
any Credit Party or any of their Subsidiaries and its respective employees,
other than employee grievances arising in the ordinary course of business which
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect and (d) hours worked by and payment made to
employees of each Credit Party and each of their Subsidiaries comply with the
Fair Labor Standards Act and each other federal, state, local or foreign law
applicable to such matters. Except as set forth on SCHEDULE 5.8, as of the
Closing Date no Borrower nor any of their Subsidiaries is party to an employment
contract that provides for annual payments after the date hereof in excess of
the Dollar Equivalent of $100,000.
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Section 5.9 SOLVENCY.
(1) As of the Closing Date, each of the Credit Parties and its
Subsidiaries is Solvent and (2) after the Closing Date (a) each Borrower, (b) US
Credit Parties considered as a whole and (c) the Credit Parties considered as a
whole, in each case, continues to be Solvent.
Section 5.10 LITIGATION; ADVERSE FACTS.
Except as set forth on SCHEDULE 5.10, there are no judgments
outstanding against any Credit Party or any of its Subsidiaries or affecting any
property of any Credit Party or any of its Subsidiaries, nor is there any
Litigation pending, or to the knowledge of any Borrower threatened, against any
Credit Party or any of its Subsidiaries which could reasonably be expected to
result in any Material Adverse Effect.
Section 5.11 USE OF PROCEEDS; MARGIN REGULATIONS.
(a) No part of the proceeds of any Loan will be used for "buying"
or "carrying" "margin stock" within the respective meanings of such terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any other purpose that violates the
provisions of the regulations of the Board of Governors of the Federal Reserve
System. If requested by Agent, each Credit Party will furnish to Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form G-3 or FR Form 0-1, as applicable, referred to in Regulation U.
(b) Borrowers shall utilize the proceeds of (i) the Loans made on
the Closing Date solely to repay outstanding principal and interest owing on the
Original Loans (provided that no proceeds of the European Loans shall be used to
refinance any of the "US Loans" as defined in the Original Credit Agreement) and
to pay any related transaction expenses and (ii) all other Loans for the
financing of Borrowers' (and subject to the restrictions set forth in the second
to last sentence of this SECTION 5.11(b), their Subsidiaries') ordinary working
capital and general corporate needs. SCHEDULE 5.11 contains a description of
Borrowers' sources and uses of funds as of the Closing Date, including Loans and
Letter of Credit Obligations to be made or incurred on that date, and a funds
flow memorandum detailing how funds from each source are to be transferred for
particular uses. Borrowers shall not transfer any proceeds of any of the Loans
to any of their Subsidiaries except to the extent expressly permitted by
SECTIONS 3.1(b), 3.1(c), 3.3(b) and 3.3(d). Without limiting the foregoing, no
proceeds (i) of any Loans advanced on the Closing Date shall be used to
refinance Indebtedness that was originally used to acquire any Non-US Credit
Party and (ii) of any European Loans shall be used to finance the purchase of
the equity of any Non-US Credit Party or any of its direct or indirect
Stockholders to the extent the application of such proceeds would violate any
applicable financial assistance or other laws.
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Section 5.12 OWNERSHIP OF PROPERTY; LIENS.
As of the Closing Date, the real estate (together with any real estate
hereinafter owned, leased, subleased, or used by any Credit Party or any of its
Subsidiaries, the "REAL ESTATE") listed in SCHEDULE 5.12 constitutes all of the
real property owned, leased, subleased, or used by any Credit Party or any of
its Subsidiaries. Each of the Credit Parties and each of its Subsidiaries owns
fee simple title to all of its owned Real Estate, and valid leasehold interests
in all of its leased Real Estate, all as described on SCHEDULE 5.12, and copies
of all such leases or a summary of terms thereof reasonably satisfactory to
Agent have been delivered to Agent. SCHEDULE 5.12 further describes any Real
Estate with respect to which any Credit Party or any of its Subsidiaries is a
lessor, sublessor or assignor as of the Closing Date. Each of the Credit Parties
and each of its Subsidiaries also has good title to, or valid leasehold
interests in, all of its material personal property and assets. As of the
Closing Date, none of the properties and assets of any Credit Party or any of
its Subsidiaries are subject to any Liens other than Permitted Encumbrances.
SCHEDULE 5.12 also describes as of the Closing Date any purchase options, rights
of first refusal or other similar contractual rights pertaining to any Real
Estate. As of the Closing Date, no portion of any Credit Party's or any of its
Subsidiaries' Real Estate has suffered any material damage by fire or other
casualty loss that has not heretofore been repaired and restored in all material
respects to its original condition or otherwise remedied. As of the Closing
Date, all material permits required to have been issued or appropriate to enable
the Real Estate to be lawfully occupied and used for all of the purposes for
which it is currently occupied and used have been lawfully issued and are in
full force and effect.
Section 5.13 ENVIRONMENTAL MATTERS.
(a) Except as set forth in SCHEDULE 5.13, to each Credit Parties'
knowledge, as of the Closing Date: (i) the Real Estate is free of contamination
from any Hazardous Material except for such contamination that could not
reasonably be expected to adversely impact the value or marketability of such
Real Estate and that could not reasonably be expected to result in Environmental
Liabilities of the Credit Parties or their Subsidiaries in excess of the Dollar
Equivalent of US$100,000 in the aggregate; (ii) no Credit Party and no
Subsidiary of a Credit Party has caused or suffered to occur any Release of
Hazardous Materials on, at, in, under, above, to, from or about any of their
Real Estate; (iii) the Credit Parties and their Subsidiaries are and have been
in compliance with all Environmental Laws, except for such noncompliance that
could not reasonably be expected to result in Environmental Liabilities of the
Credit Parties or their Subsidiaries in excess of the Dollar Equivalent of
US$100,000 in the aggregate; (iv) the Credit Parties and their Subsidiaries have
obtained, and are in compliance with, all Environmental Permits required by
Environmental Laws for the operations of their respective businesses as
presently conducted or as proposed to be conducted, except where the failure to
so obtain or comply with such Environmental Permits could not reasonably be
expected to result in Environmental Liabilities of the Credit Parties or their
Subsidiaries in excess of the Dollar Equivalent of US$100,000 in the aggregate,
and all such Environmental Permits are valid, uncontested and in good standing;
(v) no Credit Party and no Subsidiary of a Credit Party is involved in
operations or knows of any facts, circumstances or conditions, including any
Releases of
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Hazardous Materials, that are likely to result in any Environmental Liabilities
of such Credit Party or Subsidiary which could reasonably be expected to be in
excess of the Dollar Equivalent of US$100,000 in the aggregate, and no Credit
Party or Subsidiary of a Credit Party has permitted any current or former tenant
or occupant of the Real Estate to engage in any such operations; (vi) there is
no Litigation arising under or related to any Environmental Laws, Environmental
Permits or Hazardous Material that seeks damages, penalties, fines, costs or
expenses in excess of the Dollar Equivalent of US$100,000 in the aggregate or
injunctive relief against, or that alleges criminal misconduct by any Credit
Party or any Subsidiary of a Credit Party; (vii) no written notice has been
received by any Credit Party or any Subsidiary of a Credit Party identifying any
of them as a "potentially responsible party" or requesting information under
CERCLA or analogous statutes of any state, province, territory or other
jurisdiction, and to the knowledge of the Credit Parties, there are no facts,
circumstances or conditions that may result in any of the Credit Parties or
their Subsidiaries being identified as a "potentially responsible party" under
CERCLA or any such analogous statutes; and (viii) the Credit Parties have
provided to Agent copies of all existing environmental reports, reviews and
audits and all written information pertaining to actual or potential
Environmental Liabilities, in each case relating to any of the Credit Parties or
their Subsidiaries.
(b) Each Credit Party hereby acknowledges and agrees that Agent
(i) is not now, and has not ever been, in control of any of the Real Estate or
affairs of such Credit Party or its Subsidiaries , and (ii) does not have the
capacity through the provisions of the Loan Documents or otherwise to influence
any Credit Party's or its Subsidiaries' conduct with respect to the ownership,
operation or management of any of their Real Estate or compliance with
Environmental Laws or Environmental Permits.
Section 5.14 ERISA/SIMILAR NON-US ISSUES.
(a) SCHEDULE 5.14-I lists all Plans and separately identifies all
Pension Plans, including Title IV Plans, Multiemployer Plans, ESOPs and Welfare
Plans, including all Retiree Welfare Plans. Copies of all such listed Plans
(except for Multiemployer Plans), together with a copy of the latest form
IRS/DOL 5500-series for each such Plan (except for Multiemployer Plans) have
been delivered to Agent. Except with respect to Multiemployer Plans, each
Qualified Plan has been determined by the IRS to qualify under Section 401 of
the IRC, the trusts created thereunder have been determined to be exempt from
tax under the provisions of Section 501 of the IRC, and nothing has occurred
that would cause the loss of such qualification or tax-exempt status. Except as
set forth on SCHEDULE 5.14-II, each Plan is in compliance with the applicable
provisions of ERISA and the IRC, including the timely filing of all reports
required under the IRC or ERISA the noncompliance with which could reasonably be
expected to have a Material Adverse Effect. Neither any Credit Party nor ERISA
Affiliate has incurred or expects to incur any liability in connection with an
accumulated funding deficiency under Section 412 of the IRC. Neither any Credit
Party nor ERISA Affiliate has engaged in a "prohibited transaction," as defined
in Section 406 of ERISA and Section 4975 of the IRC, in connection with any
Plan, that would subject any Credit Party to a material tax on prohibited
transactions imposed by Section 502(i) of ERISA or Section 4975 of the IRC.
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(b) Except as set forth in SCHEDULE 5.14-III: (i) no Title IV Plan
has any Unfunded Pension Liability; (ii) no ERISA Event or event described in
Section 4062(e) of ERISA with respect to any Title IV Plan has occurred or is
reasonably expected to occur which could reasonably be expected to have a
Material Adverse Effect; (iii) there are no pending, or to the knowledge of any
Borrower, threatened claims (other than claims for benefits in the normal course
and domestic relations orders), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Credit Party or ERISA Affiliate has incurred or reasonably expects to
incur any withdrawal liability from a Multiemployer Plan; (v) all terminated
Title IV Plans have been terminated in accordance with ERISA and the IRC and no
Credit Party or ERISA Affiliate has any remaining liability or obligation with
respect to any terminated Title IV Plan; (vi) except in the case of any ESOP,
Stock of all Credit Parties and their ERISA Affiliates makes up, in the
aggregate, no more than 10% of fair market value of the assets of any Plan
measured on the basis of fair market value as of the latest valuation date of
any Plan; and (vii) no liability under any Title IV Plan has been satisfied with
the purchase of a contract from an insurance company that is not rated AAA by
S&P or an equivalent rating by another nationally recognized rating agency.
(c) With respect to each scheme or arrangement mandated by a
government other than the United States providing for post-employment benefits
(a "FOREIGN GOVERNMENT SCHEME OR ARRANGEMENT") and with respect to each employee
benefit plan maintained or contributed to by any Credit Party or any Subsidiary
of any Credit Party that is not subject to United States law providing for
post-employment benefits (a "FOREIGN PLAN"): (i) all material employer and
employee contributions required by law or by the terms of any Foreign Government
Scheme or Arrangement or any Foreign Plan have been made, or, if applicable,
accrued, in accordance with normal accounting practices; (ii) the liability of
each Credit Party and each Subsidiary of a Credit Party with respect to a
Foreign Plan is reflected in accordance with normal accounting practices on the
financial statements of such Credit Party or such Subsidiary, as the case may
be; and (iii) each Foreign Plan required to be registered has been registered
and has been maintained in good standing with applicable regulatory authorities
unless, in each case, the failure to do so would not be reasonably likely to
have a Material Adverse Effect.
Section 5.15 BROKERS.
No broker or finder acting on behalf of any Credit Party or Affiliate
thereof brought about the obtaining, making or closing of the Loans or the
Related Transactions, and no Credit Party or Affiliate thereof has any
obligation to any Person in respect of any finder's or brokerage fees in
connection therewith.
Section 5.16 DEPOSIT AND DISBURSEMENT ACCOUNTS.
SCHEDULE 5.16 lists all banks and other financial institutions at
which any Credit Party maintains deposit or other accounts as of the Closing
Date, including any Disbursement Accounts, and such Schedule correctly
identifies the name, address and
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telephone number of each depository, the name in which the account is held, a
description of the purpose of the account, and the complete account number
therefor.
Section 5.17 AGREEMENTS AND OTHER DOCUMENTS.
As of the Closing Date, each Credit Party has provided to Agent or its
counsel, on behalf of Lenders, accurate and complete copies (or summaries) of
all of the following agreements or documents to which it is subject and each of
which is listed in SCHEDULE 5.17: supply agreements and purchase agreements not
terminable by such Credit Party within sixty (60) days following written notice
issued by such Credit Party and involving transactions in excess of the Dollar
Equivalent of US$3,000,000 per annum; leases of Equipment having a remaining
term of one year or longer and requiring aggregate rental and other payments in
excess of the Dollar Equivalent of US$500,000 per annum; licenses and permits
held by the Credit Parties, the absence of which could reasonably be expected to
have a Material Adverse Effect; instruments and documents evidencing any
Indebtedness or Guaranteed Indebtedness of such Credit Party and any Lien
granted by such Credit Party with respect thereto; and instruments and
agreements evidencing the issuance of any equity securities, warrants, rights or
options to purchase equity securities of such Credit Party.
Section 5.18 INSURANCE.
SCHEDULE 5.18 lists all insurance policies of any nature maintained,
as of the Closing Date, for current occurrences by each Credit Party, as well as
a summary of the key business terms of each such policy such as deductibles,
coverage limits and term of policy.
Section 5.19 ACQUISITION AGREEMENT.
As of the Original Closing Date, Borrowers have delivered to Agent a
complete and correct copy of the Acquisition Agreement (including all schedules,
exhibits, amendments, supplements, modifications, assignments and all other
documents delivered pursuant thereto or in connection therewith). No Credit
Party and, to the knowledge of any Credit Party, no other Person party thereto
is in default in the performance or compliance with any provisions thereof. The
Acquisition Agreement complies with, and the Acquisition has been consummated in
all material respects in accordance with, all applicable laws. The Acquisition
Agreement is in full force and effect as of the Closing Date and has not been
terminated, rescinded or withdrawn. All requisite approvals by Governmental
Authorities having jurisdiction over Sellers, any Credit Party and other Persons
referenced therein, with respect to the transactions contemplated by the
Acquisition Agreement, have been obtained, and no such approvals impose any
conditions to the consummation of the transactions contemplated by the
Acquisition Agreement or to the conduct by any Credit Party of its business
thereafter. To each Borrower's knowledge, none of any Seller's representations
or warranties in the Acquisition Agreement contains any untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading. Notwithstanding anything contained in the Acquisition Agreement to
the contrary, such representations and warranties of the Credit Parties (other
than representations and warranties that were made by any Credit Party in its
capacity as an entity being sold pursuant to the Acquisition
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Agreement) are incorporated into this Agreement by this SECTION 5.19 and shall,
solely for purposes of this Agreement and the benefit of Agent and Lenders,
survive the consummation of the Acquisition.
Section 5.20 EUROPEAN MERGERS.
The applicable Credit Parties have filed all necessary documents that
may be filed as of the Closing Date, and will file all remaining necessary
documents at the appropriate times after the Closing Date, with all applicable
Governmental Authorities and with all other applicable Persons to complete the
European Mergers in the manner required by SECTION 2.9 and none of the Credit
Parties reasonably expects that the European Mergers will not be completed
within forty (40) days of the Closing Date.
SECTION 6
DEFAULT, RIGHTS AND REMEDIES
Section 6.1 EVENT OF DEFAULT.
"EVENT OF DEFAULT" shall mean the occurrence or existence of any one
or more of the following:
(a) PAYMENT. (1) Failure to pay any installment or other payment
of principal of any Loan when due, or to repay Revolving Loans to reduce their
balance to the maximum amount of Revolving Loans then permitted to be
outstanding or to reimburse any L/C Issuer for any payment made by such L/C
Issuer under or in respect of any Letter of Credit when due or (2) failure to
pay, within three (3) days after the due date, any interest on any Loan or any
other amount due under this Agreement or any of the other Loan Documents; or
(b) DEFAULT IN OTHER AGREEMENTS.
(1) With respect to any Indebtedness of any Credit Party (other
than an Immaterial Credit Party so long as no other Credit Party, other
than another Immaterial Credit Party, is obligated in any manner with
respect to such Indebtedness) or any of its Subsidiaries, (x) any Credit
Party or any of its Subsidiaries fails to pay when due or within any
applicable grace period any principal or interest on Indebtedness (other
than the Loans) having an individual principal amount in excess of the
Dollar Equivalent of US$1,500,000 or having an aggregate principal amount
in excess of the Dollar Equivalent of US$3,000,000 or (y) the occurrence of
any breach, default or any other condition or event with respect to any
Indebtedness (other than the Loans), if the effect of such breach, default
or occurrence is to cause or to permit the holder or holders then to cause
Indebtedness having an individual principal amount in excess of the Dollar
Equivalent of US$1,500,000 or having an aggregate principal amount in
excess of the Dollar Equivalent of US$3,000,000 to become or be declared
due prior to its stated maturity; provided however that an Event of Default
under this clause (1) shall not have occurred with respect to such
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failure to pay, breach, default or occurrence in the event that (A) such
Credit Party is in good faith disputing whether any such failure to pay,
breach, default or occurrence has occurred and such Credit Party has
deposited with a Person acceptable to Agent and in a manner acceptable to
Agent cash in an amount equal to the full principal amount of such
Indebtedness that is then due, has so become due or could so be declared
due prior to its stated maturity and as a result of such deposit the
enforcement of such Indebtedness has been stayed, (B) assuming that the
full amount of such Indebtedness was then due, Borrowers are in compliance
on a pro forma basis with the covenants set forth in SECTION 4 recomputed
for the most recently ended quarter for which information is available and
(C) after giving effect to such deposit, US Borrowing Availability plus
European Borrowing Availability equals or exceeds the Dollar Equivalent of
US$5,000,000; or
(2) with respect to any Contingent Obligation of any Credit Party
(other than an Immaterial Credit Party so long as no other Credit Party,
other than another Immaterial Credit Party, is obligated in any manner with
respect to such Contingent Obligation) or any of its Subsidiaries, (x) any
Credit Party of any of its Subsidiaries fails to pay when due or within any
applicable grace period any Contingent Obligations having an individual
principal amount in excess of the Dollar Equivalent of US$1,500,000 or
having an aggregate principal amount in excess of the Dollar Equivalent of
US$3,000,000 or (y) the occurrence of any condition or event, with respect
to any Contingent Obligations, if the effect of such occurrence is to cause
or to permit the holder or holders then to cause Contingent Obligations
having an individual principal amount in excess of the Dollar Equivalent of
US$1,500,000 or having an aggregate principal amount in excess of the
Dollar Equivalent of US$3,000,000 to become or be declared due prior to
their stated maturity; provided that an Event of Default shall not have
occurred under this clause (2) with respect to such failure to pay or
occurrence in the event: (A) there is sufficient US Borrowing Availability
or European Borrowing Availability, as applicable, such that Agent could
institute a Reserve (which Borrowers hereby acknowledge that Agent is
hereby authorized to so institute) against the US Borrowing Base (in the
event that a US Credit Party is obligated with respect to the Contingent
Obligation) or the European Borrowing Base (in the event that a Non-US
Credit Party is obligated with respect to the Contingent Obligation) for
the full amount of the Contingent Obligation that so has become due or so
could be declared due without causing an Overadvance and (B) assuming that
the full amount of such Contingent Obligation was then due, Borrowers are
in compliance on a pro forma basis with the covenants set forth in SECTION
4 recomputed for the most recently ended quarter for which information is
available; or
(3) the occurrence of any "Event of Default" as defined in the
Initial Public Note Indenture or any similar event pertaining to any
Refinanced Public Note Debt; or
(c) BREACH OF CERTAIN PROVISIONS. Failure of any Credit Party to
perform or comply with any term or condition contained in (1) SECTION 2.9,
SECTION 3 (other than SECTION 3.9) or SECTION 4 (other than SECTION 4.8, unless
any Borrower fails to perform or comply
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with any term or condition contained in SECTION 4.8(a), 4.8(b), 4.8(d), 4.8(h),
4.8(j), 4.8(k) or 4.8(n) and such failure occurs more than four (4) times during
any twelve (12) month period); or (2) that portion of SECTION 2.2 relating to
Borrower's obligation to maintain insurance and such failure is not remedied or
waived within five (5) days of such failure; or (3) SECTION 2.3, 3.9, 4.8(a),
4.8(b), 4.8(d), 4.8(h), 4.8(j), 4.8(k) or 4.8(n) (other than failures covered by
clause (1) above) and such failure is not remedied or waived within ten (10)
days of such failure; or
(d) BREACH OF WARRANTY. Any representation, warranty,
certification or other statement made by any Credit Party in any Loan Document
or in any statement or certificate at any time given by such Person in writing
pursuant or in connection with any Loan Document is false in any material
respect on the date made; or
(e) OTHER DEFAULTS UNDER LOAN DOCUMENTS. Any Credit Party defaults
in the performance of or compliance with any term contained in this Agreement or
any of the other Loan Documents (other than occurrences described in other
provisions of this SECTION 6.1 for which a different grace or cure period is
specified, or for which no cure period is specified and which constitute
immediate Events of Default) and such default is not remedied or waived within
thirty (30) days after the earlier of (1) receipt by Borrower Representative of
notice from Agent or Requisite Lenders of such default or (2) knowledge of any
Borrower of such default; or
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (1) A
court enters a decree or order for relief with respect to any Credit Party
(other than an Immaterial Credit Party) in an involuntary case or proceeding
under the Bankruptcy Code, which decree or order is not stayed or other similar
relief is not granted under any applicable federal or state or other law; or (2)
the continuance of any of the following events for sixty (60) days unless
dismissed, bonded or discharged: (a) an involuntary case or proceeding is
commenced against any Credit Party (other than an Immaterial Credit Party),
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or (b) a decree or order of a court for the appointment of
a receiver, interim receiver, receiver and manager, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over any Credit Party
(other than an Immaterial Credit Party), or over all or a substantial part of
its property, is entered; or (c) a receiver, interim receiver, receiver and
manager, trustee or other custodian is appointed without the consent of a Credit
Party (other than an Immaterial Credit Party), for all or a substantial part of
the property of the Credit Party (other than an Immaterial Credit Party); or (3)
there occurs any event with respect to any Credit Party (other than an
Immaterial Credit Party) in any non-US jurisdiction which is analogous with any
of the events described in clause (1) or (2) above; or
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (1) any
Credit Party (other than an Immaterial Credit Party) commences a voluntary case
or proceeding under the Bankruptcy Code, or consents to the entry of an order
for relief in an involuntary case or proceeding or to the conversion of an
involuntary case or proceeding to a voluntary case or proceeding under any such
law or consents to the appointment of or taking possession by a receiver,
interim receiver, receiver and manager, trustee or other custodian
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for all or a substantial part of its property; or (2) any Credit Party (other
than an Immaterial Credit Party) makes any assignment for the benefit of
creditors; or (3) the Board of Directors or Stockholders of any Credit Party
(other than an Immaterial Credit Party) adopts any resolution or otherwise
authorizes action to approve any of the actions referred to in this SECTION
6.1(g); or (4) there occurs any event with respect to any Credit Party (other
than an Immaterial Credit Party) in any non-US jurisdiction which is analogous
with any of the events described in clause (1) or (2) or (3) above; or
(h) JUDGMENT AND ATTACHMENTS. Any money judgment (other than those
described elsewhere in this SECTION 6.1) involving (1) an amount in any
individual case in excess of the Dollar Equivalent of US$1,000,000 or (2) an
amount in the aggregate at any time in excess of Dollar Equivalent of
US$2,500,000 (in either case to the extent not adequately covered by insurance)
is entered or filed against one or more of the Credit Parties or any of their
respective assets and remains undischarged, unvacated, unbonded or unstayed for
a period of thirty (30) days or in any event later than five (5) Business Days
prior to the date of any proposed sale of assets related to such judgment with a
fair market or book value in excess of the Dollar Equivalent of US$500,000; or
(i) DISSOLUTION. Any order, judgment or decree is entered against
any Credit Party decreeing the dissolution, winding up or split up of such
Credit Party that is not permitted hereunder and such order remains
undischarged, unvacated, unbonded or unstayed for a period in excess of fifteen
(15) days; or
(j) SOLVENCY. Any Credit Party (other than an Immaterial Credit
Party) admits in writing its inability to pay its debts as they become due; or
(k) INVALIDITY OF LOAN DOCUMENTS. Any of the Loan Documents (or
any of the Liens granted thereunder, as applicable, to Agent on behalf of
Lenders) for any reason, other than a partial or full release in accordance with
the terms thereof, ceases to be in full force and effect (or with respect to
Liens, ceases to be perfected) or is declared to be null and void (and, if such
invalidity is such so as to be amenable to cure without disadvantaging the
position of the Lenders thereunder, the Borrowers shall have failed to cure such
invalidity within thirty (30) days after notice from the Agent), or any Credit
Party denies that it has any further liability under any Loan Documents to which
it is party, or gives notice to such effect (except as such Loan Documents may
be terminated or no longer in force and effect in accordance with the terms
thereof); or
(l) DAMAGE; CASUALTY. Any event occurs, whether or not insured or
insurable, as a result of which revenue-producing activities cease or are
substantially curtailed at any facility of any Credit Party generating more than
10% of the EBITDA of Ultimate Holdings, Borrowers and their Subsidiaries for the
Fiscal Year preceding such event and such cessation or curtailment continues for
more than thirty (30) consecutive days; or
(m) BUSINESS ACTIVITIES. (1) Ultimate Holdings engages in any type
of business activity other than the ownership of Stock of Holdings and
performance of its
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obligations under the Related Transaction Documents to which it is a party and
activities reasonably related thereto in its capacity as a passive holding
company, (2) Holdings engages in any type of business activity other than the
ownership of Stock of US SportRack Holdings, Valley US Borrower and European US
Holdings and activities reasonably related thereto in its capacity as a passive
holding company, (3) US SportRack Holdings engages in any type of business
activity other than the ownership of Stock of SportRack US Borrower and
activities reasonably related thereto in its capacity as a passive holding
company, (4) European US Holdings engages in any type of business activity other
than the ownership of Stock of European First Tier Dutch Holdings and activities
reasonably related thereto in its capacity as a passive holding company, (5)
European First Tier Dutch Holdings engages in any type of business activity
other than the ownership of Stock of European Second Tier Dutch Holdings prior
to the European Mergers, ownership of Stock of European Borrower after the
European Mergers, and activities reasonably related thereto in its capacity as a
passive holding company, or (6) prior to the European Mergers, European Second
Tier Dutch Holdings engages in any type of business activity other than the
ownership of Stock of European Borrower or ownership of Stock of CHAAS Holdings
II B.V.; or
(n) CHANGE OF CONTROL. A Change of Control occurs; or
(o) SUBORDINATED INDEBTEDNESS. The failure of any Credit Party to
comply with the terms of any subordination or intercreditor agreement or any
subordination provisions of any note or other document running to the benefit of
Agent or Lenders, or if any such terms or provisions become null and void or any
Credit Party denies further liability under any such terms or provisions or
provides notice to that effect.
Section 6.2 SUSPENSION OR TERMINATION OF COMMITMENTS.
Upon the occurrence of any Event of Default, Agent may, and at the
request of Requisite Revolving Lenders Agent shall, upon notice (provided that
no such notice is required if any Event of Default described in SECTION 6.1(f)
or 6.1(g) is in existence), immediately suspend or terminate all or any portion
of Lenders' obligations to make additional Loans or issue or cause to be issued
Letters of Credit under the Revolving Loan Commitment.
Section 6.3 ACCELERATION AND OTHER REMEDIES.
Upon the occurrence of any Event of Default described in SECTION
6.1(f) or 6.1(g), the Commitments shall be immediately terminated and all of the
Obligations, including the Revolving Loans, shall automatically become
immediately due and payable, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other requirements of any kind,
all of which are hereby expressly waived (including for purposes of SECTION 10)
by Borrowers, and the Commitments shall thereupon terminate. Upon the occurrence
and during the continuance of any other Event of Default, Agent may, and at the
request of the Requisite Lenders, Agent shall, by written notice to Borrower
Representative (a) reduce the aggregate amount of the Commitments from time to
time, (b) declare all of the Loans and all other Obligations, all of the US
Loans and all other
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Obligations relating thereto and/or all of the European Loans and all other
European Obligations to be, and the same shall forthwith become, immediately due
and payable together with accrued interest thereon, (c) terminate all or any
portion of the obligations of Agent, L/C Issuers and Lenders to make Revolving
Credit Advances and issue Letters of Credit, (d) demand that Borrowers
immediately deliver cash to Agent for the benefit of L/C Issuers (and Borrower
shall then immediately so deliver) in an amount equal to 105% of the aggregate
outstanding Letter of Credit Obligations and (e) exercise any other remedies
which may be available under the Loan Documents or applicable law. Upon (i) the
acceleration of any of the Loans (so long as such acceleration has not been
withdrawn or rescinded) pursuant to this SECTION 6.3, or (ii) the occurrence of
an Event of Default under SECTION 6.1(a) resulting from the Loans and other
Obligations not being repaid in full on the US Commitment Termination Date, each
Lender, acting through the Agent, shall have the right, but not the obligation,
to exercise a one time only right to cause all or any portion of such Lender's
interest (direct or by way of participation) in the then outstanding European
Loans (and the European Revolving Loan Commitment) owing to such European Lender
to be denominated in Dollars beginning on the date of the occurrence of such
acceleration or Event of Default (the "CONVERSION DATE"), and to be payable in
Dollars thereafter. The Agent may exercise such right by giving the Borrower
Representative notice of such election and the portion of such Loans that Agent
wishes to denominate in Dollars. The conversion of a Euro-denominated Loan into
a Dollar-denominated loan pursuant to the two preceding sentences shall be at
the Exchange Rate in effect as of the Conversion Date. Borrowers hereby grant to
Agent, for the benefit of L/C Issuers and each Lender with a participation in
any Letters of Credit then outstanding, a security interest in such cash
collateral to secure all of the Letter of Credit Obligations. Any such cash
collateral shall be made available by Agent to L/C Issuers to reimburse L/C
Issuers for payments of drafts drawn under such Letters of Credit and any Fees,
Charges and expenses of L/C Issuers with respect to such Letters of Credit and
the unused portion thereof, after all such Letters of Credit shall have expired
or been fully drawn upon, shall be applied to repay any other Obligations. After
all such Letters of Credit shall have expired or been fully drawn upon and all
Obligations shall have been satisfied and paid in full, the balance, if any, of
such cash collateral shall be returned to Borrowers. Borrowers shall from time
to time execute and deliver to Agent such further documents and instruments as
Agent may request with respect to such cash collateral.
Section 6.4 PERFORMANCE BY AGENT.
During the continuance of an Event of Default and upon notice by Agent
to Borrower Representative, if any Credit Party shall fail to perform any
covenant, duty or agreement contained in any of the Loan Documents, Agent may
perform or attempt to perform such covenant, duty or agreement on behalf of such
Credit Party after the expiration of any cure or grace periods set forth herein.
In such event, such Credit Party shall, at the request of Agent, promptly pay
any amount reasonably expended by Agent in such performance or attempted
performance to Agent, together with interest thereon at the highest rate of
interest in effect upon the occurrence of an Event of Default as specified in
SECTION 1.2(e) from the date of such expenditure until paid. Notwithstanding the
foregoing, it is expressly agreed that Agent shall not have any liability or
responsibility for the
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performance of any obligation of any Credit Party under this Agreement or any
other Loan Document.
Section 6.5 APPLICATION OF PROCEEDS/LENDER RISK ALLOCATION
AGREEMENT.
Notwithstanding anything to the contrary contained in this Agreement,
upon the occurrence and during the continuance of an Event of Default,
(a) Borrowers irrevocably waive the right to direct the
application of any and all payments at any time or times thereafter received by
Agent from or on behalf of Borrowers, and Agent shall have the continuing and
exclusive right (to the extent permitted by mandatory provisions of applicable
law) to apply and to reapply any and all payments received at any time or times
after the occurrence and during the continuance of an Event of Default against
the Obligations in such manner as Agent may deem advisable notwithstanding any
previous application by Agent; provided that (i) payments by the European
Borrower shall be applied to the European Obligations and proceeds of Collateral
shall only be applied to the Obligations that are secured by such Collateral (it
being understood that this proviso does not in any way limit the provisions of
the Lender Risk Allocation Agreement) and (ii) such payments shall only be
applied to Obligations then due (whether such Obligations are then due by
acceleration or otherwise) and any balance remaining shall be delivered to
Borrowers or to whomever may be lawfully entitled to receive such balance or as
a court of competent jurisdiction may direct;
(b) Subject to clause (a) above, in the absence of a specific
determination by Agent with respect thereto, the proceeds of any sale of, or
other realization upon, all or any part of the Collateral granted by a US Credit
Party (or with respect to Stock pledged pursuant to a Pledge Agreement, all or
any part of such Stock which is issued by a US Credit Party or, after
application as provided in clause (c) below, which is issued by a Non-US Credit
Party to the extent such Pledge Agreement secures the US Loans) shall be (to the
extent permitted by mandatory provisions of applicable law) applied to
Obligations then due (whether such Obligations are then due by acceleration or
otherwise): FIRST, to all Fees, costs and expenses incurred by or owing to Agent
and any Lender with respect to this Agreement, the other Loan Documents or the
Collateral; SECOND, to accrued and unpaid interest on the Obligations pertaining
to the US Loans (including any interest which but for the provisions of the
Bankruptcy Code, would have accrued on such amounts); THIRD, to the principal
amount of the Obligations outstanding pertaining to the US Loans; FOURTH, to
accrued and unpaid interest on the Obligations pertaining to the European Loans
(including any interest which but for the provisions of the Bankruptcy Code,
would have accrued on such amounts); FIFTH, to the principal amount of the
Obligations outstanding pertaining to the European Loans; sixth, to any other
Obligations of US Borrowers owing to Agent or any US Lender under any Loan
Document; and SEVENTH, to any other Obligations of European Borrower owing to
Agent or any European Lender under any Loan Document; and
(c) Subject to clause (a) above, in the absence of a specific
determination by Agent with respect thereto, the proceeds of any sale of, or
other realization upon, all or any part of the Collateral granted by a Non-US
Credit Party (or with respect to Stock pledged
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pursuant to a Pledge Agreement, all or any part of such Stock which is issued by
a Non-US Credit Party) shall be (to the extent permitted by mandatory provisions
of applicable law) applied to Obligations then due (whether such Obligations are
then due by acceleration or otherwise): FIRST, to all Fees, costs and expenses
incurred by or owing to Agent and any Lender with respect to this Agreement, the
other Loan Documents or the Collateral; SECOND, to accrued and unpaid interest
on the Obligations pertaining to the European Loans (including any interest
which but for the provisions of the Bankruptcy Code, would have accrued on such
amounts); third, to the principal amount of the Obligations outstanding
pertaining to the European Loans; and FOURTH, to any other European Obligations
owing to Agent or any Lender under any Loan Document.
In the case of each of clause (b) and (c) above, (i) any balance remaining shall
be delivered to Borrowers or to whomever may be lawfully entitled to receive
such balance or as a court of competent jurisdiction may direct and (ii) solely
as among the Lenders, such proceeds shall be allocated among the Lenders as
provided in the Lender Risk Allocation Agreement.
SECTION 7
CONDITIONS TO LOANS
The obligations of Lenders and L/C Issuers to make Loans and to issue
or cause to be issued Letters of Credit are subject to satisfaction of all of
the applicable conditions set forth below.
Section 7.1 CONDITIONS TO INITIAL LOANS.
The obligations of Lenders and L/C Issuers to make the initial Loans
and to issue or cause to be issued Letters of Credit on the Closing Date are, in
addition to the conditions precedent specified in SECTION 7.2, subject to the
delivery of all documents listed on, the taking of all actions set forth on and
the satisfaction of all other conditions precedent listed in the Closing
Checklist attached hereto as ANNEX C, all in form and substance, or in a manner,
satisfactory to Agent and Lenders.
Section 7.2 CONDITIONS TO ALL LOANS.
Except as otherwise expressly provided herein, no Lender or L/C Issuer
shall be obligated to fund any Advance or incur any Letter of Credit Obligation,
if, as of the date thereof (the "FUNDING DATE"):
(a) any representation or warranty by any Credit Party contained
herein or in any other Loan Document is untrue or incorrect in any material
respect as of such date, except to the extent that such representation or
warranty expressly relates to an earlier date, and Agent or Requisite Revolving
Lenders have determined not to make such Advance or incur such Letter of Credit
Obligation as a result of the fact that such warranty or representation is
untrue or incorrect;
(b) any Default or Event of Default has occurred and is continuing
or would result after giving effect to any Advance (or the incurrence of any
Letter of Credit
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Obligation), and Agent or Requisite Revolving Lenders shall have determined not
to make any Advance or incur any Letter of Credit Obligation as a result of that
Default or Event of Default;
(c) since December 31, 2002 there have been events or changes in
facts or circumstances affecting any Credit Party or any of its Subsidiaries
which individually or in the aggregate have had or could reasonably be expected
to have a Material Adverse Effect and Agent or Requisite Revolving Lenders have
determined not to make such Advance or incur such Letter of Credit Obligation as
a result of such events or changes;
(d) after giving effect to any US Advance (or the incurrence of
any US Letter of Credit Obligations), the outstanding amount of the US Revolving
Loan would exceed remaining US Borrowing Availability (except as provided in
SECTION 1.1(c)(ii)); or
(e) after giving effect to any European Advance (or the incurrence
of any European Letter of Credit Obligations), the outstanding amount of the
European Revolving Loan would exceed remaining European Borrowing Availability
(except as provided in SECTION 1.1(d)(ii)).
The request and acceptance by any Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan shall be deemed to constitute, as of the
date thereof, (i) a representation and warranty by Borrowers that the conditions
in this SECTION 7.2 have been satisfied and (ii) a reaffirmation by US Borrowers
of the cross guaranty provisions set forth in SECTION 10 and of the granting and
continuance of Agent's Liens, on behalf of itself and Lenders, pursuant to the
Collateral Documents.
SECTION 8
ASSIGNMENT AND PARTICIPATION/AGENCY PROVISIONS
Section 8.1 ASSIGNMENT AND PARTICIPATIONS.
(a) Subject to the terms of this SECTION 8.1, any Lender may make
an assignment to a Person of, or sale of participations in, at any time or
times, the Loan Documents, Loans, Letter of Credit Obligations and any
Commitment or any portion thereof or interest therein, including any Lender's
rights, title, interests, remedies, powers or duties thereunder. Any assignment
by a Lender shall: (i) require the consent of Agent (which consent shall not be
unreasonably withheld or delayed with respect to a Qualified Assignee) and the
execution of an assignment agreement (an "ASSIGNMENT AGREEMENT" substantially in
the form attached hereto as EXHIBIT 8.1 and otherwise in form and substance
reasonably satisfactory to, and acknowledged by, Agent); (ii) be conditioned on
such assignee Lender representing to the assigning Lender and Agent that it is
purchasing the applicable Loans to be assigned to it for its own account, for
investment purposes and not with a view to the distribution thereof; (iii) other
than with respect to assignments to Affiliates covered by clause (z) below,
after giving effect to any such partial assignment, the assignee Lender shall
have Commitments in an amount at least equal to (x) with respect to the US
Loans,
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US$5,000,000 and the assigning Lender shall have retained Commitments in an
amount at least equal to US$5,000,000 and (y) with respect to the European
Loans, 5,000,000 Euros and the assigning Lender shall have retained Commitments
in an amount at least equal to 5,000,000 Euros; (iv) require a payment to Agent
of an assignment fee of US$3,500; (v) include an assignment of such Lender's
rights and obligations under the Lender Risk Allocation Agreement in the manner
provided in the Assignment Agreement; (vi) with respect to any assignment of any
European Loans, the assignee Lender shall make the representations and
warranties required by it under SECTION 1.11, (vii) shall execute and deliver to
Agent an Accession Deed to that certain Intercreditor Agreement dated as of the
Closing Date among European Borrower, Agent, European Lenders and each Non-US
Subsidiary incorporated in Europe and (viii) so long as no Event of Default has
occurred and is continuing, require the consent of Borrower Representative,
which shall not be unreasonably withheld or delayed and shall be deemed granted
if not objected to within three (3) Business Days following notice thereof to
Borrower Representative. Notwithstanding the above, Agent may in its sole and
absolute discretion prohibit any assignment by a Lender to a Person or Persons
that are not Qualified Assignees. In the case of an assignment by a Lender under
this SECTION 8.1, the assignee shall have, to the extent of such assignment, the
same rights, benefits and obligations as all other Lenders hereunder. The
assigning Lender shall be relieved of its obligations hereunder with respect to
its Commitments or assigned portion thereof from and after the date of such
assignment. Borrowers hereby acknowledge and agree that any assignment shall
give rise to a direct obligation of Borrowers to the assignee and that the
assignee shall be considered to be a "Lender." In all instances, each Lender's
liability to make Loans hereunder shall be several and not joint and shall be
limited to such Lender's Pro Rata Share of the applicable Commitment. In the
event Agent or any Lender assigns or otherwise transfers all or any part of the
Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers
shall, upon the request of Agent or such Lender, execute new Notes in exchange
for the Notes, if any, being assigned. Notwithstanding the foregoing provisions
of this SECTION 8.1(a), (w) any Lender may at any time pledge the Obligations
held by it and such Lender's rights under this Agreement and the other Loan
Documents to a Federal Reserve Bank, (x) any Lender may assign the Obligations
held by it and such Lender's rights under this Agreement and the other Loan
Documents to an investment fund managed by such Lender, (y) any Lender that is
an investment fund may assign the Obligations held by it and such Lender's
rights under this Agreement and the other Loan Documents to another investment
fund managed by the same investment advisor or pledge such Obligations and
rights to trustee for the benefit of its investors and (z) any Lender may assign
the Obligations to an Affiliate of such Lender or to a Person that is a Lender
prior to the date of such assignment.
(b) Any participation by a Lender of all or any part of its
Commitments shall be made with the understanding that all amounts payable by
Borrowers hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the principal
amount of any
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Loan in which such holder participates or the final maturity date thereof, and
(iii) any release of all or substantially all of the Collateral (other than in
accordance with the terms of this Agreement, the Collateral Documents or the
other Loan Documents). Solely for purposes of SECTIONS 1.8, 1.9, 8.3 and 9.1,
Borrowers acknowledge and agree that a participation shall give rise to a direct
obligation of Borrowers to the participant and the participant shall be
considered to be a "Lender." Except as set forth in the preceding sentence no
Borrower or any other Credit Party shall have any obligation or duty to any
participant. Neither Agent nor any Lender (other than the Lender selling a
participation) shall have any duty to any participant and may continue to deal
solely with the Lender selling a participation as if no such sale had occurred.
(c) Except as expressly provided in this SECTION 8.1, no Lender
shall, as between Borrowers and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party shall assist each Lender permitted to sell
assignments or participations under this SECTION 8.1 as required to enable the
assigning or selling Lender to effect any such assignment or participation,
including the execution and delivery of any and all agreements, notes and other
documents and instruments as shall be reasonably requested and the preparation
of disclosure documents and private placement memorandum. Agent shall maintain,
on behalf of Borrowers, in its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a "register" for recording the name, address, commitment
and Loans owing to each Lender. The entries in such register shall be
presumptive evidence of the amounts due and owing to each Lender in the absence
of manifest error. Borrowers, Agent and each Lender shall treat each Person
whose name is recorded in such register pursuant to the terms hereof as a Lender
for all purposes of this Agreement. The register described herein shall be
available for inspection by Borrower Representative and any Lender, at any
reasonable time upon reasonable prior notice.
(e) A Lender may furnish any information concerning Credit Parties
in the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants); provided that such Lender
shall obtain from assignees or participants confidentiality covenants
substantially equivalent to those contained in SECTION 9.13.
(f) So long as no Event of Default has occurred and is continuing,
no Lender shall assign or sell participations in any portion of its Loans or
Commitments to a potential Lender or participant, if, as of the date of the
proposed assignment or sale, the assignee Lender or participant would be subject
to capital adequacy or similar requirements under SECTION 1.8(a), increased
costs or an inability to fund LIBOR Loans under SECTION 1.8(b), or withholding
taxes in accordance with SECTION 1.9.
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Section 8.2 AGENT.
(a) APPOINTMENT. Each Lender hereby designates and appoints GE
Capital as its Agent under this Agreement and the other Loan Documents
(including as trustee or pledgee under Collateral Documents, as applicable), and
each Lender hereby irrevocably authorizes Agent to execute and deliver the
Collateral Documents and to take such action or to refrain from taking such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto.
Additionally each Lender hereby designates GE Capital as "Senior Agent" under
the Subordinated Seller PIK Notes. Agent is authorized and empowered to amend,
modify, or waive any provisions of this Agreement or the other Loan Documents on
behalf of Lenders subject to the requirement that certain of Lenders' consent be
obtained in certain instances as provided in this SECTION 8.2 and SECTION 9.2.
The provisions of this SECTION 8.2 are solely for the benefit of Agent and
Lenders and neither Borrowers nor any other Credit Party shall have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, Agent shall act solely as agent of
Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for Borrowers or
any other Credit Party. Agent may perform any of its duties hereunder, or under
the Loan Documents, by or through its agents or employees.
(b) NATURE OF DUTIES. The duties of Agent shall be mechanical and
administrative in nature. Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Agreement or
any of the Loan Documents, express or implied, is intended to or shall be
construed to impose upon Agent any obligations in respect of this Agreement or
any of the Loan Documents except as expressly set forth herein or therein. Each
Lender shall make its own independent investigation of the financial condition
and affairs of each Credit Party in connection with the extension of credit
hereunder and shall make its own appraisal of the creditworthiness of each
Credit Party, and Agent shall have no duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto (other than as expressly required herein). If
Agent seeks the consent or approval of any Lenders to the taking or refraining
from taking any action hereunder, then Agent shall send notice thereof to each
Lender. Agent shall promptly notify each Lender any time that the Requisite
Lenders, Requisite Revolving Lenders or Supermajority Revolving Lenders have
instructed Agent to act or refrain from acting pursuant hereto.
(c) RIGHTS, EXCULPATION, ETC. Neither Agent nor any of its
officers, directors, employees or agents shall be liable to any Lender for any
action taken or omitted by them hereunder or under any of the Loan Documents, or
in connection herewith or therewith, except that Agent shall be liable to the
extent of its own gross negligence or willful misconduct as determined by a
final non-appealable order by a court of competent jurisdiction. Agent shall not
be liable for any apportionment or distribution of payments made by it in good
faith and if any such apportionment or distribution is subsequently determined
to have been made in error the sole recourse of any Lender to whom payment was
due but not made, shall be to recover from other Lenders any payment in excess
of the amount to
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which they are determined to be entitled (and such other Lenders hereby agree to
return to such Lender any such erroneous payments received by them). In no event
shall Agent be liable for punitive, special, consequential, incidental,
exemplary or other similar damages. In performing its functions and duties
hereunder, Agent shall exercise the same care which it would in dealing with
loans for its own account, but neither Agent nor any of its agents or
representatives shall be responsible to any Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility, or sufficiency of this
Agreement or any of the Loan Documents or the transactions contemplated thereby,
or for the financial condition of any Credit Party. Agent shall not be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or any of the Loan
Documents or the financial condition of any Credit Party, or the existence or
possible existence of any Default or Event of Default. Agent may at any time
request instructions from Requisite Lenders, Requisite Revolving Lenders,
Supermajority Revolving Lenders or all affected Lenders with respect to any
actions or approvals which by the terms of this Agreement or of any of the Loan
Documents Agent is permitted or required to take or to grant. If such
instructions are promptly requested, Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Requisite Lenders, Requisite Revolving
Lenders, Supermajority Revolving Lenders or such other portion of the Lenders as
shall be prescribed by this Agreement. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against Agent as a result of Agent
acting or refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite Lenders, Requisite
Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders, as
applicable; and, notwithstanding the instructions of Requisite Lenders,
Requisite Revolving Lenders, Supermajority Revolving Lenders or all affected
Lenders, as applicable, Agent shall have no obligation to take any action if it
believes, in good faith, that such action is deemed to be illegal by Agent or
exposes Agent to any liability for which it has not received satisfactory
indemnification in accordance with SECTION 8.2(e).
(d) RELIANCE. Agent shall be entitled to rely, and shall be fully
protected in relying, upon any written or oral notices, statements,
certificates, orders or other documents or any telephone message or other
communication (including any writing, telex, fax or telegram) believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person, and with respect to all matters pertaining to this Agreement
or any of the Loan Documents and its duties hereunder or thereunder. Agent shall
be entitled to rely upon the advice of legal counsel, independent accountants,
and other experts selected by Agent in its sole discretion.
(e) INDEMNIFICATION. Lenders will reimburse and indemnify Agent
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, attorneys' fees and expenses), advances or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by, or
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asserted against Agent in any way relating to or arising out of this Agreement
or any of the Loan Documents or any action taken or omitted by Agent under this
Agreement or any of the Loan Documents, in proportion to each Lender's Pro Rata
Share, but only to the extent that any of the foregoing is not reimbursed by
Borrowers; PROVIDED, HOWEVER, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, advances or disbursements to the extent resulting from
Agent's gross negligence or willful misconduct as determined by a final
non-appealable order by a court of competent jurisdiction. If any indemnity
furnished to Agent for any purpose shall, in the opinion of Agent, be
insufficient or become impaired, Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against even if so directed
by the Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving
Lenders or such other portion of the Lenders as shall be prescribed by this
Agreement until such additional indemnity is furnished. The obligations of
Lenders under this SECTION 8.2(e) shall survive the payment in full of the
Obligations and the termination of this Agreement.
(f) GE CAPITAL INDIVIDUALLY. With respect to its Commitments
hereunder, GE Capital shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "Lenders," "Requisite
Lenders," "Requisite Revolving Lenders," "Supermajority Revolving Lenders" or
any similar terms shall, unless the context clearly otherwise indicates, include
GE Capital in its individual capacity as a Lender or one of the Requisite
Lenders, Requisite Revolving Lenders or Supermajority Revolving Lenders. GE
Capital, either directly or through strategic affiliations, may lend money to,
acquire equity or other ownership interests in, provide advisory services to and
generally engage in any kind of banking, trust or other business with any Credit
Party as if it were not acting as Agent pursuant hereto and without any duty to
account therefor to Lenders. GE Capital, either directly or through strategic
affiliations, may accept fees and other consideration from any Credit Party for
services in connection with this Agreement or otherwise without having to
account for the same to Lenders.
(g) SUCCESSOR AGENT.
(i) RESIGNATION. Agent may resign from the performance of
all its agency functions and duties hereunder at any time by
giving at least thirty (30) Business Days' prior written notice
to Borrower Representative and Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of
appointment pursuant to clause (ii) below or as otherwise
provided in clause (ii) below.
(ii) APPOINTMENT OF SUCCESSOR. Upon any such notice of
resignation pursuant to clause (i) above, Requisite Lenders shall
appoint a successor Agent which, unless an Event of Default has
occurred and is continuing, shall be reasonably acceptable to
Borrowers. If a successor Agent shall not have been so appointed
within the thirty (30) Business Day period referred to in clause
(i) above, the retiring Agent, upon notice to Borrower
Representative, shall then
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appoint a successor Agent who shall serve as Agent until such time, if any,
as Requisite Lenders appoint a successor Agent as provided above.
(iii) SUCCESSOR AGENT. Upon the acceptance of any
appointment as Agent under the Loan Documents by a successor
Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Loan Documents. After any
retiring Agent's resignation as Agent, the provisions of this
SECTION 8.2 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it in its capacity as
Agent.
(h) COLLATERAL MATTERS.
(i) RELEASE OF COLLATERAL. Lenders hereby irrevocably
authorize Agent, at its option and in its discretion, to release
any Lien granted to or held by Agent upon any Collateral (x) upon
termination of the Commitments and payment and satisfaction of
all Obligations (other than contingent indemnification
obligations to the extent no claims giving rise thereto have been
asserted) or (y) constituting property being sold or disposed of
if Borrowers (or any of them) certify to Agent that the sale or
disposition is made in compliance with the provisions of this
Agreement (and Agent may rely in good faith conclusively on any
such certificate, without further inquiry).
(ii) CONFIRMATION OF AUTHORITY; EXECUTION OF RELEASES.
Without in any manner limiting Agent's authority to act without
any specific or further authorization or consent by Lenders (as
set forth in SECTION 8.2(h)(i)), each Lender agrees to confirm in
writing, upon request by Agent or Borrower Representative, the
authority to release any Collateral conferred upon Agent under
clauses (x) and (y) of SECTION 8.2(h)(i). Upon receipt by Agent
of any required confirmation from the Requisite Lenders of its
authority to release any particular item or types of Collateral,
and upon at least ten (10) Business Days' prior written request
by Borrower Representative, Agent shall (and is hereby
irrevocably authorized by Lenders to) execute such documents as
may be necessary to evidence the release of the Liens granted to
Agent upon such Collateral; PROVIDED, HOWEVER, that (x) Agent
shall not be required to execute any such document on terms
which, in Agent's opinion, would expose Agent to liability or
create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (y) such
release shall not in any manner discharge, affect or impair the
Obligations or any Liens upon (or obligations of any Credit
Party, in respect of), all interests retained by any Credit
Party, including the proceeds of any sale, all of which shall
continue to constitute part of the Collateral.
(iii) ABSENCE OF DUTY. Agent shall have no obligation
whatsoever to any Lender or any other Person to assure that the
property covered by the
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Collateral Documents exists or is owned by Borrowers or any other
Credit Party or is cared for, protected or insured or has been
encumbered or that the Liens granted to Agent have been properly
or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of
care, disclosure or fidelity, or to continue exercising, any of
the rights, authorities and powers granted or available to Agent
in this SECTION 8.2(h) or in any of the Loan Documents, it being
understood and agreed that in respect of the property covered by
the Collateral Documents or any act, omission or event related
thereto, Agent may act in any manner it may deem appropriate, in
its discretion, given Agent's own interest in property covered by
the Collateral Documents as one of the Lenders and that Agent
shall have no duty or liability whatsoever to any of the other
Lenders, PROVIDED that Agent shall exercise the same care which
it would in dealing with loans for its own account.
(i) AGENCY FOR PERFECTION.
(i) GENERAL PROVISIONS. Agent and each Lender hereby appoint
each other Lender as agent for the purpose of perfecting Agent's
security interest in assets which, in accordance with the Code or
any other applicable law, in any applicable jurisdiction, can be
perfected by possession or control. Should any Lender (other than
Agent) obtain possession or control of any such assets, such
Lender shall notify Agent thereof, and, promptly upon Agent's
request therefor, shall deliver such assets to Agent or in
accordance with Agent's instructions or transfer control to Agent
in accordance with Agent's instructions. Each Lender agrees that
it will not have any right individually to enforce or seek to
enforce any Collateral Document or to realize upon any collateral
security for the Loans unless instructed to do so by Agent in
writing, it being understood and agreed that such rights and
remedies may be exercised only by Agent.
(ii) QUEBEC SPECIAL PROVISIONS. Without limiting any of the
foregoing provisions in favor of Agent, for the purposes of
holding any security granted by any Credit Party pursuant to the
laws of the Province of Quebec, including any deed of hypothec,
debenture, bond or other title of indebtedness and debenture or
bond pledge agreements, Agent is hereby appointed to act as the
Person holding an irrevocable power of attorney (fonde de
pouvoir) pursuant to article 2692 of the CIVIL CODE OF QUEBEC to
act on behalf of each present and future Lender. By executing an
Assignment Agreement, each future Lender shall be deemed to
ratify the power of attorney (fonde de pouvoir) granted herein.
Agent agrees to act in such capacity. Each party hereto agrees
that, notwithstanding Section 32 of AN ACT RESPECTING THE SPECIAL
POWERS OF LEGAL PERSONS (QUEBEC), Agent may, as the Person
holding the power of attorney of the Lenders, acquire and or be
the pledgee of any debentures, bonds or other titles of
indebtedness secured by any hypothec
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granted by any Credit Party to the Agent pursuant to the laws of the
Province of Quebec.
(iii) ITALIAN SPECIAL PROVISIONS. Each of the Lenders hereby
appoints Agent to be its mandatario con rappresentanza (COMMON
REPRESENTATIVE) for the purpose of executing any Collateral
Document which is expressed to be governed by Italian law in the
name and on behalf of the Lenders, with the power to determine
and agree any term and condition of such Collateral Document,
execute any other Loan Document, give or receive any notice and
take any other action in relation to the creation, perfection,
maintenance, enforcement and release of the security created
thereunder in the name and on behalf of the Lenders and
undertakes to ratify and approve any such action taken in the
name and on behalf of the Lenders by the Agent acting in such
capacity.
(iv) GERMAN SPECIAL PROVISIONS. Regarding all Collateral
subject to Collateral Documents governed by German law, Agent
shall (a) hold and administer such Collateral which is security
assigned (SICHERUNGSEIGENTUM/SICHERUNGSABTRETUNG) or otherwise
transferred under a non-accessory security right (NICHT
AKZESSORISCHE SICHERHEIT) to it as trustee (TREUHANDER) for the
benefit of the Lenders and (b) administer such Collateral which
is pledged (VERPFANDUNG) or otherwise transferred to Agent or any
Lender under an accessory security right (AKZESSORISCHE
SICHERHEIT). Each Lender hereby authorizes Agent to (x) accept as
its representative (STELLVERTRETER) any pledge or other creation
of any accessory right under German law made to such Lender in
relation to such Collateral and (y) agree to and execute on
behalf of the Lenders any amendments to any document relating to
and to effect or confirm any release in relation to any of the
accessory German securities made in writing or in notarial form.
Each of the Credit Parties and the Lenders hereby relieves the
Agent from the restrictions of Section 181 of the German Civil
Code (BGB) to allow it to perform its duties and obligations as
Agent hereunder. Each Lender hereby ratifies and approves all
acts previously done by the Agent on such Lender's behalf. Each
Lender hereby expressly consents to the declarations of Agent
made on behalf and in the name of such Lender as future pledgee
in the agreements relating to Collateral subject to Collateral
Documents governed by German law that is an accessory security
right. Waiving Section 418 of the German Civil Code (BURGERLICHES
GESETZBUCH), the parties to this Agreement agree that any
security or guarantee created under any such Collateral Document
shall not be affected by any transfer or assumption of the
Obligations to, or by, any third party.
(j) NOTICE OF DEFAULT. Agent nor any L/C Issuer shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
except with respect to defaults in the payment of principal, interest and Fees
required to be paid to Agent for the account of Lenders, unless Agent or such
L/C Issuer shall have received written notice from
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a Lender or Borrower Representative referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". Agent will use reasonable efforts to notify each Lender of its receipt
of any such notice, unless such notice is with respect to defaults in the
payment of principal, interest and fees, in which case Agent will notify each
Lender of its receipt of such notice. Agent shall take such action with respect
to such Default or Event of Default as may be requested by Requisite Lenders in
accordance with SECTION 6. Unless and until Agent has received any such request,
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 or in the best interests of Lenders.
(k) LENDER ACTIONS AGAINST COLLATERAL. Each Lender agrees that it
will not take any action, nor institute any actions or proceedings, with respect
to the Loans, against any Borrower or any Credit Party hereunder or under the
other Loan Documents or against any of the Real Estate encumbered by Mortgages
without the consent of the Required Lenders. With respect to any action by Agent
to enforce the rights and remedies of Agent and the Lenders under this Agreement
and the other Loan Documents, each Lender hereby consents to the jurisdiction of
the court in which such action is maintained, and agrees to deliver its Notes to
Agent to the extent necessary to enforce the rights and remedies of Agent for
the benefit of the Lenders under the Mortgages in accordance with the provisions
hereof.
Section 8.3 SET OFF AND SHARING OF PAYMENTS.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, during the continuance of
any Event of Default to the extent permitted by SECTION 6.5, each Lender has the
right to at any time or from time to time, with reasonably prompt subsequent
notice to Borrower Representative (any prior or contemporaneous notice being
hereby expressly waived) to set off and to appropriate and to apply, but solely
to the extent of the amount of Obligations then due by acceleration or
otherwise, any and all (A) balances held by such Lender at any of its offices
for the account of any Borrower or any of its Subsidiaries (regardless of
whether such balances are then due to any Borrower or its Subsidiaries), and (B)
other property at any time held or owing by such Lender to or for the credit or
for the account of any Borrower or any of its Subsidiaries, against and on
account of any of the Obligations; except that no Lender shall exercise any such
right without the prior written consent of Agent. Any Lender exercising a right
to set off shall purchase for cash (and the other Lenders shall sell) interests
in each of such other Lender's Pro Rata Share of the Obligations as would be
necessary to cause all Lenders to share the amount so set off with each other
Lender in accordance with their respective Pro Rata Shares. Borrowers agree, to
the fullest extent permitted by law, that any Lender may exercise its right to
set off with respect to amounts in excess of its Pro Rata Share of the
Obligations and upon doing so shall deliver such amount so set off to the Agent
for the benefit of all Lenders in accordance with their Pro Rata Shares.
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Section 8.4 DISBURSEMENT OF FUNDS.
Agent may, on behalf of Lenders, disburse funds (in the applicable
currency) to Borrowers for Loans requested. Each Lender shall reimburse Agent on
demand for all funds disbursed on its behalf by Agent, or if Agent so requests,
each Lender will remit to Agent its Pro Rata Share of any Loan (in the
applicable currency) before Agent disburses same to Borrowers. If Agent elects
to require that each Lender make funds available to Agent prior to a
disbursement by Agent to Borrowers, Agent shall advise each Lender by telephone
or fax of the amount of such Lender's Pro Rata Share of the Loan requested by
Borrower Representative no later than 1:00 p.m. (New York time) on the Funding
Date (or three (3) Business Days prior to the Funding Date with respect to
European Loans) applicable thereto, and each such Lender shall pay Agent such
Lender's Pro Rata Share of such requested Loan, in same day funds (in the
applicable currency), by wire transfer to Agent's account on such Funding Date.
If any Lender fails to pay the amount of its Pro Rata Share within one (1)
Business Day after Agent's demand, Agent shall promptly notify Borrower
Representative, and Borrowers shall immediately repay such amount to Agent. Any
repayment required pursuant to this SECTION 8.4 shall be without premium or
penalty. Nothing in this SECTION 8.4 or elsewhere in this Agreement or the other
Loan Documents, including the provisions of SECTION 8.5, shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender
from its obligation to fulfill its commitments hereunder or to prejudice any
rights that Agent or Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
Section 8.5 DISBURSEMENTS OF ADVANCES; PAYMENT.
(a) ADVANCES; PAYMENTS.
(i) Agent shall notify Revolving Lenders, promptly after
receipt of a Notice of Revolving Credit Advance and in any event
prior to 1:00 p.m. (New York time) on the date such Notice of a
Revolving Credit Advance is received, by fax, telephone or other
similar form of transmission. Each Revolving Lender shall make
the amount of such Lender's Pro Rata Share of such Revolving
Credit Advance available to Agent in same day funds (in the
applicable currency) by wire transfer to Agent's account as set
forth in SECTION 1.1(i) and (j) not later than 3:00 p.m. (New
York time) on the requested Funding Date in the case of an Index
Rate Loans and not later than 11:00 a.m. (New York time) on the
requested Funding Date in the case of a LIBOR Loan. After receipt
of such wire transfers (or, in the Agent's sole discretion,
before receipt of such wire transfers), subject to the terms
hereof, Agent shall make the requested Revolving Credit Advance
(in the applicable currency) to Borrowers as designated by
Borrower Representative in the Notice of Revolving Credit
Advance. All payments by each Revolving Lender shall be made
without setoff, counterclaim or deduction of any kind.
(ii) At least once each calendar week or more frequently at
Agent's election (each, a "SETTLEMENT DATE"), Agent shall advise
each Lender by
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telephone or fax of the amount of such Lender's Pro Rata Share of
principal, interest and Fees paid for the benefit of Lenders with
respect to each applicable Loan. Provided that each Lender has
funded all payments and Advances required to be made by it and
purchased all participations required to be purchased by it under
this Agreement and the other Loan Documents as of such Settlement
Date, Agent shall pay (in the applicable currency) to each Lender
such Lender's Pro Rata Share of principal, interest and Fees paid
by Borrowers since the previous Settlement Date for the benefit
of such Lender on the Loans held by it. Such payments shall be
made by wire transfer to such Lender's account (as specified by
such Lender in ANNEX E or the applicable Assignment Agreement)
not later than 2:00 p.m. (New York time) on the next Business Day
following each Settlement Date. To the extent that any Lender (a
"NON-FUNDING LENDER") has failed to fund all such payments and
Advances or failed to fund the purchase of all such
participations, Agent shall be entitled to set off the funding
shortfall against that Non-Funding Lender's Pro Rata Share of all
payments received from Borrowers.
(b) AVAILABILITY OF LENDER'S PRO RATA SHARE. Agent may assume that
each Revolving Lender will make its Pro Rata Share of each Revolving Credit
Advance available to Agent on each Funding Date. If such Pro Rata Share is not,
in fact, paid to Agent by such Revolving Lender when due, Agent will be entitled
to recover such amount on demand from such Revolving Lender without setoff,
counterclaim or deduction of any kind. If any Revolving Lender fails to pay the
amount of its Pro Rata Share forthwith upon Agent's demand, Agent shall promptly
notify Borrower Representative and Borrowers shall immediately repay such amount
to Agent. Nothing in this SECTION 8.5(b) or elsewhere in this Agreement or the
other Loan Documents shall be deemed to require Agent to advance funds on behalf
of any Revolving Lender or to relieve any Revolving Lender from its obligation
to fulfill its Commitments hereunder or to prejudice any rights that Borrowers
may have against any Revolving Lender as a result of any default by such
Revolving Lender hereunder. To the extent that Agent advances funds to Borrowers
on behalf of any Revolving Lender and is not reimbursed therefor on the same
Business Day as such Advance is made, Agent shall be entitled to retain for its
account all interest accrued on such Advance until reimbursed by the applicable
Revolving Lender.
(c) RETURN OF PAYMENTS.
(i) If Agent pays an amount to a Lender under this Agreement
in the belief or expectation that a related payment has been or
will be received by Agent from Borrowers and such related payment
is not received by Agent, then Agent will be entitled to recover
such amount from such Lender on demand without setoff,
counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount
received by Agent under this Agreement must be returned to any
Borrower or paid to any other Person pursuant to any insolvency
law or otherwise, then, notwithstanding any other term or
condition of this Agreement or any other
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Loan Document, Agent will not be required to distribute any
portion thereof to any Lender. In addition, each Lender will
repay to Agent on demand any portion of such amount that Agent
has distributed to such Lender, together with interest at such
rate, if any, as Agent is required to pay to any Borrower or such
other Person, without setoff, counterclaim or deduction of any
kind.
(d) NON-FUNDING LENDERS. The failure of any Non-Funding Lender to
make any Revolving Credit Advance or any payment required by it hereunder on the
date specified therefor shall not relieve any other Lender (each such other
Revolving Lender, an "OTHER LENDER") of its obligations to make such Advance or
payment on such date, but neither any Other Lender nor Agent shall be
responsible for the failure of any Non-Funding Lender to make an Advance or make
any other payment required hereunder. Notwithstanding anything set forth herein
to the contrary, until such failure of any Non-Funding Lender is cured by such
Non-Funding Lender, such Non-Funding Lender shall not (i) have any voting or
consent rights under or with respect to any Loan Document or constitute a
"Lender" or a "Revolving Lender" (or be included in the calculation of
"Requisite Lenders", "Requisite Revolving Lenders" or "Supermajority Revolving
Lenders" hereunder) for any voting or consent rights under or with respect to
any Loan Document or (ii) be entitled to any Fees pertaining to any portion of
such Revolving Credit Advance or payment that it has failed to make.
(e) DISSEMINATION OF INFORMATION. Agent shall use reasonable
efforts to provide Lenders with any notice of Default or Event of Default
received by Agent from, or delivered by Agent to, any Credit Party, with notice
of any Event of Default of which Agent has actually become aware and with notice
of any action taken by Agent following any Event of Default; provided, that
Agent shall not be liable to any Lender for any failure to do so.
(f) ACTIONS IN CONCERT. Anything in this Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no Lender
shall take any action to protect or enforce its rights arising out of this
Agreement or the Notes (including exercising any rights of setoff) without first
obtaining the prior written consent of Agent and Requisite Lenders, it being the
intent of Lenders that any such action to protect or enforce rights under this
Agreement and the Notes shall be taken in concert and at the direction or with
the consent of Agent or Requisite Lenders. Agent is authorized to issue all
notices to be issued by or on behalf of the Lenders with respect to any
Subordinated Debt.
Section 8.6 PARALLEL EUROPEAN DEBT
(a) DUTCH PARALLEL DEBT. Without prejudice to the other provisions
of this Agreement and the other Loan Documents, and for the purpose of ensuring
and preserving the validity and continuity of the security rights granted and to
be granted under or pursuant to the Collateral Documents governed by the laws of
The Netherlands (the "DUTCH LAW COLLATERAL DOCUMENTS"), each of the Lenders and
the other parties hereto hereby acknowledges and consents to the Non-US Credit
Parties that are party to the Dutch Law Collateral Documents undertaking in the
Dutch Law Collateral Documents to pay to GE Capital as pledgee thereunder, in
its own capacity and not as agent, representative or trustee,
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amounts which are equal to and in the currency of the Principal Obligations (as
defined in the Dutch Law Collateral Documents) from time to time due in
accordance with the terms and conditions of the Principal Obligations (the
"RELEVANT LIABILITIES") (such payment undertaking and the obligations and
liabilities resulting therefrom: defined as the "Parallel Debt" in the Dutch Law
Collateral Documents).
The Lenders and the other parties hereto hereby agree that the
Parallel Debt is a claim of GE Capital which is separate and independent from,
and without prejudice to, the claims of the Lenders in respect of the Relevant
Liabilities, and is not a claim which is held jointly with the Lenders provided,
that to the extent any amount is paid to and received by GE Capital in payment
of the relevant Parallel Debt, the total amount due and payable in respect of
the corresponding Relevant Liabilities shall be decreased as if such amount were
received by the Lenders or any of them in payment of the corresponding Relevant
Liabilities. GE Capital, acting in its own capacity, hereby agrees to apply all
proceeds that it receives in connection with any enforcement action taken under
or pursuant to the Dutch Law Collateral Documents or otherwise in satisfaction
in whole or in part of the relevant Parallel Debt in accordance with the
provisions of the Dutch Law Collateral Documents.
(b) OTHER NON-US PARALLEL DEBT. For the purpose of ensuring and
preserving the validity and continuity of the Collateral Documents governed by
German law or the laws of France (the "EUROPEAN SECURITY DOCUMENTS") and solely
for such purpose and subject as provided below, European Borrower and each and
every other Non-US Credit Party hereby irrevocably and unconditionally
undertakes to pay the Agent amounts equal to any amounts owing by European
Borrower or such other Non-US Credit Party to the Agent and Lenders with respect
to the European Obligations as and when the same fall due for payment under the
applicable Loan Documents, so that the 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 Agent and Lenders.
The European Borrower, the other Non-US Credit Parties and the Agent
acknowledge that for this purpose such monetary obligations of the European
Borrower and/or such Non-US Credit Parties are several and are separate and
independent from, and without prejudice to, the identical obligations which the
European Borrower and such Non-US Credit Parties have to the Agent and Lenders
with respect to the relevant European Obligations, PROVIDED, that this shall
not, at the same time, result in European Borrower or any such Non-US Credit
Party incurring an aggregate monetary obligation to any Lender or the Agent
which is greater than the monetary obligations of European Borrower or such
Non-US Credit Party to Agent or any such Lender with respect to the European
Obligations.
To this end and without prejudice to the foregoing, it is agreed that
(i) the amounts due and payable by European Borrower and the other Non-US Credit
Parties under this SECTION 8.6(b) (the "NON-US PARALLEL DEBT") shall be
decreased to the extent that European Borrower or such Non-US Credit Party has
paid any amounts to the Agent and Lenders or any of them with respect to the
European Obligations and European Obligations shall be decreased to the extent
that European Borrower or such Non-US Credit Party has paid any amounts to Agent
with respect to the Non-US Parallel Debt and (ii) the Non-US
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Parallel Debt shall not exceed the aggregate of the corresponding obligations
which European Borrower and the other Non-US Credit Parties have to Agent and
Lenders with respect to the European Obligations.
Nothing in this SECTION 8.6(b) shall in any way negate, affect or
increase the obligations of European Borrower or any other Non-US Credit Party
to Agent or any Lender with respect to the European Obligations. For the purpose
of this SECTION 8.6(b), the 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 Agent to secure the Non-US Parallel Debt is granted to the Agent
in its capacity as creditor of the Non-US Parallel Debt.
(c) PARALLEL US DEBT. For the purpose of ensuring and preserving
the validity and continuity of the European Security Documents and solely for
such purpose and subject as provided below, each and every US Credit Party
hereby irrevocably and unconditionally undertakes to pay the Agent amounts equal
to any amounts owing by such US Credit Party to the Agent and Lenders in respect
of the Obligations as and when the same fall due for payment under the
applicable Loan Documents, so that the 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 Agent and Lenders.
The US Credit Parties and the Agent acknowledge that for this purpose
such monetary obligations of the US Credit Parties are several and are separate
and independent from, and without prejudice to, the identical obligations which
the US Credit Parties have to the Agent and Lenders in respect of the
Obligations, PROVIDED, that this shall not, at the same time, result in any US
Credit Party incurring an aggregate monetary obligation to any Lender or Agent
which is greater than the monetary obligations to Agent or any Lender under the
Loan Documents.
To this end and without prejudice to the foregoing, it is agreed that
(i) the amounts due and payable by any US Credit Party under this SECTION 8.6(c)
(the "PARALLEL US DEBT") shall be decreased to the extent that such US Credit
Party has paid any amounts to the Agent and Lenders or any of them with respect
to the Obligations and (ii) the Parallel US Debt shall not exceed the aggregate
of the corresponding obligations which any US Credit Party has to the Agent and
Lenders with respect to the Obligations.
Nothing in this SECTION 8.6(c) shall in any way negate, affect or
increase the obligations of any US Credit Party to Agent or any Lender with
respect to the Obligations. For the purpose of this SECTION 8.6(c) the Agent
acts in its own name and on behalf of itself and not as agent of representative
of any other party hereto and any security granted to the Agent to secure the
Parallel US Debt is granted to the Agent in its capacity as creditor of the
Parallel US Debt.
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SECTION 9
MISCELLANEOUS
Section 9.1 INDEMNITIES.
(a) GENERAL INDEMNITY. Borrowers agree, jointly and severally, to
indemnify, pay, and hold Agent, each Lender, each L/C Issuer and their
respective officers, directors, employees, agents, and attorneys (the
"INDEMNITEES") harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs and
expenses (including all reasonable fees and expenses of counsel to such
Indemnitees) of any kind or nature whatsoever (other than Taxes) that may be
imposed on, incurred by, or asserted against the Indemnitee as a result of such
Indemnitees being a party to this Agreement or the transactions consummated
pursuant to this Agreement or otherwise relating to any of the Related
Transactions; PROVIDED, that (i) Borrowers shall have no obligation to an
Indemnitee hereunder with respect to liabilities to the extent resulting from
the gross negligence or willful misconduct of that Indemnitee as determined by a
court of competent jurisdiction and (ii) the European Borrower's foregoing
indemnification obligations shall be limited to the extent they pertain to the
European Obligations. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, Borrowers agree to make the maximum contribution
to the payment and satisfaction thereof which is permissible under applicable
law (subject to the limitations pertaining to the gross negligence or willful
misconduct of an Indemnitee set forth in the proviso of the foregoing sentence).
(b) CURRENCY INDEMNITY. If, for the purposes of obtaining or
enforcing judgment in any court in any jurisdiction with respect to this
Agreement or any other Loan Document, it becomes necessary to convert into the
currency of such jurisdiction (the "JUDGMENT CURRENCY") any amount due under
this Agreement or under any other Loan Document in any currency other than the
Judgment Currency (the "CURRENCY DUE") (or for the purposes of the last
paragraph of SECTION 1.4), then conversion shall be made at the Exchange Rate on
the Business Day before the day on which judgment is given (or for the purposes
of the last paragraph of SECTION 1.4, on the Business Day on which the payment
was received by Agent). In the event that there is a change in the Exchange Rate
between the Business Day before the day on which the judgment is given and the
date of receipt by Agent of the amount due, Borrowers shall, on the date of
receipt by Agent, pay such additional amounts, if any, or be entitled to receive
reimbursement of such amount, if any as may be necessary to ensure that the
amount received by Agent on such date is the amount in the Judgment Currency
which when converted at the Exchange Rate on the date of receipt by Agent in
accordance with normal banking procedures in the relevant jurisdiction is the
amount then due under this Agreement or such other Loan Document in the Currency
Due. If the amount of the Currency Due (including any Currency Due for purposes
of SECTION 1.4) which Agent is so able to purchase is less than the amount of
the Currency Due (including any Currency Due for purposes of SECTION 1.4)
originally due to it, Borrowers shall jointly and severally indemnify and save
Agent and Lenders harmless from and against loss or damage arising as a result
of such deficiency. This indemnity shall (i) constitute an obligation separate
and independent from the other obligations contained in this Agreement and the
other Loan Documents, (ii) give rise to a separate and independent cause of
action,
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(iii) apply irrespective of any indulgence granted by Agent or any Lender from
time to time, (iv) survive the payment in full of the Obligations and the
termination of this Agreement, and (v) continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due under this Agreement or any other Loan Document or under any judgment
or order.
Section 9.2 AMENDMENTS AND WAIVERS.
(a) Except for actions expressly permitted to be taken by Agent,
no amendment, modification, termination or waiver of any provision of this
Agreement or any other Loan Document, or any consent to any departure by any
Credit Party therefrom, shall in any event be effective unless the same shall be
in writing and signed by Borrowers, and by Requisite Lenders, Requisite
Revolving Lenders, Supermajority Revolving Lenders or all affected Lenders, as
applicable. Except as set forth in clauses (b) and (c) below, all such
amendments, modifications, terminations or waivers requiring the consent of any
Lenders shall require the written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or
consent with respect to any provision of this Agreement that increases the
percentage advance rates set forth in the definition of the US Borrowing Base or
in the definition of European Borrowing Base, or that makes less restrictive the
nondiscretionary criteria for exclusion from Eligible Accounts (US Loans) and
Eligible Inventory (US Loans) set forth in EXHIBIT 4.8(d)(i) or from Eligible
Accounts (European Loans) and Eligible Inventory (European Loans) set forth in
EXHIBIT 4.8(d)(ii), shall be effective unless the same shall be in writing and
signed by Agent, Supermajority Revolving Lenders and Borrowers. No amendment,
modification, termination or waiver of or consent with respect to any provision
of this Agreement that waives compliance with the conditions precedent set forth
in SECTION 7.2 to the making of any Loan or the incurrence of any Letter of
Credit Obligations or amends SECTION 1.1(c)(ii) or 1.1(d)(ii) shall be effective
unless the same shall be in writing and signed by Agent, Requisite Revolving
Lenders and Borrowers. Notwithstanding anything contained in this Agreement to
the contrary, no waiver or consent with respect to any Default or any Event of
Default shall be effective for purposes of the conditions precedent to the
making of Loans or the incurrence of Letter of Credit Obligations set forth in
SECTION 7.2 unless the same shall be in writing and signed by Agent, Requisite
Revolving Lenders and Borrowers.
(c) No amendment, modification, termination or waiver shall,
unless in writing and signed by Agent and each Lender directly affected thereby:
(i) increase the principal amount of any Lender's Commitment (which action shall
be deemed only to affect those Lenders whose Commitments are increased and may
be approved by Requisite Lenders, including those Lenders whose Commitments are
increased); (ii) reduce the principal of, rate of interest on or Fees payable,
or any indemnities or other amounts payable, with respect to any Loan or Letter
of Credit Obligations of any affected Lender; (iii) extend any scheduled payment
date or final maturity date of the principal amount of any Loan of any affected
Lender; (iv) waive, forgive, defer, extend or postpone any payment of interest
or Fees or other amounts as to any affected Lender (which action shall be deemed
only to affect those Lenders to whom such payments are made); (v) release any
Guaranty or, except as
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otherwise permitted in SECTION 3.7, release Collateral with a book value
exceeding 10% of the book value of all assets in the aggregate in any one (1)
year (which action shall be deemed to directly affect all Lenders); (vi) except
pursuant to clause (i) above, change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans that shall be required for
Lenders or any of them to take any action hereunder; and (vii) amend or waive
this SECTION 9.2 or the definitions of the terms "Requisite Lenders", "Requisite
Revolving Lenders" or "Supermajority Revolving Lenders" insofar as such
definitions affect the substance of this SECTION 9.2. Solely for the purposes of
this SECTION 9.2(c) in determining whether any Lender is an affected Lender, any
Lender that has (i) a US Revolving Loan Commitment, shall also be deemed to have
a European Revolving Loan Commitment, and (ii) a European Revolving Loan
Commitment, shall also be deemed to have a US Revolving Loan Commitment.
Furthermore, no amendment, modification, termination or waiver affecting the
rights or duties of Agent or L/C Issuers under this Agreement or any other Loan
Document shall be effective unless in writing and signed by Agent or L/C
Issuers, as the case may be, in addition to Lenders required hereinabove to take
such action. Each amendment, modification, termination or waiver shall be
effective only in the specific instance and for the specific purpose for which
it was given. No amendment, modification, termination or waiver shall be
required for Agent to take additional Collateral pursuant to any Loan Document.
No amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the holder of that Note.
No notice to or demand on any Credit Party in any case shall entitle such Credit
Party or any other Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this SECTION 9.2 shall be binding upon
each holder of the Notes at the time outstanding and each future holder of the
Notes.
Section 9.3 NOTICES.
Any notice or other communication required shall be in writing
addressed to the respective party as set forth below and may be personally
served, telecopied, sent by overnight courier service or U.S. mail and shall be
deemed to have been given: (a) if delivered in person, when delivered; (b) if
delivered by fax, on the date of transmission if transmitted on a Business Day
before 4:00 p.m. New York Time; (c) if delivered by overnight courier, one (1)
Business Day after delivery to the courier properly addressed; or (d) if
delivered by U.S. mail, four (4) Business Days after deposit with postage
prepaid and properly addressed.
Notices shall be addressed as follows:
If to Borrower Representative or any c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, LP
Credit Party: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Agent or GE Capital: GENERAL ELECTRIC CAPITAL
CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: Advanced Accessories Account Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: GENERAL ELECTRIC CAPITAL CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTN: Corporate Financial Services - Global Sponsor
Finance - General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
GENERAL ELECTRIC CAPITAL
CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: Corporate Counsel
Commercial Finance - Merchant Banking
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender: To the address set forth on the signature page
hereto or in the applicable Assignment Agreement
Section 9.4 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Agent or any Lender to exercise,
nor any partial exercise of, any power, right or privilege hereunder or under
any other Loan Documents shall impair such power, right, or privilege or be
construed to be a waiver of any Default or Event of Default. All rights and
remedies existing hereunder or under any other Loan Document are cumulative to
and not exclusive of any rights or remedies otherwise available.
Section 9.5 MARSHALING; PAYMENTS SET ASIDE.
Neither Agent nor any Lender shall be under any obligation to marshal
any assets in payment of any or all of the Obligations. To the extent that
Borrowers make payment(s) or Agent enforces its Liens or Agent or any Lender
exercises its right of set-off, and such payment(s) or the proceeds of such
enforcement or set-off is subsequently invalidated, declared to be fraudulent or
preferential, set aside, or required to be repaid by
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anyone, then to the extent of such recovery, the Obligations or part thereof
originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or set-off had not occurred.
Section 9.6 SEVERABILITY.
The invalidity, illegality, or unenforceability in any jurisdiction of
any provision under the Loan Documents shall not affect or impair the remaining
provisions in the Loan Documents.
Section 9.7 LENDERS' OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF
LENDERS' RIGHTS.
The obligation of each Lender hereunder is several and not joint and
no Lender shall be responsible for the obligation or commitment of any other
Lender hereunder. In the event that any Lender at any time should fail to make a
Loan as herein provided, the Lenders, or any of them, at their sole option, may
make the Loan that was to have been made by the Lender so failing to make such
Loan. Nothing contained in any Loan Document and no action taken by Agent or any
Lender pursuant hereto or thereto shall be deemed to constitute Lenders to be a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt.
Section 9.8 HEADINGS.
Section and subsection headings are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purposes or be given substantive effect.
Section 9.9 APPLICABLE LAW.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS WHICH DOES NOT
EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE GOVERNED BY AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 9.10 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns except that Borrowers
may not assign their rights or obligations hereunder without the written consent
of all Lenders.
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Section 9.11 NO FIDUCIARY RELATIONSHIP; LIMITED LIABILITY.
No provision in the Loan Documents and no course of dealing between
the parties shall be deemed to create any fiduciary duty owing to Borrowers by
Agent or any Lender. Borrowers agree that neither Agent nor any Lender shall
have liability to Borrowers (whether sounding in tort, contract or otherwise)
for losses suffered by Borrowers in connection with, arising out of, or in any
way related to the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless and to the extent that it is determined that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought as determined by a final non-appealable order by a court of
competent jurisdiction. Neither Agent nor any Lender shall have any liability
with respect to, and Borrowers hereby waive, release and agree not to ▇▇▇ for,
any special, indirect or consequential damages suffered by Borrowers in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
Section 9.12 CONSTRUCTION.
Agent, each Lender, Borrowers and each other Credit Party acknowledge
that each of them has had the benefit of legal counsel of its own choice and has
been afforded an opportunity to review the Loan Documents with its legal counsel
and that the Loan Documents shall be construed as if jointly drafted by Agent,
each Lender, Borrowers and each other Credit Party.
Section 9.13 CONFIDENTIALITY.
Agent and each Lender agree to exercise their best efforts to keep
confidential any non-public information delivered pursuant to the Loan Documents
by or on behalf of Borrowers and not to disclose such information to Persons
other than to potential assignees or participants or to Persons employed by or
engaged by Agent a Lender or a Lender's assignees or participants including
attorneys, auditors, professional consultants, rating agencies, insurance
industry associations and portfolio management services. The confidentiality
provisions contained in this SECTION 9.13 shall not apply to disclosures (i)
required to be made by Agent or any Lender to any regulatory or governmental
agency or pursuant to legal process or (ii) consisting of general portfolio
information that does not identify Borrowers. The obligations of Agent and
Lenders under this SECTION 9.13 shall supersede and replace the obligations of
Agent and Lenders under any confidentiality agreement in respect of this
financing executed and delivered by Agent or any Lender prior to the date
hereof.
Section 9.14 CONSENT TO JURISDICTION.
BORROWERS AND THE OTHER CREDIT PARTIES HEREBY CONSENT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK COUNTY, STATE
OF NEW YORK AND IRREVOCABLY AGREE THAT, SUBJECT TO AGENT'S ELECTION, ALL ACTIONS
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OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWERS AND THE OTHER CREDIT
PARTIES EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS
AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. BORROWERS AND THE OTHER CREDIT
PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE UPON BORROWERS AND THE OTHER CREDIT PARTIES
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO BORROWER
REPRESENTATIVE, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE
SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
Section 9.15 WAIVER OF JURY TRIAL.
BORROWERS, THE OTHER CREDIT PARTIES, AGENT AND EACH LENDER HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
BORROWERS, THE OTHER CREDIT PARTIES, AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO AGENT AND EACH LENDER TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT AGENT AND EACH LENDER HAS RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT AGENT AND
EACH LENDER WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE
DEALINGS. BORROWERS, THE OTHER CREDIT PARTIES, AGENT AND EACH LENDER WARRANT AND
REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS.
Section 9.16 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS.
All agreements, representations and warranties made herein shall
survive the execution and delivery of this Agreement, the making of the Loans,
issuances of Letters of Credit and the execution and delivery of the Notes.
Notwithstanding anything in this Agreement or implied by law to the contrary,
the agreements of Borrowers set forth in SECTIONS 1.3(e), 1.8, 1.9 and 9.1 shall
survive the repayment of the Obligations and the termination of this Agreement.
Section 9.17 ENTIRE AGREEMENT.
This Agreement, the Notes and the other Loan Documents embody the
entire agreement among the parties hereto and supersede all prior commitments,
agreements, representations, and understandings, whether oral or written,
relating to the subject matter hereof, and may not be contradicted or varied by
evidence of prior, contemporaneous, or subsequent oral agreements or discussions
of the parties hereto. All Exhibits, Schedules and
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Annexes referred to herein are incorporated in this Agreement by reference and
constitute a part of this Agreement.
Section 9.18 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one in the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
Section 9.19 REPLACEMENT OF LENDERS.
(a) Within fifteen (15) days after receipt by Borrower
Representative of written notice and demand from any Lender for payment pursuant
to SECTION 1.8 or 1.9 or, as provided in this SECTION 9.19(c) (it being
understood that the below clauses (i) and (ii) under this SECTION 9.19(a) do not
apply to Proposed Changes covered by SECTION 9.19(c)), in the case of certain
refusals by any Lender to consent to certain proposed amendments, modifications,
terminations or waivers with respect to this Agreement that have been approved
by Requisite Lenders, Requisite Revolving Lenders, Supermajority Revolving
Lenders or all affected Lenders, as applicable (any such Lender demanding such
payment or refusing to so consent being referred to herein as an "AFFECTED
LENDER"), Borrowers may, at their option, with respect to any Lender that has so
made a demand pursuant to SECTION 1.8 or 1.9, notify Agent and such Affected
Lender of its intention to do one of the following:
(i) Borrowers may obtain, at Borrowers' expense, a
replacement Lender ("REPLACEMENT LENDER") for such Affected
Lender, which Replacement Lender shall be reasonably satisfactory
to Agent. In the event Borrowers obtain a Replacement Lender that
will purchase all outstanding Obligations owed to such Affected
Lender and assume its Commitments hereunder and all of its
obligations and rights under the Lender Risk Allocation Agreement
within ninety (90) days following notice of Borrowers' intention
to do so, the Affected Lender shall sell and assign all of its
rights and delegate all of its obligations under this Agreement
and the Lender Risk Allocation Agreement to such Replacement
Lender in accordance with the provisions of SECTION 8.1, PROVIDED
that Borrowers have reimbursed such Affected Lender for any
administrative fee payable pursuant to SECTION 8.1 and, in any
case where such replacement occurs as the result of a demand for
payment pursuant to SECTION 1.8 or 1.9, paid all amounts required
to be paid to such Affected Lender pursuant to SECTION 1.8 or 1.9
through the date of such sale and assignment; or
(ii) Borrowers may, with Agent's consent, prepay in full all
outstanding Obligations owed to such Affected Lender and
terminate such Affected Lender's Pro Rata Share of the Revolving
Loan Commitment and Pro
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Rata Share of the Term Loan Commitment (so long as the
obligations of such Affected Lender under the Lender Risk
Allocation Agreement are addressed in a manner acceptable to
Agent), in which case the Revolving Loan Commitment and Term Loan
Commitment will be reduced by the amount of such Pro Rata Share.
Borrowers shall, within ninety (90) days following notice of
their intention to do so, prepay in full all outstanding
Obligations owed to such Affected Lender (including, in any case
where such prepayment occurs as the result of a demand for
payment for increased costs, such Affected Lender's increased
costs for which it is entitled to reimbursement under this
Agreement through the date of such prepayment), and terminate
such Affected Lender's obligations under the Revolving Loan
Commitment and Term Loan Commitment.
(b) In the case of a Non-Funding Lender pursuant to SECTION
8.5(a), at (i) Borrower Representative's request a Person designated by Borrower
Representative shall have the right with Agent's consent (which consent shall
not be unreasonably withheld or delayed with respect to a Qualified Assignee;
provided that Agent may withhold such consent if the Non-Funding Lender's
obligations under the Lender Risk Allocation Agreement are not assumed by a
Person acceptable to Agent and in a manner acceptable to Agent) or (ii) Agent
shall have the right in Agent's sole discretion (but shall have no obligation),
in each case with respect to clauses (i) and (ii) above, to purchase from any
Non-Funding Lender and each Non-Funding Lender agrees that it shall sell and
assign to such Person or Agent, as applicable, all of the Loans and Commitments
(along with all rights and obligations of such Non-Funding Lender under the
Lender Risk Allocation Agreement) of that Non-Funding Lender for an amount equal
to the principal balance of all Loans held by such Non-Funding Lender and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement. In the event that Borrower Representative requests that a Non-Funding
Lender be so replaced, Agent will use commercially reasonable efforts to assist
the Borrowers in finding a Lender to so replace such Non-Funding Lender.
(c) If, in connection with any proposed amendment, modification,
waiver or termination pursuant to SECTION 9.2 (a "PROPOSED CHANGE"):
(i) requiring the consent of all affected Lenders, the
consent of Requisite Lenders is obtained, but the consent of
other Lenders whose consent is required is not obtained (any such
Lender whose consent is not obtained as described in this clause
(i) and in clause (ii) below being referred to as a
"NON-CONSENTING LENDER"), or
(ii) requiring the consent of Supermajority Revolving
Lenders, the consent of Requisite Revolving Lenders is obtained,
but the consent of Supermajority Revolving Lenders is not
obtained,
then, so long as Agent is not a Non-Consenting Lender, (x) at Borrower
Representative's request, a Person designated by Borrower Representative which
Person is reasonably
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acceptable to Agent shall have the right with Agent's consent (which consent
shall not be unreasonably withheld or delayed with respect to a Qualified
Assignee; provided that Agent may withhold such consent if the Non-Consenting
Lender's obligations under the Lender Risk Allocation Agreement are not assumed
by a Person acceptable to Agent and in a manner acceptable to Agent) and (y)
Agent shall have the right in Agent's sole discretion (but shall have no
obligation) to purchase from such Non-Consenting Lenders, and, with respect to
each of clause (i) and (ii) above, such Non-Consenting Lenders agree that they
shall, upon Agent's request, sell and assign to such Person or Agent, all of the
Loans and Commitments of such Non-Consenting Lenders for an amount equal to the
principal balance of all Loans held by the Non-Consenting Lenders and all
accrued interest and Fees with respect thereto through the date of sale, such
purchase and sale to be consummated pursuant to an executed Assignment
Agreement.
Section 9.20 DELIVERY OF TERMINATION STATEMENTS AND MORTGAGE
RELEASES.
Upon payment in full in cash and performance of all of the Obligations
(other than indemnification Obligations), termination of the Commitments and a
release of all claims against Agent and Lenders, and so long as no suits,
actions proceedings, or claims are pending or threatened against any Indemnitee
asserting any damages, losses or liabilities that are indemnified liabilities
hereunder, Agent shall deliver to Borrower Representative termination
statements, mortgage releases and other documents necessary or appropriate to
evidence the termination of the Liens securing payment of the Obligations.
If a Credit Party sells, transfers or otherwise disposes of any assets
or property in accordance with SECTION 3.7, the Agent will, upon such Credit
Party's request and at such Credit Party's expense, execute and deliver to such
Credit Party such documents, UCC and other releases with respect to such assets
or property as such Credit Party shall reasonably request to evidence the
release of its Lien on such assets or property, all without any representation,
warranty or recourse whatsoever.
Section 9.21 INTENTIONALLY RESERVED.
Section 9.22 JOINT AND SEVERAL OBLIGATIONS REGARDING CANADA.
Notwithstanding any other provision contained in this Agreement or any
other Loan Document, if a "secured creditor" (as that term is defined under the
Bankruptcy and Insolvency Act (Canada)) is determined by a court of competent
jurisdiction in Canada not to include a Person to whom obligations are owed on a
joint or joint and several basis, then the Obligations of each of the Credit
Parties organized under the laws of Canada or a province or territory thereof,
to the extent such Obligations are secured, only shall be several obligations
and not joint or joint and several.
Section 9.23 EUROPEAN/QUEBEC FINANCIAL ASSISTANCE LIMITATION.
Notwithstanding any other provision of this Agreement, any indemnities
by, or obligations of, the European Borrower or any other Non-US Credit Party
incorporated under
Annex A
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the laws of any European jurisdiction or Quebec shall only be legally binding on
the European Borrower or such other Non-US Credit Party insofar as the same will
not be in violation of the prohibition on financial assistance contained in the
Dutch Civil Code or any other applicable European or Quebec law and all
provisions hereof shall be construed accordingly.
Section 9.24 REAFFIRMATION OF ORIGINAL LOAN DOCUMENTS.
Each Credit Party hereby reaffirms its obligations under each Original
Loan Document, as amended, supplemental or otherwise modified by this Agreement
and by the other Loan Documents (as hereinafter defined) delivered on the date
hereof. Each Credit Party further agrees that each such Original Loan Document
shall remain in full force and effect following the execution and delivery of
this Agreement and that all references to the "Credit Agreement" in such
Original Loan Documents shall be deemed to refer to this Agreement. Without
limiting the foregoing, Sportrack Accessories Inc. recognizes and agrees that
the pledge of the debenture in the principal amount of Cdn.$75,000,000 dated
April 15, 2003 made payable to Agent (the "REAFFIRMED CANADIAN DEBENTURE"), as
such pledge is contemplated in the pledge of debenture agreement dated April 15,
2003 between Sportrack Accessories Inc., Agent and the Lenders, (the "REAFFIRMED
CANADIAN PLEDGE AGREEMENT"), guarantees and shall continue to guarantee the
Obligations of Sportrack Accessories Inc., and for more certainty and for all
intended purposes repledges the Reaffirmed Canadian Debenture in favor of Agent
and the Lenders in guarantee of such Obligations, such new pledge to be governed
by the terms of the Reaffirmed Canadian Pledge Agreement
SECTION 10
US BORROWER CROSS-GUARANTY
Section 10.1 US BORROWER CROSS-GUARANTY.
Each US Borrower (but not the European Borrower) hereby agrees that
such Borrower is jointly and severally liable for, and hereby absolutely and
unconditionally guarantees to Agent and Lenders and their respective successors
and assigns, the full and prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of, all Obligations owed or hereafter
owing to Agent and Lenders by each other Borrower. Each such US Borrower agrees
that its guaranty obligation hereunder is a continuing guaranty of payment and
performance and not of collection, that its obligations under this SECTION 10
shall not be discharged until payment and performance, in full, of the
Obligations has occurred, and that its obligations under this SECTION 10 shall
be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan Document or
any other agreement, document or instrument to which any Borrower is or may
become a party;
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(b) the absence of any action to enforce this Agreement (including
this SECTION 10) or any other Loan Document or the waiver or consent by Agent
and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect
its Lien against, any security for the Obligations or any action, or the absence
of any action, by Agent and Lenders in respect thereof (including the release of
any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each such US Borrower shall be regarded, and shall be in the same position, as
principal debtor with respect to the Obligations guaranteed hereunder.
Section 10.2 WAIVERS BY US BORROWERS.
Each US Borrower expressly waives all rights it may have now or in the
future under any statute, or at common law, or at law or in equity, or
otherwise, to compel Agent or Lenders to marshal assets or to proceed in respect
of the Obligations guaranteed hereunder against any other Credit Party, any
other party or against any security for the payment and performance of the
Obligations before proceeding against, or as a condition to proceeding against,
such Borrower. It is agreed among each Borrower, Agent and Lenders that the
foregoing waivers are of the essence of the transaction contemplated by this
Agreement and the other Loan Documents and that, but for the provisions of this
SECTION 10 and such waivers, Agent and Lenders would decline to enter into this
Agreement.
Section 10.3 BENEFIT OF GUARANTY.
Each Borrower agrees that the provisions of this SECTION 10 are for
the benefit of Agent and Lenders and their respective successors, transferees,
endorsees and assigns, and nothing herein contained shall impair, as between any
other Borrower and Agent or Lenders, the obligations of such other Borrower
under the Loan Documents.
Section 10.4 WAIVER OF SUBROGATION, ETC.
Notwithstanding anything to the contrary in this Agreement or in any
other Loan Document, and except as set forth in SECTION 10.7 and except with
respect to the intercompany loans permitted by SECTIONS 3.1(b) and (c), each US
Borrower hereby expressly and irrevocably waives any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor. Each Borrower acknowledges and agrees that this waiver
is intended to benefit Agent and Lenders and shall not limit or otherwise affect
such Borrower's liability hereunder or the enforceability of this SECTION 10,
and that Agent, Lenders and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
SECTION 10.4.
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Section 10.5 ELECTION OF REMEDIES.
If Agent or any Lender may, under applicable law, proceed to realize
its benefits under any of the Loan Documents giving Agent or such Lender a Lien
upon any Collateral, whether owned by any Borrower or by any other Person,
either by judicial foreclosure or by non-judicial sale or enforcement, Agent or
any Lender may, at its sole option, determine which of its remedies or rights it
may pursue without affecting any of its rights and remedies under this SECTION
10. If, in the exercise of any of its rights and remedies, Agent or any Lender
shall forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against any Borrower or any other Person, whether because of
any applicable laws pertaining to "election of remedies" or the like, each
Borrower hereby consents to such action by Agent or such Lender and waives any
claim based upon such action, even if such action by Agent or such Lender shall
result in a full or partial loss of any rights of subrogation that each Borrower
might otherwise have had but for such action by Agent or such Lender. Any
election of remedies that results in the denial or impairment of the right of
Agent or any Lender to seek a deficiency judgment against any Borrower shall not
impair any other Borrower's obligation to pay the full amount of the
Obligations. In the event Agent or any Lender shall bid at any foreclosure or
trustee's sale or at any private sale permitted by law or the Loan Documents,
Agent or such Lender may bid all or less than the amount of the Obligations and
the amount of such bid need not be paid by Agent or such Lender but shall be
credited against the Obligations. The amount of the successful bid at any such
sale, whether Agent, Lender or any other party is the successful bidder, shall
be conclusively deemed to be the fair market value of the Collateral and the
difference between such bid amount and the remaining balance of the Obligations
shall be conclusively deemed to be the amount of the Obligations guaranteed
under this SECTION 10, notwithstanding that any present or future law or court
decision or ruling may have the effect of reducing the amount of any deficiency
claim to which Agent or any Lender might otherwise be entitled but for such
bidding at any such sale.
Section 10.6 LIMITATION.
Notwithstanding any provision herein contained to the contrary, each
Borrower's liability under this SECTION 10 (which liability is in any event in
addition to amounts for which such Borrower is primarily liable under SECTION 1)
shall be limited to an amount not to exceed as of any date of determination the
greater of:
(a) the net amount of all Loans advanced to any other Borrower
under this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such Borrower; and
(b) the amount that could be claimed by Agent and Lenders from
such Borrower under this SECTION 10 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar (domestic or foreign) statute or common law after taking into
account, among other things, such
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Borrower's right of contribution and indemnification from each other Borrower
under SECTION 10.7.
Section 10.7 CONTRIBUTION WITH RESPECT TO GUARANTY OBLIGATIONS.
To the extent that any Borrower shall make a payment under this
SECTION 10 of all or any of the Obligations (other than Loans made to that
Borrower for which it is primarily liable) (a "GUARANTOR PAYMENT") that, taking
into account all other Guarantor Payments then previously or concurrently made
by any other Borrower, exceeds the amount that such Borrower would otherwise
have paid if each Borrower had paid the aggregate Obligations satisfied by such
Guarantor Payment in the same proportion that such Borrower's "Allocable Amount"
(as defined below) (as determined immediately prior to such Guarantor Payment)
bore to the aggregate Allocable Amounts of each of the Borrowers as determined
immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Obligations and termination of the
Commitments, such Borrower shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Borrower for the
amount of such excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment.
(a) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Borrower shall be equal to the maximum amount of the claim that could then be
recovered from such Borrower under this SECTION 10 without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(b) This SECTION 10.7 is intended only to define the relative
rights of Borrowers and nothing set forth in this SECTION 10.7 is intended to or
shall impair the obligations of Borrowers, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Agreement, including SECTION 10.1. Nothing contained in this
SECTION 10.7 shall limit the liability of any Borrower to pay the Loans made
directly or indirectly to that Borrower and accrued interest, Fees and expenses
with respect thereto for which such Borrower shall be primarily liable.
(c) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of the Borrower to which
such contribution and indemnification is owing.
(d) The rights of the indemnifying Borrowers against other Credit
Parties under this SECTION 10.7 shall be exercisable upon the full and
indefeasible payment of the Obligations and the termination of the Commitments.
Section 10.8 LIABILITY CUMULATIVE.
The liability of Borrowers under this SECTION 10 is in addition to and
shall be cumulative with all liabilities of each Borrower to Agent and Lenders
under this Agreement
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and the other Loan Documents to which such Borrower is a party or in respect of
any Obligations or obligation of the other Borrower, without any limitation as
to amount, unless the instrument or agreement evidencing or creating such other
liability specifically provides to the contrary.
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Witness the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BORROWERS:
SPORTRACK, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Secretary
---------------------------------
VALLEY INDUSTRIES, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
BRINK B.V.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
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OTHER CREDIT PARTIES:
CHAAS HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
CHAAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Secretary
---------------------------------
AAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Secretary
---------------------------------
CHAAS HOLDINGS B.V.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
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Title:
---------------------------------
SPORTRACK ACCESSORIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: President
---------------------------------
SPORTRACK GMBH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Director
---------------------------------
VALTEK, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Secretary
---------------------------------
CHAAS HOLDINGS III B.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title:
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AAS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Chairman
---------------------------------
NOMADIC SPORT INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: President
---------------------------------
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SPORTRACK S.R.O.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: (on the basis of a power of
attorney granted by sportrack
s.r.o. on 13.5.2003)
---------------------------------
SPORTRACK IBERICA AUTOMOTIVE, S.L.
UNIPERSONAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Director
---------------------------------
BRINK INTERNATIONAL B.V.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK SVERIGE AB
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK U.K. LIMITED
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
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BRINK NORDISK HOLDINGS APS
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK POLSKA SP Z.O.O.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK FRANCE S.A.R.L.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
ELLEBI S.R.L.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
NORDISK KOMPONENT HOLDINGS A/S
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
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SOCIETE DE FABRICATION
D'EQUIPEMENTS ET D'ACCESSOIRES SA
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK TREKHAKEN B.V.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
BRINK A/S
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
SCI L'ELMONTAISE
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
CHAAS HOLDINGS II B.V.
By: /s/ Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Jan ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title:
---------------------------------
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AGENT AND INTIAL LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Its Duly Authorized Signatory
Annex A
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