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CREDIT AND GUARANTY AGREEMENT
DATED AS OF MAY 23, 2003
AMONG
THERMADYNE HOLDINGS CORPORATION
AS BORROWER
AND
THE GUARANTORS REFERRED TO HEREIN
AND
THE NEW TERM LENDERS REFERRED TO HEREIN
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
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TABLE OF CONTENTS
PAGE
INTRODUCTORY STATEMENT..........................................................................................................1
ARTICLE 1 DEFINITIONS................................................................................................2
ARTICLE 2 THE NEW TERM LOANS........................................................................................32
Section 2.1. New Term Loans..................................................................................32
Section 2.2. Interest Rate Type of the New Term Loans........................................................33
Section 2.3. Repayment of New Term Loans; Evidence of Debt...................................................33
Section 2.4. Interest........................................................................................35
Section 2.5. Fees............................................................................................36
Section 2.6. Prepayments.....................................................................................36
Section 2.7. Default Interest; Alternate Rate of Interest....................................................38
Section 2.8. Continuation and Conversion of New Term Loans...................................................39
Section 2.9. Reimbursement of New Term Lenders...............................................................40
Section 2.10. Change in Circumstances.........................................................................40
Section 2.11. Change in Legality..............................................................................43
Section 2.12. Tax Matters.....................................................................................44
Section 2.13. Interest Adjustments............................................................................47
Section 2.14. Provisions Regarding Payments...................................................................47
Section 2.15. Cash Management System..........................................................................48
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF LOAN
PARTIES...................................................................................................48
Section 3.1. Existence and Power.............................................................................48
Section 3.2. Authority and No Violation......................................................................49
Section 3.3. Governmental Approval...........................................................................49
Section 3.4. Validity, Binding Agreements....................................................................50
Section 3.5. No Material Adverse Effect......................................................................50
Section 3.6. Financial Information...........................................................................50
Section 3.7. Subsidiaries....................................................................................51
Section 3.8. Patents, Trademarks, Copyrights and Other Rights................................................52
Section 3.9. Ownership of Property; Liens; Collateral Locations..............................................52
Section 3.10. Litigation; Judgments...........................................................................53
Section 3.11. Federal Reserve Regulations.....................................................................54
Section 3.12. Investment Company Act..........................................................................54
Section 3.13. Taxes...........................................................................................54
Section 3.14. ERISA...........................................................................................55
Section 3.15. Agreements......................................................................................56
Section 3.16. Disclosure......................................................................................56
Section 3.17. Environmental Matters...........................................................................56
Section 3.18. Compliance with Laws............................................................................58
Section 3.19. Delivery of Organizational and other Documents..................................................58
Section 3.20. Insurance.......................................................................................58
Section 3.21. Representations in Loan Documents True and Correct; No Default..................................58
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Section 3.22. Deposit Accounts and Securities Accounts........................................................58
Section 3.23. Solvency........................................................................................58
Section 3.24. Labor Matters...................................................................................58
Section 3.25. Government Contracts............................................................................59
Section 3.26. Customer and Trade Relations....................................................................59
Section 3.27. Bonding;........................................................................................59
Section 3.28. Status of Borrower..............................................................................59
ARTICLE 4 CONDITIONS TO NEW TERM LOANS..............................................................................60
Section 4.1. Conditions Precedent............................................................................60
ARTICLE 5 AFFIRMATIVE COVENANTS.....................................................................................66
Section 5.1. Financial Statements and Other Information......................................................66
Section 5.2. Existence; Compliance with Laws; Conduct of Business............................................70
Section 5.3. Maintenance of Properties.......................................................................70
Section 5.4. Notice of Material Events with Respect to the Collateral........................................71
Section 5.5. Insurance; Damage to or Destruction of Collateral...............................................71
Section 5.6. Books and Records...............................................................................73
Section 5.7. Intentionally Omitted...........................................................................73
Section 5.8. Observance of Agreements........................................................................73
Section 5.9. Taxes and Charges; Obligations in the Ordinary Course of Business...............................73
Section 5.10. Environmental Laws..............................................................................74
Section 5.11. Subsidiaries....................................................................................75
Section 5.12. Real Property Assets............................................................................75
Section 5.13. Further Assurances; Security Interests..........................................................76
Section 5.14. Liens...........................................................................................78
Section 5.15. Lease Agreements and Joint Venture Agreements...................................................78
Section 5.16. New Term Lender Meetings........................................................................78
Section 5.17. Intentionally Omitted...........................................................................78
Section 5.18. Supplemental Disclosure.........................................................................78
Section 5.19. Intellectual Property...........................................................................78
Section 5.20. Post-Closing Matters............................................................................79
ARTICLE 6 NEGATIVE COVENANTS........................................................................................79
Section 6.1. Limitations on Indebtedness.....................................................................79
Section 6.2. Limitations on Liens............................................................................80
Section 6.3. Limitation on Guaranties........................................................................82
Section 6.4. Limitations on Investments......................................................................82
Section 6.5. Restricted Payments; Certain Payments of Indebtedness...........................................84
Section 6.6. Intentionally Omitted...........................................................................84
Section 6.7. Merger, Sale of Assets, Purchases, etc..........................................................84
Section 6.8. Sale Leaseback Transactions.....................................................................86
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Section 6.9. Limitation on Capital Expenditures..............................................................86
Section 6.10. Minimum Consolidated EBITDA.....................................................................86
Section 6.11. Maximum Leverage Ratio..........................................................................87
Section 6.12. Minimum Fixed Charge Coverage Ratio.............................................................87
Section 6.13. Transactions with Affiliates....................................................................87
Section 6.14. Restrictive Agreements..........................................................................87
Section 6.15. Amendments of New Working Capital Facility......................................................88
Section 6.16. Line of Business; Changes in Business...........................................................88
Section 6.17. Intentionally Omitted...........................................................................88
Section 6.18. ERISA Compliance................................................................................88
Section 6.19. Hazardous Materials.............................................................................89
Section 6.20. Fiscal Year; Fiscal Quarter.....................................................................89
Section 6.21. Deposit Accounts; Securities Accounts...........................................................89
Section 6.22. Real Estate Purchases...........................................................................89
Section 6.23. Change of Corporate Name, State of Incorporation or Location....................................89
ARTICLE 7 EVENTS OF DEFAULT.........................................................................................90
ARTICLE 8 GUARANTY..................................................................................................93
Section 8.1. Guaranty........................................................................................93
Section 8.2. No Impairment of Guaranty, etc..................................................................95
Section 8.3. Continuation and Reinstatement, etc.............................................................95
Section 8.4. Limitation on Guaranteed Amount, etc............................................................96
Section 8.5. Stay of Acceleration............................................................................96
ARTICLE 9 THE ADMINISTRATIVE AGENT..................................................................................96
Section 9.1. Administration by the Administrative Agent......................................................96
Section 9.2. Payments; Application of Proceeds...............................................................97
Section 9.3. Right of Set-Off; Sharing of Set-offs; Defaulting New Term Lender...............................97
Section 9.4. Notice to the New Term Lenders..................................................................98
Section 9.5. Liability of the Collateral Agent and the Administrative Agent..................................99
Section 9.6. Reimbursement and Indemnification..............................................................100
Section 9.7. Independent Investigation by New Term Lenders..................................................101
Section 9.8. Delegation to Sub-Agents.......................................................................101
Section 9.9. Agreement of the New Term Lenders..............................................................101
Section 9.10. Notice of Transfer.............................................................................101
Section 9.11. Resignation of Administrative Agent; Successor Administrative Agent............................101
Section 9.12. New Term Lender Payments.......................................................................102
ARTICLE 10 MISCELLANEOUS............................................................................................102
Section 10.1. Notices........................................................................................102
Section 10.2. Survival of Agreement, Representations and Warranties, etc.....................................104
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Section 10.3. Successors and Assigns; Syndications; Loan Sales; Participations...............................104
Section 10.4. Expenses.......................................................................................108
Section 10.5. Indemnity......................................................................................109
Section 10.6. CHOICE OF LAW..................................................................................110
Section 10.7. WAIVER OF JURY TRIAL...........................................................................110
Section 10.8. WAIVER WITH RESPECT TO DAMAGES.................................................................111
Section 10.9. No Waiver......................................................................................111
Section 10.10. Extension of Payment Date......................................................................112
Section 10.11. Amendments, etc................................................................................112
Section 10.12. Severability...................................................................................112
Section 10.13. SERVICE OF PROCESS.............................................................................113
Section 10.14. Headings.......................................................................................114
Section 10.15. Execution in Counterparts......................................................................114
Section 10.16. Subordination of Intercompany Indebtedness, Receivables and
Advances.......................................................................................114
Section 10.17. Confidentiality................................................................................114
Section 10.18. Entire Agreement...............................................................................115
Section 10.19. Enforcement of Rights; No Obligation to Xxxxxxxx Assets........................................115
Section 10.20. Reproduction of Documents......................................................................115
Section 10.21. Change in GAAP.................................................................................116
Section 10.22. "Most Favored" Secured Creditor................................................................116
Section 10.23. Collateral Agent...............................................................................117
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Schedules
---------
1 Guarantors
2.1(a) Schedule of Outstanding New Term Loans/New Term Lender
2.15 Cash Management System
3.1(a) List of jurisdictions where the Borrower is qualified
3.1(b) List of jurisdictions where Other Loan Parties are qualified
3.1(c) Type of Entity and Organization Information
3.3(b) Necessary Permits
3.3(c) Governmental Approvals
3.5(a) Material Adverse Effects
3.6(a) Financial Statements
3.6(b) Indebtedness incurred since December 31, 2002
3.6(d) Pro Forma
3.6(e) Projections
3.7(a) Loan Parties and Subsidiaries of Loan Parties
3.7(b) Beneficial Interests in Persons other than a Loan Party or a
Subsidiary of a Loan Party
3.7(c) Joint Ventures and Partnerships in which a Loan Party is a general
or limited partner
3.8 Proprietary Rights
3.9(a) Real Property Assets
3.9(c) Collateral Locations
3.9(e) Material Permits
3.10 Litigation
3.13 Tax Matters
3.14 ERISA Plans
3.17 Environmental Matters
3.20 Insurance
3.22 Deposit Accounts and Securities Accounts
3.24 Labor Matters
3.25 Government Contracts
3.27 Bonding;
4(d) Certificates of Merger and other Corporate Restructuring Documents
5.2 Tradenames
5.20 Post-Closing Matters
6.1 Existing Indebtedness
6.2 Existing Liens
6.3 Existing Guaranties
6.4 Existing Investments
6.13 Existing Affiliate Agreements
6.14 Restrictive Agreements
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Exhibits
--------
A Form of New Term Note
B Form of Conversion/Continuation Certificate
C Form of Assignment and Acceptance
D Form of Contribution Agreement
E-1 Form of Security Agreement
E-2 Form of Pledge Agreement
E-3 Form of Bailee Letter
E-4 Form of Landlord Waiver
F Form of Instrument of Assumption and Joinder
G Form of Excess Cash Flow Certificate
H Form of Confirmation Order
I Form of Intercreditor Agreement
J Form of Legal Opinion
K Form of Compliance Certificate
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CREDIT AND GUARANTY AGREEMENT, dated as of May 23, 2003 (as this
agreement may be amended, amended and restated, supplemented or otherwise
modified or renewed from time to time, the "Credit Agreement"), among (i)
THERMADYNE HOLDINGS CORPORATION, a Delaware corporation, (the "Borrower"); (ii)
the Guarantors referred to herein; (iii) the lenders party hereto from time to
time (each a "New Term Lender" and collectively the "New Term Lenders"); and
(iv) DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative agent and
collateral agent for the New Term Lenders.
INTRODUCTORY STATEMENT
On November 19, 2001, Thermadyne Holdings Corporation, a Delaware
corporation, and the other Debtors filed voluntary petitions with the Bankruptcy
Court initiating the Cases and have continued in the possession of their assets
and the management of their business pursuant to Sections 1107 and 1108 of the
Bankruptcy Code.
On January 17, 2003, the Debtors filed the First Amended and Restated
Plan of Reorganization with the Bankruptcy Court (the "Plan of Reorganization").
The Plan of Reorganization contemplates, inter alia, that the Debtors will
reorganize on or before the Effective Date and that the Borrower will issue new
senior debt notes in the maximum amount of $180,000,000 as more fully described
below. The Confirmation Order, signed by the Bankruptcy Court on April 3, 2003,
confirmed the Plan of Reorganization.
All terms not otherwise defined above or in this Introductory
Statement, are as defined in Article 1 hereof or as defined elsewhere herein.
To provide security for the repayment of the New Term Loan hereunder
and the other Obligations (as such term is hereinafter defined) of the Borrower
hereunder, the Borrower will, among other things, provide or cause to be
provided to the Collateral Agent, for the benefit of the Secured Parties, the
following (each as more fully described in the Security Agreement or in the
Pledge Agreement):
(i) a guaranty of the Obligations by each of the Guarantors
pursuant to Article 8 hereof;
(ii) a security interest in the Collateral from each of the Loan
Parties pursuant to the Security Agreement; and
(iii) a pledge by the Borrower and by each of the other Loan
Parties of 100% of the Equity Interests of all their
Domestic Subsidiaries and 100% of the non-voting Equity
Interests and 65% of the voting Equity Interests of all
Foreign Subsidiaries, in either case to the extent directly
owned by each such Loan Party, pursuant to the Pledge
Agreement;
Accordingly, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes hereof unless the context otherwise requires, all
references to Sections, Exhibits and Schedules shall be deemed references to
Sections of, and Exhibits and Schedules to, this Credit Agreement, the following
terms shall have the meanings indicated, all accounting terms not otherwise
defined herein shall have the respective meanings accorded to them under GAAP,
and all terms defined in the UCC and not otherwise defined herein shall have the
respective meanings accorded to them therein. Whenever the context may require,
any pronoun shall include the masculine, feminine and neuter forms. Unless the
context otherwise requires, any of the following terms may be used in the
singular or the plural, depending on the reference:
"Accounts" shall mean all "accounts," as such term is defined in the
UCC, now owned or hereafter acquired by the Loan Parties, including (a) all
accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper, or
Instruments), (including any such obligations that may be characterized as an
account or contract right under the UCC), (b) all of the Loan Party's rights in,
to and under all purchase orders or receipts for goods or services, (c) all of
the Borrower's or any Loan Party's rights to any goods represented by any of the
foregoing (including unpaid sellers' rights of rescission, replevin, reclamation
and stoppage in transit and rights to returned, reclaimed or repossessed goods),
(d) all rights to payment due to the Borrower or any Loan Party for property
sold, leased, licensed, assigned or otherwise disposed of, for a policy of
insurance issued or to be issued, for a secondary obligation incurred or to be
incurred, for energy provided or to be provided, for the use or hire of a vessel
under a charter or other contract, arising out of the use of a credit card or
charge card, or for services rendered or to be rendered by the Borrower or any
such Loan Party or in connection with any other transaction (whether or not yet
earned by performance on the part of the Borrower or any such Loan Party), (e)
all health care insurance receivables and (f) all collateral security of any
kind, given by any account debtor or any other Person with respect to any of the
foregoing.
"Adjusted EBITDA" shall mean, for any period, 100% of EBITDA of the
Borrower and its Domestic Subsidiaries and 65% of the EBITDA of each of the
Borrower's and each of the other GECC Borrower's Subsidiaries that are organized
under the laws of Canada or any province of Canada.
"Administrative Agent" shall mean Deutsche Bank Trust Company
Americas, in its capacity as administrative agent for the New Term Lenders
hereunder, or such successor Administrative Agent as may be appointed pursuant
to Section 9.11 hereof.
"Affected Eurodollar Loans" shall have the meaning set forth in
Section 2.6(h) hereof.
"Affiliate" shall mean with respect to any Person (including a Loan
Party), any other Person which, directly or indirectly, is in Control of, is
Controlled by, or is under common Control with, such Person. For purposes of
this definition, a Person shall be deemed to be "controlled by" another Person
if such latter Person possesses, directly or indirectly, either (i) the power to
vote 10% or more of any class of voting securities or other Equity Interests of
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such Controlled Person or (ii) the power to direct or cause the direction of the
management and policies of such Controlled Person whether by contract or
otherwise.
"Applicable Interest Margin" shall mean the following:
(a) from the Effective Date through the second anniversary of the
Effective Date, if the aggregate principal amount outstanding of New Senior
Indebtedness on the applicable Interest Payment Date is such amount as is set
forth below, then the Applicable Interest Margin is the percentage set forth
below opposite each such amount, as follows:
in the case of a Eurodollar Loan:
(i) less than $185 million, 3.0%;
(ii) $185 million or above but below $200 million, 4.0%;
(iii) $200 million or above but below $230 million, 4.5%;
(iv) $230 million or above but below $240 million, 5.0%;
(v) $240 million or above but below $260 million, 6.0%; and
(vi) $260 million or above, 6.5%; and
in the case of a Base Rate Loan:
(vii) less than $185 million, 2.0%;
(viii) $185 million or above but below $200 million, 3.0%;
(ix) $200 million or above but below $230 million, 3.5%;
(x) $230 million or above but below $240 million, 4.0%;
(xi) $240 million or above but below $260 million, 5.0%; and
(xii) $260 million or above, 5.5%;
(b) from the second anniversary of the Effective Date through the
third anniversary of the Effective Date if the aggregate principal amount
outstanding of the New Senior Indebtedness on the applicable Interest Payment
Date is such amount as is set forth below, then the Applicable Interest Margin
is the percentage set forth below opposite each such amount, as follows:
in the case of a Eurodollar Loan:
(i) below $185 million, 3.5%;
(ii) $185 million or above but below $200 million, 4.5%;
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(iii) $200 million or above but below $230 million, 5.0 %;
(iv) $230 million or above but below $240 million, 5.5%;
(v) $240 million or above but below $260 million, 6.5%; and
(vi) $260 million or above, 7.0%; and
in the case of a Base Rate Loan:
(vii) below $185 million, 2.5%;
(viii) $185 million or above but below $200 million, 3.5%;
(ix) $200 million or above but below $230 million, 4.0 %;
(x) $230 million or above but below $240 million, 4.5%;
(xi) $240 million or above but below $260 million, 5.5%; and
(xii) $260 million or above, 6.0%;
(c) from the third anniversary of the Effective Date until all
Obligations have been paid in full, if the aggregate principal amount
outstanding of the New Senior Indebtedness on the applicable Interest Payment
Date is such amount as is set forth below, then the Applicable Interest Margin
is the percentage set forth below opposite each such amount, as follows:
in the case of the a Eurodollar Loan:
(i) below $185 million, 4.0%;
(ii) $185 million or above but below $200 million, 5.0%;
(iii) $200 million or above but below $230 million, 5.5%;
(iv) $230 million or above but below $240 million, 6.0%;
(v) $240 million or above but below $260 million, 7.0%; and
(vi) $260 million or above, 7.5%; and
in the case of a Base Rate Loan:
(vii) below $185 million, 3.0%;
(viii) $185 million or above but below $200 million, 4.0%;
(ix) $200 million or above but below $230 million, 4.5%;
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(x) $230 million or above but below $240 million, 5.0%;
(xi) $240 million or above but below $260 million, 6.0%; and
(xii) $260 million or above, 6.5%;
"Applicable Law" shall mean all provisions of statutes, rules,
regulations and orders of the United States, any state thereof or municipality
therein, or of any foreign governmental body, or of any regulatory agency, in
each case, applicable to the Person in question, and all orders and decrees of
all courts and arbitrators in proceedings or actions in which the Person in
question is a party.
"Assignment and Acceptance" shall mean an agreement substantially in
the form of Exhibit C hereto, executed by the assignor, the assignee and the
other parties as contemplated hereby or thereby.
"Authorized Officer" shall mean, with respect to the Borrower or any
Guarantor, the president, vice president, chief financial officer, chief
accounting officer, secretary, treasurer of the managing member or general
partner of such entity or of such entity itself, as the case may be.
"Bailee Letter" shall mean that certain bailee letter agreement,
substantially in the form of Exhibit E-3 attached hereto, among the Collateral
Agent, the New Working Capital Facility Agent, bailee and the applicable Loan
Party.
"Bank Credit Termination Date" shall mean the date on which all of
the Obligations have been indefeasibly paid in full in cash.
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, as codified at 11 U.S.C. ss. 101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Eastern District of Missouri, Eastern Division having jurisdiction over the
Cases or any other court having jurisdiction over the Cases from time to time.
"Base Rate" shall mean for any day and with respect to all Base Rate
Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds Rate
and (b) the rate of interest in effect for such day as most recently publicly
announced or established by JPMorgan Chase & Co. in New York, New York, as its
Prime Rate for U.S. Dollar obligations. Any change in the Prime Rate established
or announced by JPMorgan Chase & Co. shall take effect at the opening of
business on the day of such establishment or announcement.
"Base Rate Loan" shall mean a New Term Loan based on the Base Rate in
accordance with the provisions of Article 2 hereof.
"Blocked Account Agreements" shall mean, individually or
collectively, that certain (i) Multi-Party Blocked Account Agreement (Full Cash
Dominion Depository Accounts) and (ii) Multi-Party Blocked Account Agreement
(Springing- Disbursement Accounts) among the Loan Parties thereto, the
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Collateral Agent, the New Working Capital Facility Agent and Bank One, N.A., and
such other blocked account agreements entered into among the applicable Loan
Parties, the Collateral Agent, the New Working Capital Facility Agent and the
applicable Relationship Bank from time to time with respect to the accounts and
lockboxes of the Loan Parties subject thereto, as each such agreement may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" shall have the meaning given to such term in the initial
paragraph of this Credit Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks are required or permitted to be closed in
the State of Illinois or New York; provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any such day that is not also a LIBOR Business Day.
"Canadian Subsidiary" shall mean each Subsidiary of the Borrower
organized under the laws of Canada or any province of Canada.
"Capital Expenditures" shall mean, with respect to any Person for any
period, all expenditures (by the expenditure of cash or the incurrence of
Indebtedness) by such Person during any measuring period for any fixed assets or
improvements or for replacements, substitutions or additions thereto that have a
useful life of more than one year and that are required to be capitalized under
GAAP, plus, without duplication, cash investments in Foreign Subsidiaries;
provided that for the 2003 and 2004 Fiscal Years the amount of Capital
Expenditures actually paid during the Fiscal Period will not include up to $5.5
million in the aggregate of Capital Expenditures, to the extent that they are
financed by a Capital Lease, in respect of any new lease of real property in
Denton, Texas in connection with the relocation of Tweco's operations from
Wichita, Kansas to Denton, Texas.
"Capital Lease", as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or which would be required to be classified as a
capital lease on the balance sheet of that Person.
"Cases" shall mean the cases under Chapter 11 of the Bankruptcy Code
commenced by the Debtors on November 19, 2001 in the Bankruptcy Court.
"Cash Equivalents" shall mean (i) marketable securities issued, or
directly and fully guaranteed or insured, by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) in each case, having
a maturity of not more than twelve (12) months from the date of acquisition;
(ii) deposit accounts with any New Term Lender or a bank which has a long-term
debt rating of AA or better by S&P, or Aa or better by Xxxxx'x (an "Approved
Bank"); (iii) time deposits, certificates of deposit, acceptances or prime
commercial paper issued by, or repurchase obligations for underlying securities
of the types described in clause (i) entered into with, an Approved Bank at the
6
time acquired, issued or entered into (as applicable), in each case, having a
maturity of not more than twelve (12) months from the date of acquisition; (iv)
commercial paper with a rating of A-1 by S&P or P-1 by Xxxxx'x and, in each
case, having a maturity of not more than twelve (12) months from the date of
acquisition; or (v) investments in money market funds which invest primarily in
the foregoing obligations.
"Cash Management System" shall mean the cash management system of the
Loan Parties as set forth on Schedule 2.15 hereto.
"Change in Control" shall mean the happening of any of the following:
(i) any event or series of events shall occur after the Closing
Date pursuant to, or by, which any "person" or "group" (as such terms are used
in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) other than any New Term Lender on the Effective
Date of the Credit Agreement shall become the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "Option
Right"), whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 30%, but with respect to any New Term
Lender of 50%, or more of the Equity Interests of the Borrower entitled to vote
for members of the Board of Directors of the Borrower, on a fully-diluted basis
(and taking into account all such Equity Interests that such "person" or "group"
has the right to acquire pursuant to any Option Right); or
(ii) at any time, a majority of the members of the Board of
Directors of the Borrower shall cease to be composed of individuals (A) who were
members of the Board of Directors of the Borrower on the Effective Date, (B)
whose election or nomination to the Board of Directors of the Borrower was
approved by individuals referred to in clause (A) above constituting at the time
of such election or nomination at least a majority of the Board of Directors of
the Borrower or (C) whose election or nomination to the Board of Directors of
the Borrower was approved by individuals referred to in clauses (A) and (B)
above constituting at the time of such election or nomination at least a
majority of the Board of Directors of the Borrower.
"Charges" shall mean all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the PBGC at
the time due and payable), levies, assessments, charges, Liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income or gross receipts of any Loan Party, (d) any Loan
Party's ownership or use of any properties or other assets, or (e) any other
aspect of any Loan Party's business.
"Chattel Paper" shall mean any "chattel paper," as such term is
defined in the UCC, including electronic chattel paper, now owned or hereafter
acquired by any Loan Party.
7
"Code" shall mean the Internal Revenue Code of 1986, as heretofore
and hereafter amended, as codified at 26 U.S.C. ss. 1 et seq., and the rules and
regulations promulgated thereunder, or any successor provision thereto.
"Collateral" shall mean the property covered by the Security
Agreement and the other Security Documents and any other property, real or
personal, tangible or intangible, now existing or hereafter acquired, that may
at any time be or become subject to a security interest or Lien in favor of the
Collateral Agent, on behalf of itself and the New Term Lenders, to secure the
Obligations.
"Collateral Agent" shall mean Deutsche Bank Trust Company Americas,
in its capacity as Collateral Agent for the New Term Lenders under the Security
Documents and the Intercreditor Agreement or such successor Collateral Agent as
may be appointed pursuant to the Security Documents.
"Compliance Certificate" shall have the meaning set forth in Section
5.1(a) hereof.
"Condemnation Event" shall mean any condemnation or other taking, or
temporary or permanent requisition of any property, any interest therein or
right appurtenant thereto, or any change of grade affecting any property, in
each case as the result of the exercise of any right of condemnation or eminent
domain. A sale or other transfer to a Governmental Authority in lieu of, or in
anticipation of, condemnation shall be deemed to be a Condemnation Event.
"Condemnation Proceeds" shall mean, with respect to any Condemnation
Event, all awards or payments received by a Loan Party or any Subsidiary thereof
by reason of such Condemnation Event, including, without limitation, all amounts
received with respect to any transfer in lieu of, or in anticipation of, such
Condemnation Event or in settlement of any proceeding relating to such
Condemnation Event; but excluding any such award and other payment so received
as and to the extent that, pursuant to any lease or other contractual obligation
applicable to such Loan Party or such Subsidiary (as applicable) and not
prohibited by the terms and provisions of this Credit Agreement, such Loan Party
or such Subsidiary (as applicable) is contractually obligated (i) to pay such
award or other payment to a Person (other than a Loan Party or any of its
Subsidiaries) or (ii) to expend or apply such award or other payment (or allow
another Person to expend or apply any such awards or other payments) towards the
cost of repair, restoration or replacement of the affected property or asset.
"Confirmation Order" shall have the meaning given to such term in
Section 4.1(e) hereof.
"Consolidated Capital Expenditures" shall mean Capital Expenditures,
for any fiscal period, for the Borrower and its Consolidated Subsidiaries.
"Consolidated EBITDA" shall mean EBITDA for any fiscal period for the
Borrower and its Consolidated Subsidiaries.
"Consolidated Fixed Charges" shall mean Fixed Charges for any fiscal
period for the Borrower and its Consolidated Subsidiaries.
8
"Consolidated Subsidiaries" shall mean all Subsidiaries of a Person
which are required or permitted to be consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contribution Agreement" shall mean the contribution agreement, in
the form of Exhibit D hereto executed by each of the Loan Parties, which
agreement shall provide for a right of contribution among the Guarantors and the
Borrower if any of the Guarantors is called upon to perform under its Guaranty
hereunder, as such agreement may be amended, amended and restated, supplemented
or otherwise modified, renewed or replaced from time to time.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have correlative meanings.
"Control Letter" means a letter agreement between the Collateral
Agent and (i) the issuer of uncertificated securities with respect to
uncertificated securities in the name of the Borrower or any of the other Loan
Parties, (ii) a securities intermediary with respect to securities, whether
certificated or uncertificated, securities entitlements and other financial
assets held in a Securities Account in the name of the Borrower or any such
other Loan Parties, (iii) a futures commission merchant or clearing house, as
applicable, with respect to commodity accounts and commodity contracts held by
the Borrower or such other Loan Parties, whereby, among other things, the
issuer, securities intermediary or futures commission merchant limits any
security interest in the applicable financial assets in a manner reasonably
satisfactory to the Required Lenders, acknowledges the Lien of the Collateral
Agent, on behalf of itself and the New Term Lenders, on such financial assets,
and agrees to follow the instructions or entitlement orders of the Collateral
Agent without further consent by the affected Loan Party.
"Conversion/Continuation Certificate" shall mean a certificate
substantially in the form of Exhibit B hereto, to be delivered by the Borrower
to the Administrative Agent in connection with a continuation or a conversion of
a Loan pursuant to Sections 2.8 and 2.11 hereof.
"Copyright License" shall mean rights under any written agreement now
owned or herein after acquired by the Borrower or any other Loan Party granting
any right to use any Copyright.
"Copyright Security Agreement" shall mean those certain Copyright
Security Agreements substantially in the form of Exhibit B to the Security
Agreement made by each applicable Loan Party in favor of the Collateral Agent
for the benefit of itself and the New Term Lenders, as such agreement may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time.
"Copyrights" shall mean all of the following now owned or hereafter
adopted or acquired by the Borrower or any other Loan Party: (a) all copyrights
and works of authorship (whether registered or unregistered), all registrations
and recordings thereof, and all applications in connection therewith, including
all registrations, recordings and applications in the United States Copyright
Office or in any similar office or agency of the United States, any state or
9
territory thereof, or any other country or any political subdivision thereof,
and (b) all reissues, extensions or renewals thereof.
"Credit Agreement" shall have the meaning given to such term in the
initial paragraph of this agreement.
"Creditors' Committee" shall mean the statutory committee of
unsecured creditors appointed in the Cases pursuant to Section 1102 of the
Bankruptcy Code.
"Debtors" shall mean Thermadyne Holdings, Thermadyne Mfg., Thermadyne
Capital Corp., Thermadyne Industries, Inc., Xxxxxx Equipment Company, Thermadyne
International Corporation, Thermadyne Cylinder Co., Thermal Dynamics
Corporation, C&G Systems Holding, Inc., MECO Holding Company, Tweco Products,
Inc., TAG Realty, Inc., Xxxxxx-Xxxxx International, Inc., Xxxxxx Gas Systems,
Inc., Stoody Company, Thermal Arc, Inc., C&G Systems, Inc., Marison Cylinder
Company, Wichita Warehouse Corporation, Xxxxx Natural Gas Systems, Inc. and
Modern Engineering Company, Inc.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Deposit Account" shall mean all "deposit accounts" as such term is
defined in the UCC, now or hereafter held in the name of the Borrower or any
Loan Party.
"DIP Agent" shall mean ABN AMRO Bank N.V., as administrative and
collateral agent under the DIP Facility.
"DIP Facility" shall mean that certain revolving credit facility in
the aggregate principal amount of up to $50 million with a sublimit of $15
million for standby letters of credit, and evidenced by that certain Revolving
Credit and Guaranty Agreement among Thermadyne Mfg. LLC, as borrower, the other
Debtors, as guarantors, the DIP Agent, and the lenders from time to time party
thereto, dated as of November 26, 2001, as amended, and all other documents and
instruments evidencing and/or setting forth the terms of the debtor in
possession financing arrangements in the Cases, as approved by the DIP Financing
Order.
"DIP Financing Order" shall mean the Order of the Bankruptcy Court
dated November 21, 2001, as amended, approving and authorizing the terms of the
DIP Facility in the Cases.
"DIP Letters of Credit" shall mean all letters of credit issued
pursuant to the DIP Facility and outstanding as of the Effective Date.
"Disclosure Statement" shall mean the First Amended and Restated
Disclosure Statement filed by the Debtors in the Cases on January 17, 2003.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean a Subsidiary that is organized under
the laws of the United States of America, a State thereof or the District of
Columbia.
10
"EBITDA" shall mean, with respect to any Person for any fiscal
period, without duplication, an amount equal to (a) consolidated net income of
such Person for such period determined in accordance with GAAP, minus (b) the
sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale, exchange or other
disposition of capital assets by such Person (including any fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities), and (v) any other non-cash
gains that have been added in determining consolidated net income, in each case
to the extent included in the calculation of consolidated net income of such
Person for such period in accordance with GAAP, but without duplication, plus
(c) the sum of (i) any provision for income taxes, (ii) Interest Expense
(including commitment, agency and letter of credit fees) and deferred financing
costs, (iii) depreciation and amortization for such period, (iv) amortized debt
discount for such period, (v) the amount of any deduction to consolidated net
income as the result of any grant to the management or employees of such Person
or its Subsidiaries of any Stock or stock options, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication, (vi) of net periodic
post retirement benefits, (vii) losses from extraordinary items for such period,
(viii) the non-cash portion of any non-recurring expenses, (ix) restructuring
expenses related to, arising out of or in connection with the Cases and (x) any
non-recurring employee severance expenses and non-recurring cash expenses
related to plant reorganizations, not to exceed $5,000,000 in the aggregate,
plus or minus as applicable (d) the amount of cash received or expended in such
period in respect of any amount which, under clauses (b)(v) and (c)(viii) above,
was taken into account in determining EBITDA for such period or any prior
period. For purposes of this definition, the following items shall be excluded
in determining consolidated net income of a Person: (1) the income (or deficit)
of any other Person accrued prior to the date it became a Subsidiary of, or was
merged or consolidated into, such Person or any of such Person's Subsidiaries;
(2) the income (or deficit) of any other Person (other than a Subsidiary) in
which such Person has an ownership interest, except to the extent any such
income has actually been received by such Person in the form of cash dividends
or distributions; (3) the undistributed earnings of any Subsidiary of such
Person to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary;
(4) any restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of income accrued during such
period; (5) any write-up of any asset; (6) any net gain from the collection of
the proceeds of life insurance policies; (7) any net gain arising from the
acquisition of any securities, or the extinguishment, under GAAP, of any
Indebtedness, of such Person; (8) in the case of a successor to such Person by
consolidation or merger or as a transferee of its assets, any earnings of such
successor prior to such consolidation, merger or transfer of assets; and (9) any
deferred credit representing the excess of equity in any Subsidiary of such
Person at the date of acquisition of such Subsidiary over the cost to such
Person of the investment in such Subsidiary.
"Effective Date" shall mean the first Business Day after which the
Confirmation Order shall have become a Final Order and on which each of the
conditions set forth in Section 4.1 shall have been satisfied or waived in
accordance with the terms hereof.
11
"Eligible Assignee" shall mean (i) a New Term Lender, (ii) an
Affiliate of a New Term Lender, (iii) a Related Fund, (iv) a commercial bank
having total assets in excess of $1,500,000,000, or (v) a finance company,
insurance company, savings and loan association, savings bank, other financial
institution, investing company or fund, which in the ordinary course of its
business extends or invests in commercial loans and/or letter of credit
facilities and whose becoming an assignee would not constitute a prohibited
transaction under Section 4975 of ERISA; for the avoidance of doubt, neither the
Borrower nor any Subsidiary of the Borrower may be an Eligible Assignee.
"Environment" shall mean any environmental media, including, without
limitation, all surface or subsurface water, groundwater, water vapor, surface
or subsurface soil, geologic strata and formations, air, fish, wildlife,
microorganisms and all other natural resources.
"Environmental Claim" shall mean any and all administrative,
statutory, judicial or other actions, suits, orders, claims, demands, Liens,
notices, notices of violations, investigations, complaints, requests for
information, proceedings, or other communication (written or oral), whether
criminal or civil, alleging non-compliance with, or liability under, any
applicable Environmental Law by any Person (including, but not limited to, any
Governmental Authority, private person and citizens' group), including, without
limitation (i) violation of or liability under any Environmental Law, (ii)
violation of any Environmental Permit, or (iii) liability under or pursuant to
any Environmental Law or Environmental Permit for investigatory costs
(including, without limitation, all studies, samplings and testing), cleanup
costs, monitoring costs, removal and abatement costs, remedial costs, response
costs, natural resource damages, damages, property damage, personal injuries,
fines, judgments, losses, expenses (including, without limitation, any attorney
or consultant fees and expenses, investigation expenses and laboratory and
litigation costs), or penalties, of whatever kind, known or unknown, contingent
or otherwise, which are threatened or asserted, arising out of, based on,
resulting from, or related to the presence, Release, or threatened Release into
the Environment, of any Hazardous Materials at any location, including, but not
limited to, any Premises or any location other than any Premises to which
Hazardous Materials or materials containing Hazardous Materials were sent for
handling, storage, treatment, or disposal by a Loan Party or a Subsidiary of a
Loan Party.
"Environmental Clean-up Site" shall mean any location which is listed
or proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any Environmental Claim or other pending or threatened action, suit,
proceeding, monitoring or investigation related to or arising from any alleged
violation of any Environmental Law, or at which there has been a Release, or a
threatened or suspected Release of a Hazardous Material.
"Environmental Laws" shall mean any and all federal, state, local or
municipal or foreign laws, rules, orders, regulations, statutes, ordinances,
codes, directives, common law doctrines, decrees or Requirements of any
Governmental Authority regulating, relating to, or imposing liability or
standards of conduct concerning, any Hazardous Material, environmental
protection, or health and safety as it relates to the Environment, as now or at
any time hereafter in effect, including without limitation, the Clean Water Act
also known as the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. ss.
1251 et seq., the Clean Air Act ("CAA"), 42 U.S.C. xx.xx. 7401 et seq., the
12
Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. xx.xx.
136 et seq., the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C.
xx.xx. 1201 et seq., the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., the Superfund Amendment
and Reauthorization Act of 1986 ("XXXX"), Public Law 99-499, 100 Stat. 1613,
Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 1801 et seq., Toxic
Substances Control Act, 15 U.S.C. xx.xx. 2601 et seq., the Emergency Planning
and Community Right to Know Act ("ECPCRKA"), 42 U.S.C. ss. 11001 et seq., the
Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq., the
Occupational Safety and Health Act as amended ("OSHA"), 29 U.S.C. ss. 651 et
seq., but only to the extent OSHA regulates health and safety as it relates to
the Environment, together, in each case, with any amendment thereto, and the
rules and regulations adopted and promulgated thereunder and all substitutions
thereof, and shall include, without limitation, any and all orders, consent
orders, directives or binding agreements issued or entered into by a
Governmental Authority under any applicable Environmental Law.
"Environmental Permit" shall mean any federal, state, local,
provincial, or foreign permits, identification numbers, registrations, licenses,
approvals, consents or authorizations (including, without limitation, any
filings or reports, notifications or assessments) required by any Governmental
Authority under or in connection with any Environmental Law.
"Equipment" shall mean all "equipment," as such term is defined in
the UCC, now owned or hereafter acquired by the Borrower or the other Loan
Parties, wherever located and, in any event, including all the Borrower's or any
such other Loan Party's machinery and equipment, including processing equipment,
conveyors, machine tools, data processing and computer equipment, including
embedded software and peripheral equipment and all engineering, processing and
manufacturing equipment, office machinery, furniture, materials handling
equipment, tools, attachments, accessories, automotive equipment, trailers,
trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and fixtures not forming a
part of real property, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
condemnation awards and insurance proceeds with respect thereto.
"Equity Interests" shall mean with respect to any Person, (i) any and
all shares of capital stock (including, without limitation, preferred stock),
partnership interests, membership interests, beneficial interests in a trust or
any other equity ownership interest (as applicable) in such Person, and any
security convertible into any of the foregoing, and (ii) any and all warrants,
options, participations, rights to purchase or other equivalents, interests or
similar rights (however designated) in or with respect to any of the foregoing
described in clause (i) applicable to such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as heretofore and hereafter amended, as codified at 29 U.S.C. ss. 1001 et
seq., and the rules and regulations promulgated thereunder, or any successor
provision thereto.
13
"ERISA Affiliate" shall mean each Person (as defined in Section 3(9)
of ERISA) which is treated as a single employer with any Loan Party under
Section 414(b), (c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean a New Term Loan based on the LIBO Rate
in accordance with the provisions of Article 2 hereof.
"Event of Default" shall have the meaning given to such term in
Article 7 hereof.
"Excess Cash Flow" shall mean, for any applicable period, for the
Borrower and its Consolidated Subsidiaries the excess (if any), of:
(a) EBITDA for such applicable period;
less
----
(b) the sum, without duplication (for such applicable period) of:
(i) the cash portion of Interest Expense (net of interest
income) for such applicable period;
plus
----
(ii) scheduled payments, to the extent actually made, of the
principal amount of the New Term Loans and scheduled
payments and optional and mandatory prepayments of the
principal of any other Funded Debt, including Capital Lease
Obligations but excluding payments on or under the New
Working Capital Facility, to the extent actually made and
for such applicable period;
plus
----
(iii) all federal, state and foreign income taxes actually paid
or payable in cash by the Borrower and its Consolidated
Subsidiaries in such applicable period;
plus
----
(iv) Capital Expenditures paid or incurred, less any new Capital
Leases entered into during such applicable period;
plus
----
(v) Investments permitted and actually made pursuant to Sections
6.4(b), 6.4(o) and 6.4(p), less any amounts financed by
Indebtedness permitted under Section 6.1, during such
applicable period;
14
plus
----
(vi) proceeds from asset sales during such applicable period,
excluding proceeds applied to reduce the Commitments (as
defined in the New Working Capital Facility Agreement) under
the New Working Capital Facility or to repay the New Working
Capital Facility Loans or subject to the reinvestment
provisions in Section 6.7(g);
plus
----
(vii) restructuring expenses related to, arising out of or in
connection with the Cases; and
plus
----
(viii) any non-recurring employee severance expenses and
non-recurring cash expenses related to plant
reorganizations, not to exceed $5,000,000 in the aggregate.
"Excess Cash Flow Certificate" shall mean that certain Excess Cash
Flow Certificate, substantially in the form of Exhibit G hereto, required to be
delivered by the Borrower on behalf of itself and its Consolidated Subsidiaries
to the New Term Lenders.
"Excluded Taxes" shall mean (a) franchise Taxes and Taxes imposed on
or measured by the net income of the Administrative Agent or New Term Lender or
similar Taxes imposed on the Administrative Agent or New Term Lender by the
jurisdictions under the laws of which such Administrative Agent or such New Term
Lender, as applicable, is organized, conducts business or has a present or
former connection (other than solely as result of, connected with, or required
by, this Transaction) and (b) any United States withholding Taxes payable with
respect to payments hereunder or the New Term Notes or under the Loan Documents
under laws (including any statute, treaty or regulation) in effect on the
Effective Date (or, in the case of (i) an assignee, the date of the Assignment
and Acceptance, (ii) a successor Administrative Agent, the date of the
appointment of such Administrative Agent) applicable to such New Term Lender, or
Administrative Agent, as the case may be, but not excluding any United States
withholding tax payable with respect to interest arising under a Loan Document
as a result of any change in such laws occurring after the Effective Date (or
the date of the Assignment and Acceptance or the date of such appointment of
such Administrative Agent).
"FASB" shall mean the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants, or successor thereto or any
agency with similar functions.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
as specified in the Wall Street Journal, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
15
"Fees" shall mean the fees referred to in Section 2.5 hereof.
"Fee Letter" shall mean the fee letter, dated May 7, 2003, between
the Administrative Agent, the Collateral Agent and the Borrower.
"Filing Date" shall mean November 19, 2001.
"Final Order" shall mean an order or judgment of the Bankruptcy Court
as to which the time to appeal, petition for certiorari, or move for reargument
or rehearing has expired and as to which no appeal, petition for certiorari, or
other proceedings for reargument or rehearing shall then be pending or as to
which any right to appeal, petition for certiorari, reargue, or rehear shall
have expired or been waived in writing in form and substance satisfactory to the
Debtors or the Reorganized Debtors or, in the event that an appeal, writ of
certiorari, or reargument or rehearing thereof has been sought, such order or
judgment of the Bankruptcy Court shall have expired or been determined by the
highest court to which such order was appealed, or certiorari, reargument or
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous Bankruptcy Rules, may
be filed with respect to such order or judgment shall not cause such order not
to be a Final Order.
"Financial Officer" shall mean the Chief Financial Officer, Treasurer
or Controller of the Borrower.
"Financial Statements" shall mean the consolidated and consolidating
income statements and balance sheets and consolidated statements of cash flows
of the Borrower and its Consolidated Subsidiaries delivered in accordance with
Sections 3.6 and 5.1 hereof.
"Fiscal Month" shall mean any of the monthly accounting periods of
Borrower.
"Fiscal Quarter" shall mean any of the quarterly accounting periods
of Borrower, ending on March 31, June 30, September 30 and December 31 of each
year.
"Fiscal Year" shall mean any of the annual accounting periods of
Borrower ending on December 31 of each year.
"Fixed Charges" shall mean, for any fiscal period, for the Borrower
and its Consolidated Subsidiaries, the aggregate of (a) all Interest Expense
paid or accrued (without duplication) during such period (less any interest
income received in cash during such period), plus (b) regularly scheduled
payments of principal with respect to Indebtedness during such period, plus (c)
Capital Expenditures during such period less new Capital Leases or purchase
money financing entered into during such period, plus (d) income taxes paid or
currently payable in cash with respect to such fiscal period. For purposes of
calculating Fixed Charges for periods ending on or prior to March 31, 2004, the
Interest Expense component of Fixed Charges shall be annualized by multiplying
Interest Expense for the period of July 1, 2003 through September 30, 2003 by 3,
multiplying Interest Expense for the period of July 1, 2003 through December 31,
2003 by 2 and multiplying Interest Expense for the period of July 1, 2003
through March 31, 2004 by 1.333.
16
"Fixed Charge Coverage Ratio" shall mean for any fiscal period for
the Borrower and its Consolidated Subsidiaries the ratio of Consolidated EBITDA
to Consolidated Fixed Charges.
"Fixtures" shall mean all "fixtures" as such term is defined in the
UCC, now owned or hereafter acquired by the Borrower of any of its Consolidated
Subsidiaries.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Funded Debt" shall mean, as of any date of determination and,
without duplication, for the Borrower and its Consolidated Subsidiaries, all
Indebtedness for borrowed money evidenced by notes, bonds, debentures, or
similar evidences of Indebtedness, and specifically including Capital Lease
Obligations, revolving credit and short-term debt, and also including, the
Obligations and obligations of the Borrower and the other Loan Parties, as
applicable, under the New Working Capital Facility and, without duplication,
Indebtedness consisting of guaranties of Funded Debt of other Persons.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time, consistently applied
(except for accounting changes in response to FASB releases, or other
authoritative pronouncements); provided, however, that for purposes of
determining compliance with any covenant set forth in Article 6 hereof, GAAP
shall mean generally accepted accounting principles in the United States of
America as in effect on the Effective Date, applied on a basis consistent with
the application used in the Financial Statements referred to in Section 3.6(a)
hereof (as applicable).
"GECC Borrower" shall mean each of Thermadyne Industries, Inc.,
Thermal Dynamics Corporation, Tweco Products, Inc., Xxxxxx Equipment Company,
C&G Systems, Inc., Stoody Company, Thermal Arc, Inc., ProTip Corporation and
Thermadyne International Corp.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of, or
pertaining to, government.
"Guarantors" shall mean those entities listed on Schedule 1 hereto
and any other direct or indirect Domestic Subsidiary of a Loan Party acquired or
created after the date hereof, which Domestic Subsidiary becomes a signatory to
this Credit Agreement as a Guarantor as required by Section 5.11 hereof.
"Guaranty" shall mean, as to any Person, any direct or indirect
obligation of such Person guaranteeing, intending to guarantee, or having the
economic effect of guaranteeing, or otherwise providing credit support for, any
Indebtedness, Capital Lease or other monetary obligation ("primary obligation")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, by contract, as a general partner or otherwise, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase or pay any such primary obligation or to purchase any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or for the
purchase of any property constituting direct or indirect security or (ii) to
17
maintain working capital or equity capital or any other financial statement
condition or liquidity of the primary obligor or otherwise to maintain the net
worth or Solvency of the primary obligor, or (c) to purchase or lease property,
securities or services from the primary obligor or other Person, in each case,
primarily for the purpose of assuring the performance of the primary obligor of
any such primary obligation or assuring the owner of any such primary obligation
of the repayment of such primary obligation. The amount of any Guaranty shall be
deemed to be an amount equal to (x) the stated or determinable amount of the
primary obligation in respect of which such Guaranty is made (or, if the amount
of such primary obligation is not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder)) or (y) the stated maximum liability under such Guaranty,
whichever is less.
"Hazardous Materials" shall mean any material, substance, chemical or
waste classified, characterized or regulated as "hazardous", "toxic",
"pollutant" or "contaminant" or words of similar meaning or effect by any
Governmental Authority having jurisdiction over or regulating the Environment,
including, without limitation, petroleum, petroleum hydrocarbons or petroleum
products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead-containing materials, polychlorinated biphenyls; and
any other materials, substances, chemicals or wastes in any amount or
concentration which are now or hereafter become characterized or regulated as
"hazardous", "toxic", "pollutant" or "contaminant" or words of similar meaning
or effect by any Governmental Authority having jurisdiction over or regulating
the Environment.
"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred 6 months or
more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are unsecured and not overdue by more than 6 months
unless being contested in good faith, (b) all reimbursement and other
obligations with respect to letters of credit, bankers' acceptances and surety
bonds, whether or not matured, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations and the present
value (discounted at the Index Rate provided by GAAP as in effect on the
Effective Date) of future rental payments under all synthetic leases, (f) all
obligations of such Person under commodity purchase or option agreements or
other commodity price hedging arrangements, in each case whether contingent or
matured, (g) all obligations of such Person under any foreign exchange contract,
currency swap agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of that Person
arising from fluctuations in currency values or interest rates, in each case
whether contingent or matured, (h) all Indebtedness referred to above secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property or other assets
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
(i) any Guaranty by such Person of any obligation of another Person which
obligation is of a type described in other clauses of this definition of
18
"Indebtedness" but excluding any Guaranty in favor of the New Term Lenders or
the New Working Capital Facility Lenders, and (j) the Obligations.
"Indemnified Party" shall have the meaning given to such term in
Section 10.5 hereof.
"Index Rate" shall mean, for any day, a floating rate equal to the
higher of (i) the rate publicly quoted from time to time by The Wall Street
Journal as the "prime rate" (or, if The Wall Street Journal ceases quoting a
prime rate, the highest per annum rate of interest published by the Board in
Federal Reserve statistical release H.15 (519) entitled "Selected Interest
Rates" as the Bank prime loan rate or its equivalent), and (ii) the Federal
Funds Rate plus 50 basis points per annum. Each change in any interest rate
provided for in the Agreement based upon the Index Rate shall take effect at the
time of such change in the Index Rate.
"Instruments" shall mean all "instruments," as such term is defined
in the UCC, now owned or hereafter acquired by any Loan Party, wherever located,
and, in any event, including all certificated securities, all certificates of
deposit, and all promissory notes and other evidences of indebtedness, other
than instruments that constitute, or are a part of a group of writings that
constitute, Chattel Paper.
"Instrument of Assumption and Joinder" shall mean an Assumption and
Joinder Agreement substantially in the form of Exhibit F hereto.
"Intercreditor Agreement" shall mean that certain Intercreditor
Agreement dated as of the date hereof between the Borrower, the Administrative
Agent, the Collateral Agent, and the New Working Capital Facility Agent in
substantially the form of Exhibit I hereto, as such agreement may be amended,
amended and restated, supplemented or otherwise modified, renewed or replaced
from time to time.
"Interest Deficit" shall have the meaning given to such term in
Section 2.13 hereof.
"Interest Expense" shall mean, with respect to any Person for any
fiscal period, interest expense (whether cash or non-cash) of such Person
determined in accordance with GAAP for the relevant period ended on such date,
including, without duplication, interest expense with respect to any Funded Debt
of such Person and interest expense for the relevant period that has been
capitalized on the balance sheet of such Person.
"Interest Payment Date" shall mean (a) as to any Eurodollar Loan, (i)
the last Business Day of each Fiscal Quarter (commencing on the last Business
Day of June, 2003) and (ii) the last Business Day of any Interest Period, (b) as
to any Base Rate Loan, (i) the last Business Day of each month and (ii) the date
on which such Base Rate Loan is converted to a Eurodollar Loan pursuant to and
in accordance with Section 2.11 hereof and (c) as to any New Term Loan, the
Business Day on which the principal amount of such New Term Loan is due and
payable, whether upon the scheduled amortization or a prepayment thereof, by
acceleration or otherwise.
"Interest Period" shall mean as to any Eurodollar Loan, the period
commencing on the date such Loan is continued or converted or the last day of
the preceding Interest Period and ending on the numerically corresponding day
(or if there is no corresponding day, then the last day) in the calendar month
that is one, two, three or six months thereafter as the Borrower may elect;
19
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such next succeeding Business Day would fall in
the next calendar month, in which case, such Interest Period shall end on the
next preceding Business Day, (ii) no Interest Period may be selected which would
end later than the Maturity Date, (iii) interest shall accrue from and including
the first day of such Interest Period to, but excluding, the last date of such
Interest Period, and (iv) no Interest Period may be selected which would result
in the aggregate amount of Eurodollar Loans having Interest Periods ending after
any date on which an installment of principal of the New Term Loans is scheduled
to mature, being in excess of the aggregate principal installments scheduled to
mature after such date.
"Interest Rate Type" shall mean the type of New Term Loan whether a
Eurodollar Loan or a Base Rate Loan.
"Inventory" means all "inventory," as such term is defined in the UCC
(as defined below), now owned or hereafter acquired by the Loan Parties,
wherever located, and in any event including inventory, merchandise, goods and
other personal property that are held by or on behalf of the Borrower or any
such Loan Party for sale or lease or are furnished or are to be furnished under
a contract of service, or that constitute raw materials, work in process,
finished goods, returned goods, or materials or supplies of any kind, nature or
description used or consumed or to be used or consumed in the Borrower or any
such Loan Party's business or in the processing, production, packaging,
promotion, delivery or shipping of the same, including all supplies and embedded
software.
"Investment" shall mean any capital stock, evidence of Indebtedness,
or other Equity Interest or security of any Person (including, without
limitation, any option, warrant or other right to acquire any of the foregoing),
any loan, advance, contribution of capital, extension of credit or commitment
therefor (including, without limitation, the Guaranty of loans made to others
and Guaranties of other obligations but excluding any current trade or customer
account receivable for goods sold or services provided and arising in the
ordinary course of business and payable in accordance with customary trading
terms in the ordinary course of business, not to exceed one hundred twenty (120)
days after the date the applicable receivable is accrued in accordance with
GAAP), any investment or other interest in any Person, any purchase or other
acquisition of (i) any Equity Interest or security of another Person or (ii) a
line of business, or all or substantially all of the assets, of any Person or
any commitment to make any such purchase.
"IRS" shall mean the Internal Revenue Service.
"Joint Venture" shall mean any Person (other than a direct
wholly-owned Subsidiary of a Loan Party) in which an Equity Interest is, at the
time any determination is being made, owned or Controlled by a Loan Party as
permitted by this Credit Agreement.
"Landlord Waiver" shall mean that certain landlord waiver and
consent, substantially in the form of Exhibit E-4 attached hereto, among the
Collateral Agent, the New Working Capital Facility Agent, landlord and the
applicable Loan Party.
20
"Lending Office" shall mean, with respect to any of the New Term
Lenders, the branch or branches (or Affiliate or Affiliates) from which such New
Term Lender's Eurodollar Loans or Base Rate Loans, as the case may be, are made
or maintained, and for the account of which all payments of principal of, and
interest on, such New Term Lender's Eurodollar Loans or Base Rate Loans are
made, as notified to the Administrative Agent from time to time.
"Leverage Ratio" shall mean, for any fiscal period, for the Borrower
and its Consolidated Subsidiaries, the ratio of (a) Funded Debt (less all cash
and Cash Equivalents) as of any date of determination (including the average
daily closing balance of the New Working Capital Loan for the thirty (30) days
preceding and including any date of determination), to (b) EBITDA for the twelve
months ending on that date of determination.
"LIBOR Business Day" shall mean a Business Day on which banks in the
City of London are generally open for interbank or foreign exchange
transactions.
"LIBO Rate" shall mean, for each Interest Period, a rate of interest
determined by the Administrative Agent equal to:
(a) the offered rate for deposits in United States Dollars for
the applicable Interest Period that appears on Telerate
Page 3750 as of 11:00 a.m. (London time), on the second
full Business Day next preceding the first day of such
Interest Period (unless such date is not a Business Day, in
which event the next succeeding Business Day will be used);
divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on the day that is two
(2) Business Days prior to the beginning of such Interest
Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Board or
other Governmental Authority having jurisdiction with
respect thereto, as now and from time to time in effect)
for Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board)
that are required to be maintained by a member bank of the
Federal Reserve System.
If such interest rates shall cease to be available from Telerate News
Service (or its successor satisfactory to the Administrative Agent),
the LIBO Rate shall be determined from such financial reporting
service or other information as shall be mutually acceptable to the
Administrative Agent and the Borrower.
"License" shall mean any Copyright License, Patent License, Trademark
License or other license of rights or interests now held or hereafter acquired
by the Borrower or any of its Consolidated Subsidiaries.
"Lien" shall mean any mortgage, deed of trust, hypothecation, pledge,
security interest, encumbrance, lien or charge of any kind whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any agreement to grant a security interest at a future date, any
lease in the nature of security, the filing of, or agreement to give, any
financing statement under the UCC or other similar law of any jurisdiction, and
21
with respect to any equity interest or other security, any purchase option, call
or similar right of a third party with respect to such equity interest or other
security).
"Loans" shall mean the New Term Loans.
"Loan Documents" shall mean this Credit Agreement, any New Term Note,
the Security Agreement, the Pledge Agreement, the Blocked Account Agreements,
any Patent Trademark or Copyright Security Agreement, UCC financing statements,
the Contribution Agreement, the Fee Letter, the Intercreditor Agreement, any
Instrument of Assumption and Joinder, and any other document, agreement,
certificate or instrument which is required to be or is otherwise executed in
connection with, or pursuant to, this Credit Agreement or any of the documents
listed above, and any agreement or instrument which is required to be or is
otherwise executed after the Effective Date in connection with, or pursuant to,
this Credit Agreement or any of the documents listed above.
"Loan Party" shall mean the Borrower, or any Guarantor, as
applicable, and "Loan Parties" shall mean collectively, the Borrower and the
Guarantors hereunder.
"Margin Stock" shall be as defined in Regulation U of the Board.
"Material Adverse Effect" shall mean any event, development,
condition or circumstance that (a) has a material adverse effect on the
business, assets, properties, performance, operations, condition (financial or
otherwise) or prospects of Borrower and its Consolidated Subsidiaries taken as a
whole, of the Loan Parties taken as a whole, or of the Borrower, (b) materially
impairs the ability of the Borrower or any other Loan Party to pay any of its
respective Obligations, or to perform any of its material Obligations, under any
Loan Document to which it is or will be a party, (c) materially and adversely
affects any of the rights or remedies of, or benefits available to, the
Administrative Agent, the Collateral Agent, the New Term Lenders or any other
Secured Party, under any Loan Document, or (d) materially and adversely affects
the Liens granted to the Collateral Agent (for the benefit of itself and the New
Term Lenders) or materially impairs the validity or enforceability thereof;
provided, however, that any event, development, condition or circumstance will
be deemed to have a "Material Adverse Effect" if such event, development,
condition or circumstance when taken together with all other events,
developments, conditions and circumstances occurring or in existence at such
time (including all other events, developments, conditions and circumstances
which, but for the fact that a representation, warranty or covenant is subject
to a "Material Adverse Effect" exception, would cause such representation or
warranty contained herein to be untrue or such covenant to be breached) would
result in a "Material Adverse Effect", even though, individually, such event,
development, condition or circumstances would not do so.
"Material Agreement" shall mean (a) any agreement entered into by the
Borrower and its Subsidiaries on a consolidated basis that evidences, governs or
secures Material Indebtedness of the Borrower and its Subsidiaries on a
consolidated basis, and (b) any other agreement entered into by the Borrower and
its Subsidiaries on a consolidated basis that (i) evidences a firm revenue
commitment to make payments to the Borrower and its Subsidiaries on a
consolidated basis in excess of $1,000,000 during any Fiscal Year of the
Borrower and its Consolidated Subsidiaries prior to the Maturity Date, (ii) the
22
breach or termination of which by the Borrower and its Subsidiaries on a
consolidated basis could reasonably be expected to result in liabilities or
obligations of, or damages payable by, the Borrower and its Subsidiaries on a
consolidated basis in excess of $3,000,000 during any Fiscal Year of the
Borrower and its Subsidiaries on a consolidated basis prior to the Maturity
Date, or (iii) the breach or termination of which could reasonably be expected
to result in a Material Adverse Effect.
"Material Agreements Schedule" shall have the meaning set forth in
Section 5.13(a)(i) hereof.
"Material Indebtedness" shall mean any Indebtedness (other than the
New Term Loans or the Revolving Loan) of any one or more of the Loan Parties
and/or Subsidiaries of a Loan Party in a principal amount exceeding $1,000,000.
"Maturity Date" shall mean the date which is the fifth anniversary of
the Effective Date or such earlier date on which the New Term Loans shall become
due and payable in accordance with the terms hereof.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or if such
company shall cease to issue ratings, another nationally recognized statistical
rating company selected in good faith by mutual agreement of the Administrative
Agent and the Borrower.
"Mortgage" shall mean any mortgage, deed of trust, deed to secure
debt or such equivalent document now existing or hereafter entered into that is
executed and delivered by any one or more of the Loan Parties to the Collateral
Agent (for the benefit of itself and the New Term Lenders) and in each case, as
such document may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
"MSB Account" shall have the meaning set forth in Schedule 2.15
hereto.
"Multiemployer Plan" shall mean a plan described in Section
4001(a)(3) of ERISA to which any Loan Party or ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the five
preceding plan years, made or accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean (a) the aggregate cash proceeds
received by the Borrower and its Consolidated Subsidiaries (including, without
limitation, as applicable, all cash proceeds received by way of (i) deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, (ii) any cash received in respect of any non-cash
proceeds, but only as and when received, (iii) receivables retained by the
Borrower and its Consolidated Subsidiaries as part of any sales consideration
and (iv) any tax refunds received by the Borrower and its Consolidated
Subsidiaries), minus (b) reasonable and customary brokerage commissions,
underwriting discounts and other reasonable and customary fees and direct
expenses (including reasonable and customary fees and expenses of counsel,
accountants, financial advisors and investment bankers actually paid by the
applicable Borrower and its Consolidated Subsidiaries) paid by the Borrower and
its Consolidated Subsidiaries to third parties (other than Affiliates who are
not New Term Lenders as of the Effective Date) related to such transaction,
minus (c) to the extent applicable, with respect to any sale or other
disposition of assets permitted hereunder, payments made to retire Indebtedness
23
(other than the New Term Loans) secured by a Lien on any assets being sold or
otherwise disposed of where payment of such Indebtedness is required in
connection with such sale or disposition, minus (d) any income, franchise,
transfer or other tax liability of the Borrower and its Consolidated
Subsidiaries arising from the applicable transaction; provided, that such taxes
are payable in cash in the current year or in the next succeeding year with
respect to the current year as a direct result of the applicable transaction,
and minus (e) to the extent applicable, with respect to any sale or other
disposition of assets permitted hereunder, reasonable reserves for customary
indemnity obligations and purchase price adjustments.
"New Common Stock" shall have the meaning set forth in Section 4.1(g)
hereof.
"New Senior Indebtedness" shall mean at any time the sum of the
aggregate outstanding Indebtedness of the Borrower, the Guarantors and their
respective Subsidiaries (i) under this Credit Agreement, (ii) under the New
Working Capital Facility, and (iii) under Capital Leases.
"New Series A Warrant Agreement" shall mean the warrant agreement
governing the issuance and exercise of the New Series A Warrants.
"New Series A Warrants" shall mean the warrants to purchase 1,157,000
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series A Warrant Agreement, which warrants shall expire
on the first anniversary of the Effective Date, and which shall be exercisable
for a payment to the Borrower of $13.85 in cash per share of New Common Stock.
"New Series B Warrant Agreement" shall mean the warrant agreement
governing the issuance and exercise of the New Series B Warrants.
"New Series B Warrants" shall mean the warrants to purchase 700,000
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series B Warrant Agreement, which warrants shall expire
on the third anniversary of the Effective Date, and which shall be exercisable
for a payment to the Borrower of $20.78 in cash per share of New Common Stock.
"New Series C Warrant Agreement" shall mean the warrant agreement
governing the issuance and exercise of the New Series C Warrants.
"New Series C Warrants" shall mean the warrants to purchase 271,429
shares of New Common Stock to be issued pursuant to, and exercisable in
accordance with, the New Series C Warrant Agreement, which warrants shall expire
on the third anniversary of the Effective Date, and which shall be exercisable
for a payment to the Borrower of $27.70 in cash per share of New Common Stock.
"New Term Lender" and "New Term Lenders" shall have the meaning given
to such term in the introductory paragraph hereof.
"New Term Loan" shall have the meaning given to such term in Section
2.1(a) hereof.
24
"New Term Note" shall mean, with respect to each New Term Lender,
that certain New Term Note, substantially in the form of Exhibit A hereto, made
by the Borrower to each such New Term Lender.
"New Warrant Agreements" shall mean the New Series A Warrant
Agreement, the New Series B Warrant Agreement and the New Series C Warrant
Agreement.
"New Warrants" shall mean the New Series A Warrants, the New Series B
Warrants and the New Series C Warrants.
"New Working Capital Facility" shall mean the working capital loan
facility provided to the New Working Capital Facility Borrower by General
Electric Capital Corporation pursuant to that certain credit agreement dated as
of the date hereof and all other agreements, documents, instruments or
certificates which are executed and delivered in connection therewith or
pursuant thereto from time to time including any agreement, document or
instrument evidencing a refinancing or refunding thereof.
"New Working Capital Facility Agent" shall mean General Electric
Capital Corporation ("GECC") in its capacity as agent for the Lenders under the
New Working Capital Facility or its successor appointed pursuant to the New
Working Capital Facility Agreement.
"New Working Capital Facility Agreement" shall mean that certain
credit agreement, dated as of the date hereof, by and among Thermadyne
Industries, Inc., Thermal Dynamics Corporation, TWECO Products, Inc., Xxxxxx
Equipment Company, C&G Systems, Inc., Stoody Company, Thermal Arc, Inc.,
Thermadyne International Corporation, ProTip Corporation (collectively, the "New
Working Capital Facility Borrower"), the New Working Capital Facility Agent, the
other credit parties thereto from time to time and the lenders party thereto
from time to time.
"New Working Capital Facility Borrower" shall have the meaning given
to such term in the definition of New Working Capital Facility Agreement in this
Article 1.
"New Working Capital Facility Lenders" shall mean the lenders party
to the New Working Capital Facility Agreement from time to time.
"New Working Capital Facility Loan" shall mean the loans made from
time to time by the New Working Capital Facility Lenders under the New Working
Capital Facility Agreement.
"Obligations" shall mean all loans, advances, debts, liabilities and
obligations for the performance of covenants, tasks or duties or for payment of
monetary amounts (whether or not such performance is then required or
contingent, or such amounts are liquidated or determinable) owing by any Loan
Party to the Administrative Agent, the Collateral Agent or any New Term Lender,
and all covenants and duties regarding such amounts, of any kind or nature,
present or future, whether or not evidenced by any note, agreement, letter of
credit agreement or other instrument, arising under the Credit Agreement or any
of the other Loan Documents. This term includes all principal, interest
(including all interest that accrues after the commencement of any case or
proceeding by or against any Loan Party in bankruptcy, whether or not allowed in
such case or proceeding), Fees, hedging obligations under swaps, caps and collar
25
arrangements provided by any Lender, expenses, attorneys' fees and any other sum
chargeable to any Loan Party of its Subsidiaries under the Agreement or any of
the other Loan Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Patent License" shall mean rights under any written agreement now
owned or hereafter acquired by the Borrower or any of its Consolidated
Subsidiaries granting any right with respect to any invention that is claimed in
an existing Patent.
"Patent Security Agreement" shall mean those certain Patent Security
Agreements, substantially in the form of Exhibit C to the Security Agreement
made by each applicable Loan Party in favor of the Collateral Agent, for the
benefit of itself and the New Term Lenders, as such agreement may be amended,
amended and restated, supplemented or otherwise modified, renewed or replaced
from time to time.
"Patents" shall mean all of the following in which the Borrower or
any of its Consolidated Subsidiaries now holds or hereafter acquires any
interest: (a) all letters patent of the United States or of any other country,
all registrations and recordings thereof, and all applications for letters
patent of the United States or of any other country, including registrations,
recordings and applications in the United States Patent and Trademark Office or
in any similar office or agency of the United States or any other country, and
(b) all reissues, continuations, continuations-in-part or extensions thereof.
"Permitted Encumbrances" shall mean Liens permitted under Section 6.2
hereof.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability partnership, limited liability
company, trust, joint venture, association, company, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan" shall mean an employee pension benefit plan within the meaning
of Section 3(2) of ERISA, other than a Multiemployer Plan, maintained or
contributed to by any Loan Party or any ERISA Affiliate, or otherwise pursuant
to which any Loan Party could have liability.
"Plan of Reorganization" shall have the meaning given to such term in
the Introductory Statement hereof.
"Pledge Agreement" shall mean that certain Pledge Agreement,
substantially in the form of Exhibit E-2 hereto, among the Borrower, the
Guarantors and the Collateral Agent (for the benefit of itself and the New Term
Lenders) as such agreement may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time.
"Pledged Shares" shall have the meaning given to such term in the
Pledge Agreement.
"Pledgors" shall mean any Loan Party that has any right, title or
interest in and to any Pledged Shares.
26
"Post-Petition Interest" shall mean interest accruing after the
filing of any petition in bankruptcy, or the commencement of any case,
proceeding or action relating to the bankruptcy, reorganization or insolvency of
the Borrower or any other Loan Party (or interest that would accrue but for the
operation of applicable bankruptcy, reorganization or insolvency laws), whether
or not a claim for post-filing or post-petition interest is allowed or allowable
as a claim in any such case, proceeding or action.
"Premises" shall mean any real property currently or formerly owned,
leased or operated by any Loan Party or any Subsidiary of any Loan Party,
including, but not limited to, all soil, surface water, or groundwater thereat.
"Pre-Petition Borrowers" shall mean Thermadyne Mfg. LLC, Comwell Pty.
Ltd., Genset 5 P.A. and Thermadyne Welding Products Canada Limited.
"Pre-Petition Credit Agreement" shall mean that certain Credit
Agreement dated as of May 22, 1998, as amended, among the Pre-Petition
Borrowers, the Pre-Petition Senior Lenders, ABN AMRO Bank N.V., as
Administrative Agent, Credit Suisse First Boston, as Syndication Agent, Societe
Generale, as Documentation Agent.
"Pre-Petition Letters of Credit" shall mean the letters of credit
issued by certain of the Pre-Petition Lenders for the account of the
Pre-Petition Borrowers pursuant to the Pre-Petition Credit Agreement and
outstanding as of the Filing Date in the face amount of $8,380,973.11.
"Pre-Petition Lenders" shall mean the Lenders party from time to time
to the Pre-Petition Credit Agreement.
"Pre-Petition Senior Lenders" shall mean the senior secured lenders
party from time to time to the Pre-Petition Credit Agreement.
"Pre-Petition Senior Loans" shall mean the revolving credit loans and
term loans made from time to time by the Pre-Petition Senior Lenders pursuant to
the Pre-Petition Credit Agreement.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase & Co. as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Projections" shall mean the projections of the Borrower and its
Consolidated Subsidiaries as described in Section 3.6(e) hereof.
"Proprietary Rights" shall have the meaning given to such term in
Section 3.8 hereof.
"Purchasing Lender" shall have the meaning given to such term in
Section 2.10(e).
"Qualified Plan" shall mean a Plan that is intended to tax-qualified
under Section 401(a) of the Code.
27
"Real Property Assets" shall mean as of any time, (i) all parcels of
real property, owned or leased at such time directly or indirectly by any Loan
Party or any Subsidiary of a Loan Party, together with in each case, all
buildings, improvements, appurtenant fixtures and equipment, easements and other
property and rights incidental to the ownership or lease (as applicable) of such
parcel of real property or any of the foregoing and (ii) all Rights of Way.
"Recovery Event" shall mean (a) the receipt of any Condemnation
Proceeds in excess, for any single event, of $1,000,000, or (b) the receipt of
proceeds of any insurance (other than business interruption insurance) required
to be maintained pursuant to this Credit Agreement or any other Loan Document on
account of each separate loss, damage or injury in excess of $1,000,000 to any
tangible property of any Loan Party and any Subsidiary of a Loan Party.
"Register" shall have the meaning given to such term in Section
10.3(e).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Rejection Period" shall have the meaning set forth in Section 5.4(b)
hereof.
"Related Fund" shall mean, with respect to any New Term Lender that
is a fund that invests in the type of credit extended hereunder, any other fund
that (i) invests in such type of credit, (ii) is advised or managed by the same
investment advisor (or an Affiliate of such investment advisor) as such New Term
Lender, and (iii) has been advised or managed by such same investment advisor
for a period of not less than 120 days immediately prior to the proposed
assignment to such fund hereunder.
"Related Parties" shall mean, with respect to any Person, such
Person's Affiliates and the respective directors, officers, employees,
representatives, trustees, agents, advisors (including, without limitation,
investment advisors) of, and any professionals retained by, such Person or such
Person's Affiliates (excluding Xxxxxxxx Chance US LLP and CCV Restructuring,
LLC).
"Related Transactions" shall mean the issuance of the New Term Notes,
the repayment in full of the DIP Facility on the Effective Date, the initial
borrowing under the New Working Capital Facility, the payment of all fees, costs
and expenses associated with all of the foregoing and the execution and delivery
of all of the documents in connection with or related to all of the foregoing.
"Relationship Bank" shall have the meaning set forth in Schedule 2.15
hereof.
28
"Release" shall mean any discharging, disposing, emitting, leaking,
pumping, pouring, emptying, injecting, escaping, leaching, dumping or spilling
of any Hazardous Material, through, or, above, under or into the Environment.
"Reorganized Debtors" shall mean, on and after the Effective Date,
each of the Loan Parties other than Thermadyne Receivables, Inc.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA.
"Required Lenders" shall mean at any time, those New Term Lenders
whose pro rata share of the aggregate principal amount of the New Term Loan
outstanding constitutes more than fifty percent (50%) of the aggregate principal
amount of the New Term Loans at such time.
"Requirements" shall mean all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, injunctions, directives, rules,
regulations and requirements of every Governmental Authority having jurisdiction
over any Real Property Asset and all restrictive covenants applicable to any
Real Property Asset.
"Restricted Payment" shall mean with respect to any Loan Party or any
Subsidiary of a Loan Party (a) the declaration or payment of any dividend or the
incurrence of any liability to make any other payment or distribution of cash or
other property or assets in respect of Equity Interests; (b) any payment on
account of the purchase, redemption, defeasance, sinking fund or other
retirement of such Loan Party's or any such Subsidiary's Equity Interests or any
other payment or distribution made in respect thereof, either directly or
indirectly; (c) any payment or prepayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim
or rescission with respect to, any Indebtedness subordinated to any of the
Obligations; (d) any payment made to redeem, purchase, repurchase or retire, or
to obtain the surrender of, any outstanding warrants, options or other rights to
acquire Equity Interests of such Loan Party or any such Subsidiary of such Loan
Party now or hereafter outstanding; (e) any payment of a claim for the
rescission of the purchase or sale of, or for any material damages arising from
the purchase or sale of, any shares of such Loan Party's or any such
Subsidiary's Equity Interests or of a claim for reimbursement, indemnification
or contribution arising out of or related to such claim for damages or
rescission; (f) any payment, loan, contribution, or other transfer of funds or
other property to any holder of Equity Interests of such Loan Party or any such
Subsidiary of such Loan Party other than payment of compensation in the ordinary
course of business to holders who are employees of such Person; and (g) any
payment of management fees by such Loan Party or any such Subsidiary of such
Loan Party to any holder of Equity Interests of such Loan Party or any such
Subsidiary.
"Retiree Welfare Plan" shall mean, at any time, a Plan that is a
welfare plan (within the meaning of Section 3(1) of ERISA) and that provides for
continuing coverage or benefits for any participant or any beneficiary of a
participant after the last day of the calendar month following such
participant's termination of employment, other than continuation coverage
provided pursuant to Section 4980B of the Code or other similar state law and at
the sole expense of the participant or the beneficiary of the participant.
29
"Revolving Loan" shall mean at any time the sum of (i) the aggregate
amount of loans outstanding to the New Working Capital Facility Borrower under
the New Working Capital Facility Agreement plus (ii) the aggregate letter of
credit obligations incurred by the New Working Capital Facility Agent and the
New Working Capital Facility Lenders on behalf of the New Working Capital
Facility Borrower pursuant to the New Working Capital Facility Agreement.
"Rights of Way" shall mean all rights of way, easements and all other
similar rights granted to any of the Credit Parties (excluding leases) for the
right to use and/or have access to and through real property that are or should
be evidenced by instruments recorded in the appropriate real property records
office of each of the counties where such real property is located.
"S&P" shall mean Standard & Poor's Ratings Group (a division of The
XxXxxx-Xxxx Companies, Inc.), together with its successors, or, if such company
shall cease to issue ratings, another nationally recognized statistical rating
company selected in good faith by mutual agreement of the Administrative Agent
and the Borrower.
"Sale Leaseback Transaction" shall mean any arrangement with any
Person or Persons, whereby in contemporaneous or substantially contemporaneous
transactions a Loan Party or a Subsidiary of a Loan Party sells essentially all
of its right, title and interest in an asset and, in connection therewith,
acquires, leases or licenses back the right to use all or a portion of such
asset.
"Secured Parties" shall mean the Collateral Agent, the New Term
Lenders and each of their respective successors and assigns.
"Security Agreements" shall mean those certain Security Agreements
substantially in the form of Exhibit E-1 hereto, among the Borrower and the
Collateral Agent for the benefit of itself and the New Term Lenders, as such
agreement may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
"Securities Account" shall mean all "securities accounts" as such
term is defined in Section 8-501(a) of the UCC, now or hereafter held in the
name of the Borrower, any Loan Party or any beneficiary thereof.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement, the Patent Security Agreement, the Trademark Security Agreement, the
Copyright Security Agreement and all similar agreements entered into
guaranteeing payment of, or granting a Lien upon property as security for
payment of, the Obligations.
"Solvent" and "Solvency" shall mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is not engaged
30
in business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Stock" shall mean all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited liability company
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934).
"Stockholder" shall mean, with respect to any Person, each holder of
Stock of such Person.
"Subsidiary" shall mean with respect to any Person, any corporation,
limited liability company, association, joint venture, partnership or other
business entity (whether now existing or hereafter organized) (a) of which at
least a majority of the voting stock or other ownership interests having
ordinary voting power for the election of directors (or the equivalent) is, at
the time as of which any determination is being made, owned or Controlled,
directly or indirectly, by such Person or one or more subsidiaries of such
Person, or by such Person and one or more subsidiaries of such Person, or (b)
which is otherwise Controlled, directly or indirectly, at the time as of which
any determination is being made, by such Person or one or more subsidiaries of
such Person, or by such Person and one or more subsidiaries of such Person, or
(c) which would be consolidated with such Person in such Person's financial
statements if such financial statements were prepared in accordance with GAAP as
of the date any determination is being made.
"Subordinated Debt" shall mean any Indebtedness of any Borrower or
any other Loan Party subordinated to the Obligations in a manner and form
satisfactory to the Required Lenders in their sole discretion, as to right and
time of payment and as to any other rights and remedies thereunder.
"Taxes" shall mean taxes, levies, imposts, deductions, charges or
withholdings imposed by any Governmental Authority, and all liabilities,
interest, penalties, or additions to tax with respect thereto, whether disputed
or not.
"Trademark Security Agreement" shall mean that certain Trademark
Security Agreement, substantially in the form of Exhibit D to the Security
Agreement made by each applicable Loan Party in favor of the Collateral Agent
for the benefit of itself and the New Term Lenders, as such agreement may be
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time.
"Trademark License" shall mean rights under any written agreement now
owned or hereafter acquired by the Borrower or any of its Consolidated
Subsidiaries granting any right to use any Trademark.
31
"Trademarks" shall mean all of the following now owned or hereafter
existing or adopted or acquired by the Borrower or any of its Consolidated
Subsidiaries: (a) all trademarks, trade names, corporate names, business names,
trade styles, trade dress, service marks, logos, and other source or business
identifiers (whether registered or unregistered), all registrations and
recordings thereof, and all applications in connection therewith, including
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
state or territory thereof, or any other country or any political subdivision
thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill
associated with or symbolized by any of the foregoing.
"Transaction" shall have the meaning set forth in Section 10.17
hereof.
"Tweco Mexico" shall have the meaning set forth in Section 5.12(b)
hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York at the relevant time; provided that to the extent that the UCC
is used to define any term herein or in any Loan Document and such term is
defined differently in different Articles or Divisions of the Code, the
definition of such term contained in Article or Division 9 shall govern;
provided further, that in the event that, by reason of mandatory provisions of
law, any or all of the attachment, perfection or priority of, or remedies with
respect to, Collateral Agent's Lien on any Collateral is governed by the Uniform
Commercial Code as enacted and in effect in a jurisdiction other than the State
of New York, "UCC" shall mean the Uniform Commercial Code as enacted and in
effect in such other jurisdiction solely for purposes of the provisions thereof
relating to such attachment, perfection, priority or remedies and for purposes
of definitions related to such provisions.
"Unfunded Pension Liability" shall mean, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, all determined as of the most recent valuation date for each such
Title IV Plan using the actuarial assumptions for funding purposes in effect
under such Title IV Plan, and (b) for a period of five (5) years following a
transaction which might reasonably be expected to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by any
Loan Party or any ERISA Affiliate as a result of such transaction.
"Xxxxxx Mexico" shall have the meaning set forth in Section 5.12 (b)
hereof.
ARTICLE 2
THE NEW TERM LOANS
Section 2.1. New Term Loans.
(a) Subject to the terms and conditions and relying upon the
representations, warranties and covenants set forth herein, each of the parties
agrees that, as of the Effective Date, pursuant to the Confirmation Order, the
Pre-Petition Senior Lenders signatories hereto (each such Pre-Petition Senior
Lenders, after the Effective Date being hereinafter referred to as a "New Term
Lender" and, collectively, as the "New Term Lenders") are entitled to receive an
32
account of their claims in the Cases, inter alia, their pro-rata share of loans
in the aggregate amount of One Hundred Eighty Million Dollars ($180,000,000) on
the terms and conditions contained herein (the "New Term Loans"). Each New Term
Loan shall be in such amount as is set forth opposite such New Term Lender's
name on Schedule 2.1(a) annexed hereto.
(b) On the Effective Date, the Borrower shall issue to each of the
New Term Lenders a New Term Note in such amount as is set forth opposite the
name of such New Term Lender on Schedule 2.1(a) hereto.
Section 2.2. Interest Rate Type of the New Term Loans. Each New Term
Loan shall either be a Eurodollar Loan or a Base Rate Loan (as such Loan may be
continued or shall be converted pursuant to the provisions of Section 2.8 and
2.11 hereof, respectively). Subject to Sections 2.10(d) and 2.12(g) hereof, each
New Term Lender may at its option fulfill its obligations hereunder to fund any
Eurodollar Loan by causing its foreign branch or Affiliate to make such Loan;
provided, that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms hereof and of any
note evidencing such Loan. In addition, each New Term Lender that opts to
fulfill its obligations hereunder to fund any Eurodollar Loan by causing its
Affiliate to make such a Loan (i) shall keep a register, meeting the
requirements of Treasury Regulation section 5f.103-1(c), of each Affiliate which
has funded all or any part of any Eurodollar Loan that such New Term Lender
would have otherwise been obligated to make to the Borrower pursuant to this
Agreement, specifying such Affiliate's entitlement to payments of principal and
interest with respect to such Eurodollar Loan and (ii) shall collect, prior to
the time such Affiliate receives payments with respect to such funded Eurodollar
Loan, from each Affiliate the appropriate forms and statements described in
Section 2.12(a) (and updated as required by Section 2.12(a) as if such Affiliate
were a New Term Lender under Section 2.12(a).
Section 2.3. Repayment of New Term Loans; Evidence of Debt. (a) The
principal amount of the New Term Loans shall be payable in Dollars, in
immediately available funds in the aggregate principal amounts and on the dates
set forth below (subject to acceleration as provided in Article 7 hereof; and
subject to adjustment for the application of prepayments (if any) of the New
Term Loans made pursuant to Section 2.6 hereof, as provided in such Section
2.6):
33
DATE INSTALLMENT OF PRINCIPAL IS DUE AMOUNT OF PRINCIPAL PAYMENT
------------------------------------ ---------------------------
June 30, 2004 $2,500,000
September 30, 2004 2,500,000
December 31, 2004 2,500,000
March 31, 2005 2,500,000
June 30, 2005 5,000,000
September 30, 2005 5,000,000
December 31, 2005 5,000,000
March 31, 2006 5,000,000
June 30, 2006 7,500,000
September 30, 2006 7,500,000
December 31, 2006 7,500,000
March 31, 2007 7,500,000
June 30, 2007 10,000,000
September 30, 2007 10,000,000
December 31, 2007 10,000,000
March 31, 2008 Entire unpaid balance
The New Term Loans shall be subject to mandatory prepayment as
provided in Section 2.6 hereof. The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of the New Term Lenders holding
the New Term Loans (i) the amortization payments provided for above on the dates
when due, plus accrued interest and all other unpaid amounts then owing in
respect of the New Term Loans and (ii) on the Maturity Date, the then aggregate
unpaid principal amount of all New Term Loans plus accrued interest and all
other unpaid amounts then owing in respect of the New Term Loans. The New Term
Loans shall be permanently reduced by the amount of each principal payment on
the date such principal payment is made hereunder. No payment on any New Term
Loan shall be reborrowed once repaid.
(b) All repayments of New Term Loans under this Section 2.3 shall, as
regards Interest Rate Type, be applied first to Base Rate Loans, and then to
Eurodollar Loans in the order of the scheduled expiry of Interest Periods with
respect thereto (i.e., those Eurodollar Loans with Interest Periods which end
sooner would be paid before those with Interest Periods which end later.)
(c) All repayments of New Term Loans shall be accompanied by accrued
interest (to the date of repayment) on the amount being repaid.
(d) All amounts received by the Administrative Agent from or on
behalf of the Borrower as a payment of principal of, or interest on, the New
Term Loans shall be applied among the New Term Lenders holding the New Term
Loans on a pro rata basis in accordance with the outstanding New Term Loans then
owed to each such New Term Lender at the time of such payment.
34
(e) Each New Term Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrower to
such New Term Lender resulting from the New Term Loans made by such New Term
Lender, including, without limitation, the amounts of principal and interest
payable and paid to such New Term Lender from time to time hereunder.
(f) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(e) and accounts therein in which it shall record (i) the amount of
each outstanding Loan hereunder, the Interest Rate Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each New Term Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the New Term Lenders and each New Term Lender's pro
rata share thereof.
(g) The entries made in the accounts maintained pursuant to paragraph
(e) or (f) of this Section 2.3 shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided, however, that the
failure of any New Term Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the New Term Loans and other Obligations hereunder in
accordance with the terms of this Credit Agreement.
Section 2.4. Interest. (a) Subject to Section 2.7 hereof, in the case
of any Base Rate Loan, interest shall be payable at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of 365/366 days,
as the case may be, during such times as the Base Rate is based upon the "prime
rate", and over a year of 360 days at all other times) equal to the Base Rate
plus the Applicable Interest Margin for Base Rate Loans. Interest shall be
payable in arrears on each Base Rate Loan on each Interest Payment Date, and on
the Maturity Date; provided, that (i) interest accrued pursuant to Section
2.7(a) shall be payable on demand, and (ii) in the event of any repayment or
prepayment of any principal amount outstanding under the New Term Loan, accrued
interest on the principal amount being repaid or prepaid shall be payable on the
date of such repayment or prepayment. The Administrative Agent shall determine
the Base Rate applicable to the Base Rate Loans hereunder and such determination
shall be conclusive absent manifest error.
(b) Subject to Section 2.7 hereof, in the case of a Eurodollar Loan,
interest shall be payable at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the LIBO Rate
plus the Applicable Interest Margin for Eurodollar Loans. Interest shall be
payable on each Eurodollar Loan on each Payment Date (regardless of the
applicable Interest Period), and on the Maturity Date; provided, that (i)
interest accrued pursuant to Section 2.7(a) shall be payable on demand, (ii)
subject to the provisions hereof, including without limitation, Section 2.9, in
the event of any repayment or prepayment of any Eurodollar Loan, accrued
interest on the principal amount being repaid or prepaid shall be payable on the
date of such repayment or prepayment, and (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the Interest Period therefor pursuant
to the terms hereof, accrued interest on such Eurodollar Loan shall be payable
on the effective date of such conversion. The Administrative Agent shall
35
determine the applicable LIBO Rate for each Interest Period as soon as
practicable on the date when such determination is to be made in respect of such
Interest Period; and such determination shall be conclusive absent manifest
error.
(c) Interest in respect of any Loan hereunder shall accrue from and
including the date of such Loan, to but excluding, the date on which such Loan
is paid or, if applicable, converted to a Loan of a different Interest Rate Type
pursuant to the terms hereof.
(d) Anything in this Credit Agreement or in any note evidencing any
Loan hereunder to the contrary notwithstanding, the interest rate on the New
Term Loans shall in no event be in excess of the maximum rate permitted by
Applicable Law.
Section 2.5. Fees. (a) The Borrower agrees to pay any and all fees to
the Administrative Agent as and when such fees become due and payable under and
pursuant to the Fee Letter.
(b) All fees payable hereunder or under the Fee Letter shall be paid
on the dates due, in Dollars, in immediately available funds. Fees paid shall
not be refundable under any circumstances.
Section 2.6. Prepayments. (a) Subject to the terms of Section 2.9
hereof, the Borrower shall have the right at its option at any time and from
time to time to prepay (i) any Base Rate Loan, in whole or in part, upon at
least one (1) Business Day's prior written, facsimile, or telephonic (provided
that any such telephonic notice is immediately confirmed in writing) notice to
the Administrative Agent received not later than 11 a.m., New York time) on such
day, in the principal amount of $3,000,000 or such greater amount which is an
integral multiple of $1,000,000 if prepaid in part and (ii) any Eurodollar Loan,
in whole or in part, upon at least three (3) Business Days' prior written,
facsimile, or telephonic (provided that any such telephonic notice is
immediately confirmed in writing) notice received not later than 11 a.m., New
York time) on such day, in the principal amount of $3,000,000 or such greater
amount which is an integral multiple of $1,000,000 if prepaid in part. Each
notice of prepayment shall specify the prepayment date, the New Term Loan to be
prepaid and the principal amount thereof, shall be irrevocable and shall commit
the Borrower to prepay each such Loan in the amount and on the date stated
therein. Any prepayment of the New Term Loans by the Borrower pursuant to this
Section 2.6 shall be applied to prepayment of the principal of the New Term
Loans in the inverse order of maturity.
(b) Following the end of each Fiscal Year of the Borrower (commencing
with the Fiscal Year ending December 31, 2004), the Borrower shall prepay the
New Term Loans in an amount equal to 50% of the Excess Cash Flow in excess of
$3,000,000 for such Fiscal Year. Each prepayment pursuant to this Section 2.6(b)
shall be made on or before the date on which Financial Statements are required
to be delivered pursuant to Section 5.1(a) with respect to the Fiscal Year for
which Excess Cash Flow is being calculated (and in any event no later than one
hundred five (105) days after the end of such Fiscal Year). Prior to the making
of each prepayment pursuant to this Section 2.6(b), the Borrower shall deliver
to the Administrative Agent and each New Term Lender, an Excess Cash Flow
Certificate, in accordance with Section 5.1(g) hereof, signed by a Financial
Officer of the Borrower setting forth in reasonable detail the calculation of
Excess Cash Flow for the applicable Fiscal Year.
36
(c) Subject to the terms of the Intercreditor Agreement, no later
than one (1) Business Day after the receipt of any Net Cash Proceeds by, on
behalf of, or at the direction of any Loan Party or any Subsidiary of any Loan
Party from any of the following: (i) any exercise by any of the holders of any
of the New Warrants, (ii) any refinancing of all or any portion of the
outstanding New Term Loans hereunder, (iii) any issuance by any Loan Party of
any Indebtedness (other than Indebtedness permitted under Section 6.1 hereof),
(iv) any Sale Leaseback Transaction, other than a Sale Leaseback Transaction
permitted by Section 6.8 hereof, or (v) any sale or other disposition of any
asset of a Loan Party permitted by Section 6.7(g) and in accordance with and
subject to Section 6.7(g), the Borrower shall prepay the New Term Loans in an
amount equal to 100% of such Net Cash Proceeds; provided, that the acceptance by
the Administrative Agent or any New Term Lender of any prepayment by the
Borrower on account of the occurrence of any of the transactions or events set
forth in this Section 2.6(c) that shall also constitute an Event of Default
hereunder shall not constitute a waiver by the Administrative Agent or any such
New Term Lender of the rights and remedies that it would otherwise have under
this Credit Agreement or at law as a result of the occurrence and during the
continuance of such Event of Default.
(d) Subject to the terms of the Intercreditor Agreement, not later
than two (2) Business Days following the receipt by, on behalf of or at the
direction of, the Borrower or any other Loan Party (or by the Collateral Agent
as loss payee), of any payment of Net Cash Proceeds of any Recovery Event (other
than Net Cash Proceeds which constitute Condemnation Proceeds or proceeds of any
insurance with respect to any of the Collateral) (provided, that so long as no
Default or Event of Default shall have occurred and then be continuing such Net
Cash Proceeds received in connection with any Recovery Event (or any portion
thereof) may be expended or irrevocably committed by the Borrower or any other
Loan Party to repair or replace the property which was the subject of such
Recovery Event as promptly as practicable but in any event within 180 days of
such loss, damage or injury, except that in the event that any such property
shall constitute a Real Property Asset, the Borrower or any other such Loan
Party may repair or replace such Real Property Asset within 12 months of such
loss, damage or injury, and, in any case of the proposed repair or replacement
of any such property, the Borrower shall furnish to the Administrative Agent
evidence satisfactory to the Administrative Agent and shall have certified to
the Administrative Agent that such proceeds (or such proceeds together with
other funds which are available to the Borrower and permitted to be used for
such purpose pursuant to the terms hereof) are sufficient to repair or replace
such property (pending which the Administrative Agent shall hold such proceeds),
the Borrower shall prepay or, to the extent the Administrative Agent is loss
payee under any insurance policy (if applicable), irrevocably direct the
Administrative Agent to apply as a prepayment, an amount equal to 100% (or such
lesser percentage which represents the remaining portion of such Net Cash
Proceeds not expended or committed pursuant to the first parenthetical phrase
hereof) of such Net Cash Proceeds; provided, however, that with respect to
tangible property subject to any Permitted Encumbrance, no such prepayment shall
be required to the extent that this Section 2.6(d) would require an application
of proceeds of any Recovery Event that would violate or breach any of the
provisions of the instruments or documents under which such Permitted
Encumbrance arises or which governs the application of proceeds.
(e) Concurrently with the making of any prepayment pursuant to
Section 2.6(b), 2.6(c) or 2.6(d), the Borrower shall deliver to the
37
Administrative Agent, a certificate signed by a Financial Officer of the
Borrower setting forth a reasonably detailed calculation of the amount of such
prepayment.
(f) All prepayments of New Term Loans under this Section 2.6 shall,
as regards Interest Rate Type, be applied first to Base Rate Loans then to
Eurodollar Loans in the order of the scheduled expiry of Interest Periods with
respect thereto (i.e. those Eurodollar Loans with Interest Periods which end
sooner would be paid before those with Interest Periods which end later).
(g) All prepayments under this Section 2.6 shall be accompanied by
accrued but unpaid interest on the principal amount being prepaid to (but not
including) the date of prepayment.
(h) Notwithstanding the terms of this Section 2.6, if at any time the
mandatory prepayment of any New Term Loan would result, after giving effect to
the prepayment and other procedures set forth in this Section 2.6 and Section
2.9 of this Credit Agreement, in the Borrower incurring costs as a result of
Eurodollar Loans ("Affected Eurodollar Loans") being prepaid other than on the
last day of an Interest Period applicable thereto, which costs are required to
be paid hereunder, then the Borrower may, in its sole discretion, deposit
amounts that otherwise would have been paid in respect of the Affected
Eurodollar Loans with the Administrative Agent (which amount must be equal in
amount to the amount of the Affected Eurodollar Loans not immediately prepaid)
to be held as a security for the obligations of the Borrower to make such
mandatory prepayment pursuant to a cash collateral agreement to be entered into
in form and substance reasonably satisfactory to the Administrative Agent and
the Required Lenders, with such cash collateral to be directly applied upon the
first occurrence or occurrences thereafter of the last day of an Interest Period
applicable to each relevant New Term Loan that is a Eurodollar Loan (or such
earlier date or dates as shall be requested by the Borrower) to repay an
aggregate principal amount of such Eurodollar Loans equal to the Affected
Eurodollar Loans not initially repaid pursuant to this sentence.
Section 2.7. Default Interest; Alternate Rate of Interest. (a) In the
event that, and for so long as, any Event of Default shall have occurred and be
continuing, the Borrower shall on demand from time to time pay interest, to the
extent permitted by Applicable Law, on the New Term Loans and overdue amounts
outstanding up to (but not including) the date of actual payment of such Loan or
overdue amount (after as well as before judgment) (i) for a Eurodollar Loan, at
2% in excess of the higher of (x) the rate then in effect for Eurodollar Loans
and (y) the rate then in effect for Base Rate Loans (it being understood by the
parties hereto that a Eurodollar Loan may not be continued into a subsequent
Interest Period and no Base Rate Loan may be converted to a Eurodollar Loan, at
any time when an Event of Default shall have occurred and then be continuing
unless the Administrative Agent and the Required Lenders otherwise consent),
(ii) for a Base Rate Loan, at 2% in excess of the rate then in effect for Base
Rate Loans and (iii) for all other overdue amounts hereunder, at 2% in excess of
the rate then in effect for Base Rate Loans; provided, however, that if an Event
of Default is waived by the applicable New Term Lenders in accordance with the
terms of this Credit Agreement, then the provisions of this Section 2.7(a) shall
also be deemed waived from and after the effective date of the applicable
waiver.
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(b) In the event, and on each occasion, that on or before the day on
which the LIBO Rate for the Eurodollar Loan is to be determined as set forth
herein, (i) the Administrative Agent shall have received written notice from New
Term Lenders constituting Required Lenders of such determination (which
determination, absent manifest error, shall be conclusive) that Dollar deposits
in an amount equal to the principal amount of such New Term Lender's Eurodollar
Loans are not generally available in the London Interbank Market or that the
rate at which such Dollar deposits are being offered will not adequately and
fairly reflect the cost to such New Term Lender of making or maintaining the
principal amount of such New Term Lender's Eurodollar Loan during the applicable
Interest Period or (ii) the Administrative Agent shall have been notified by any
of the New Term Lenders that adequate and reasonable means do not exist for
ascertaining the applicable LIBO Rate, the Administrative Agent shall, as soon
as practicable thereafter, give written or facsimile notice of such
determination by any of such New Term Lenders to the Borrower and the New Term
Lenders; and any request by the Borrower for a continuation as a Eurodollar Loan
or a conversion to a Eurodollar Loan pursuant to Section 2.8 hereof, made after
receipt of such notice and until the circumstances giving rise to such notice no
longer exist, shall be ineffective, in the case of a request for a conversion to
a Eurodollar Loan and shall be deemed to be a request for a Base Rate Loan, in
the case of a request for a continuation of a Eurodollar Loan.
Section 2.8. Continuation and Conversion of New Term Loans. The
Borrower shall have the right at any time to continue a Eurodollar Loan for a
successive Interest Period, to convert a Base Rate Loan into a Eurodollar Loan
and to convert a Eurodollar Loan into a Base Rate Loan, subject to the
following:
(i) at least three (3) Business Days prior to any continuation
or conversion hereunder, the Borrower shall deliver to the Administrative Agent
a notice with respect thereto in the form of a Conversion/Continuation
Certificate executed on behalf of the Borrower by a Financial Officer of the
Borrower, such notice shall be irrevocable and to be effective, must be received
by the Administrative Agent on the day required not later than 11 a.m., New York
time;
(ii) unless the Administrative Agent acting at the written
direction of the Required Lenders and the Required Lenders otherwise consent, no
Event of Default shall have occurred and be continuing at the time of any
continuation of a Eurodollar Loan into a subsequent Interest Period or a
conversion of a New Term Loan;
(iii) the aggregate principal amount of New Term Loans continued
as Eurodollar Loans as part of the same continuation shall be in a minimum
amount of $1,000,000;
(iv) the Interest Period with respect to a new Eurodollar Loan
effected by a continuation or conversion shall commence on the date of such
continuation or conversion; provided that the Borrower shall reimburse the New
Term Lenders in accordance with Section 2.9(a) hereof for any conversion of a
Eurodollar Loan to a Base Rate Loan effective on a day other than the last day
of an Interest Period; and
(v) each request for a continuation of a Eurodollar Loan, or a
conversion of a Base Rate Loan into a Eurodollar Loan, which fails to state an
applicable Interest Period shall be deemed to be a request for an Interest
39
Period of one month; and the Administrative Agent shall, after it receives a
notice from the Borrower, promptly give the New Term Lenders notice of any
continuation or conversion and of such New Term Lender's portion of each
resulting Loan.
Section 2.9. Reimbursement of New Term Lenders. (a) The Borrower
shall reimburse each New Term Lender on demand for any loss incurred or to be
incurred by such New Term Lender in the re-employment of the funds released (i)
by any prepayment (for any reason whatsoever) of a Eurodollar Loan if such
Eurodollar Loan is prepaid prior to the last day of the Interest Period for such
Eurodollar Loan or (ii) in the event that after the Borrower delivers a notice
of continuation or conversion under Section 2.8 in respect of a Eurodollar Loan,
such Eurodollar Loan is not continued or converted on the first day of the
Interest Period specified in the applicable notice for any reason other than a
suspension or limitation under Section 2.7(b) of the right of the Borrower to
select a Eurodollar Loan. Such loss shall be the amount as reasonably determined
by such New Term Lender as the excess, if any, of (A) the amount of interest
which would have accrued to such New Term Lender on the amount so paid or not
continued at a rate of interest equal to the interest rate applicable to such
Eurodollar Loan pursuant to Section 2.4 hereof, for the period from the date of
such payment or failure to continue or convert to the last day (x) in the case
of a payment prior to the last day of the Interest Period for such Eurodollar
Loan, of the then current Interest Period for such Eurodollar Loan, or (y) in
the case of a failure to continue or convert, of the Interest Period for such
Eurodollar Loan which would have commenced on the date of such failure to
continue, over (B) the amount realized by such New Term Lender in re-employing
the funds received in prepayment or realized from the Eurodollar Loan not so
continued during the period referred to above. Each New Term Lender shall
deliver to the Borrower and to the Administrative Agent from time to time one or
more certificates setting forth the amount of such loss (and in reasonable
detail the manner of computation thereof) as determined by such New Term Lender,
which certificates shall be conclusive absent manifest error. The Borrower shall
pay such New Term Lender the amounts shown on such certificate within ten (10)
days of the Borrower's receipt of such certificate.
(b) In the event the Borrower fails to prepay the New Term Loan on
the date specified in any prepayment notice delivered pursuant to Section
2.6(a), the Borrower on demand by any New Term Lender, shall pay to the
Administrative Agent for the account of such New Term Lender any amounts
required to compensate such New Term Lender for any actual loss incurred by such
New Term Lender as a result of such failure to prepay, including, without
limitation, any loss, cost or expenses incurred by reason of the acquisition of
deposits or other funds by such New Term Lender to fulfill obligations incurred
in anticipation of such prepayment. Each New Term Lender shall deliver to the
Borrower and to the Administrative Agent from time to time one or more
certificates setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by such New Term Lender, which
certificates shall be conclusive absent manifest error. The Borrower shall pay
the Administrative Agent for the account of such New Term Lender the amounts
shown on such certificate within ten (10) days of the Borrower's receipt of such
certificate.
Section 2.10. Change in Circumstances. (a) In the event that after
the Effective Date, any change in Applicable Law or in the interpretation or
administration thereof (including, without limitation, any request, guideline or
40
policy not having the force of law) by any Governmental Authority charged with
the administration or interpretation thereof or any changes in conditions, shall
occur which shall:
(i) impose, modify or deem applicable any reserve, deposit or
similar requirement against any assets held by, deposits with or for the account
of, or Loans or commitments by, an office of such New Term Lender with respect
to a Eurodollar Loan; or
(ii) impose upon such New Term Lender or the London Interbank
Market any other condition with respect to the Eurodollar Loans made by such New
Term Lender or this Credit Agreement;
and the result of any of the foregoing shall be to increase the cost
to such New Term Lender of maintaining any Eurodollar Loan hereunder (or of
maintaining its obligation to do any of the foregoing) or to reduce the amount
of any payment (whether of principal, interest or otherwise) received or
receivable by such New Term Lender in connection with any Eurodollar Loan
hereunder, or to require such New Term Lender to make any payment in connection
with any Eurodollar Loan hereunder, then and in each case, the Borrower agrees
to pay to the Administrative Agent for the account of such New Term Lender, in
accordance with, and as provided in, paragraph (c) below, such amounts as shall
be necessary to compensate such New Term Lender for such cost, reduction or
payment (but excluding any cost, reduction or payment with respect to Taxes (and
amounts relating thereto), the indemnity for which shall be governed solely and
exclusively by Section 2.12).
(b) If at any time and from time to time after the Effective Date,
any New Term Lender shall have determined that the applicability of any law,
rule, regulation or guideline regarding capital adequacy which is adopted after
the Effective Date, or any change in any law, rule, regulation or guideline
regarding capital adequacy or in the interpretation or administration of any of
the foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or the compliance by
any New Term Lender (or any Lending Office of such New Term Lender) or any New
Term Lender's holding company with any request or directive issued after the
Effective Date regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such New Term Lender's capital or
on the capital of such New Term Lender's holding company, if any, as a
consequence of this Credit Agreement or the New Term Loan made pursuant hereto
to a level below that which such New Term Lender or such New Term Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such New Term Lender's policies and the
policies of such New Term Lender's holding company with respect to capital
adequacy), then from time to time the Borrower agrees to pay to the
Administrative Agent for the account of such New Term Lender, in accordance
with, and as provided in, paragraph (c) below, such additional amount or amounts
as will compensate such New Term Lender or such New Term Lender's holding
company for any such reduction suffered to the extent attributable to this
Credit Agreement or the New Term Loan made pursuant hereto.
(c) Each New Term Lender shall deliver to the Borrower and to the
Administrative Agent from time to time one or more certificates setting forth
the amounts due to such New Term Lender under paragraph (a) or (b) above, the
41
changes as a result of which such amounts are due and the manner of computing
such amounts. Each such certificate shall be conclusive in the absence of
manifest error. The Borrower shall pay to the Administrative Agent for the
account of each such New Term Lender the amounts shown as due on any such
certificate within ten (10) days after the Borrower's receipt of the same. No
failure on the part of any New Term Lender to demand compensation under
paragraph (a) or (b) above on any one occasion shall constitute a waiver of its
right to demand such compensation on any other occasion.
(d) Each New Term Lender agrees that after it becomes aware of the
occurrence of an event or the existence of a condition that (i) would cause it
to incur any increased cost hereunder or render it unable to perform its
agreements hereunder for the reasons specifically set forth in this Section
2.10, Section 2.11 or Section 2.12 or (ii) would require the Borrower to pay an
increased amount under this Section 2.10, Section 2.11 or Section 2.12, it will
notify the Borrower in writing of such event or condition and, to the extent not
inconsistent with such New Term Lender's internal policies, will use its
reasonable efforts to make, fund or maintain the affected New Term Loan of such
New Term Lender, through another Lending Office of such New Term Lender if as a
result thereof the additional monies which would otherwise be required to be
paid or the reduction of amounts receivable by such New Term Lender hereunder in
respect of such New Term Loan or participations therein would be materially
reduced, or such inability to perform would cease to exist, or the increased
costs which would otherwise be required to be paid in respect of such New Term
Loan or participations pursuant to this Section 2.10, Section 2.11 or Section
2.12 would be materially reduced or the taxes or other amounts otherwise payable
under this Section 2.10, Section 2.11 or Section 2.12 would be materially
reduced, and if, as determined by such New Term Lender, in its sole discretion,
the making, funding or maintaining of such New Term Loan or participations
therein through such other Lending Office would not otherwise be disadvantageous
to such New Term Lender. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any New Term Lender in connection with any action taken
by such New Term Lender to comply with this Section 2.10(d). The Borrower shall
pay to the Administrative Agent for the account of such New Term Lender the
amounts shown as due on any such statement within ten (10) Business Days after
the Borrower's receipt of same.
(e) If the Borrower shall receive notice from any New Term Lender
that Eurodollar Loans are no longer available from such New Term Lender pursuant
to Section 2.11, that amounts are due to such New Term Lender pursuant to
paragraph (c) hereof, that any of the events designated in paragraph (d) hereof
have occurred, or that an event has occurred that would cause the Borrower to
pay any amount pursuant to clause (e) of Section 2.12, the Borrower may (at its
sole cost, expense and effort, and subject in any such case to the payments
required by this Credit Agreement, including, without limitation Section 2.9
hereof), upon at least five (5) Business Days' prior written or facsimile notice
to such New Term Lender and the Administrative Agent, but not more than thirty
(30) days after receipt of notice from such New Term Lender, identify to the
Administrative Agent a lending institution ("Purchasing Lender") reasonably
acceptable to the Borrower and consented to, in writing, by the Required Lenders
which will purchase (for an amount, in immediately available funds, equal to the
principal amount of outstanding New Term Loans payable to such New Term Lender,
plus all accrued but unpaid interest and fees payable to such New Term Lender),
the amount of outstanding New Term Loans from the New Term Lender providing such
notice, and such New Term Lender shall thereupon assign any New Term Loans owing
to such New Term Lender, and any notes held by such New Term Lender, to such
42
Purchasing Lender pursuant to Section 10.3 hereof. A New Term Lender shall not
be required to make any assignment pursuant to this Section 2.10(e) if (A) prior
to such assignment, as a result of a waiver by such New Term Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
cease to apply, or (B) prior to such assignment, such New Term Lender elects to
withdraw its applicable request or notice, or (C) after such assignment,
Eurodollar Loans would not be available from the Purchasing Lender or amounts
payable to the Purchasing Lender pursuant to the various provisions set forth at
the beginning of this Section 2.10(e), would not be materially less than the
amounts payable to the New Term Lender which is otherwise required to enter into
the applicable assignment pursuant to this Section 2.10(e).
Section 2.11. Change in Legality. (a) Notwithstanding anything to the
contrary contained elsewhere in this Credit Agreement, if any change after the
date hereof in Applicable Law, guideline or order, or in the interpretation
thereof by any Governmental Authority charged with the administration thereof,
shall make it unlawful for any New Term Lender to make or maintain any
Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to a Eurodollar Loan, then, by written notice to the Borrower and the
Administrative Agent, such New Term Lender may require that, subject to Section
2.9, the Eurodollar Loan made by it be converted to Base Rate Loan, whereupon
such Eurodollar Loan shall automatically be converted to a Base Rate Loan, as of
the effective date of such notice as provided in paragraph (b) below.
(b) A notice to the Borrower by any New Term Lender pursuant to
paragraph (a) above shall be effective for purposes thereof on the last day of
the current Interest Period for each outstanding Eurodollar Loan; and in all
other cases, on the date of receipt of such notice by the Borrower.
(c) The Borrower shall have the right to convert the New Term Loan
that was converted to a Base Rate Loan pursuant to paragraph (a) above to a
Eurodollar Loan at any time after it becomes lawful for any New Term Lender to
make or maintain a Eurodollar Loan, subject to the following:
(i) at least three (3) Business Days prior to any conversion or
continuation hereunder, the Borrower shall deliver to the Administrative Agent a
notice with respect thereto in the form of a Conversion/Continuation Certificate
executed on behalf of the Borrower by a Financial Officer of the Borrower and
the New Term Lenders shall not by written notice to the Borrower, object to the
conversion during such three (3) Business Days; such notice shall be irrevocable
and to be effective, must be received by the Administrative Agent on the day
required not later than 11 a.m., New York time;
(ii) unless the Administrative Agent acting at the written
direction of the Required Lenders otherwise consents, no Event of Default shall
have occurred and be continuing at the time of any conversion to a Eurodollar
Loan;
(iii) the aggregate principal amount of New Term Loans converted
to, Eurodollar Loans as part of the same conversion, shall be in a minimum
amount of $1,000,000;
43
(iv) if fewer than all of the New Term Loans at the time
outstanding shall be converted, such conversion shall be made pro rata among the
New Term Lenders in accordance with the respective principal amount of such New
Term Loan held by the New Term Lenders immediately prior to such conversion;
(v) the Interest Period with respect to a new Eurodollar Loan
effected by a conversion shall commence on the date of such conversion; and
(vi) each request for a conversion to a Eurodollar Loan which
fails to state an applicable Interest Period shall be deemed to be a request for
an Interest Period of one month.
Section 2.12. Tax Matters. (a) On or prior to the Effective Date,
prior to the effective date set forth in the Assignment and Acceptance with
respect to any New Term Lender becoming a New Term Lender after the Effective
Date (or in the case of a successor Administrative Agent, prior to the date such
Administrative Agent becomes the Administrative Agent), and from time to time
after the Effective Date (if (a) requested by the Borrower or the Administrative
Agent because, as a result of a change in law or a change in circumstances or
otherwise, a previously delivered form or statement becomes incomplete or
incorrect in any material respect or becomes obsolete or expires or (b) a change
in circumstances of the New Term Lender has occurred (including for example a
change in its applicable lending office)) (i) each New Term Lender and
Administrative Agent that is not a United States person as defined in Section
7701(a)(30) of the Code shall provide the Administrative Agent and the Borrower
with complete, accurate and duly executed forms, as applicable, (A) Form W-8BEN
(claiming exemption from, or a reduction of, U.S. withholding tax under an
income tax treaty or the portfolio interest exception) or any successor form,
(B) Form W-8ECI (claiming exemption from U.S. withholding tax because the income
is effectively connected with a U.S. trade or business) or any successor form,
(C) in the case of such New Term Lender or Administrative Agent that is claiming
exemption under Sections 871(h) or 881(c) of the Code, Form W-8BEN (claiming
exemption from U.S. withholding tax under the portfolio interest exemption) or
any successor form or (D) any other applicable form, certificate or document
prescribed by the IRS of the United States certifying as to such New Term
Lender's or Administrative Agent's, as the case may be, entitlement to such
exemption from United States withholding tax or a reduced rate with respect to
all payments to be made to such New Term Lender or Administrative Agent, as the
case may be, under the Loan Documents; and (ii) with respect to each New Term
Lender and each Administrative Agent that is a United States person as defined
in Section 7701(a)(30) of the Code, shall provide the Administrative Agent and
Borrower with a complete, accurate and duly executed Form W-9 (certifying that
such New Term Lender or such Administrative Agent, as the case may be, is
entitled to an exemption from United States backup withholding tax) or any
successor form.
(b) The Borrower or the Administrative Agent shall be entitled to
deduct and withhold any and all present or future Taxes from payments to a New
Term Lender or Administrative Agent, as the case may be, hereunder or under any
other Loan Document, if and to the extent that the Borrower or the
Administrative Agent in good faith determines that such deduction or withholding
is required by the law of the United States, including, without limitation, any
applicable treaty of the United States. In the event the Borrower or the
44
Administrative Agent shall so determine that deduction or withholding of Taxes
is required, it shall advise the affected New Term Lender or Administrative
Agent, as the case may be, as to the basis of such determination prior to
actually deducting and withholding such Taxes. In the event the Borrower or the
Administrative Agent shall so deduct or withhold Taxes from amounts payable
hereunder, it (i) shall pay to, or deposit with, the appropriate taxing
authority in a timely manner the full amount of Taxes it has deducted or
withheld; (ii) shall provide to each New Term Lender or Administrative Agent, as
the case may be, from whom Taxes were deducted or withheld, evidence of payment
of such Taxes to, or the deposit thereof with, the appropriate taxing authority
and a statement setting forth the amount of Taxes deducted or withheld, the
applicable rate, and any other information or documentation reasonably requested
by such New Term Lender or Administrative Agent, as the case may be; and (iii)
shall forward to each such New Term Lender or Administrative Agent, as the case
may be, any official tax receipts or other documentation with respect to the
payment or deposit of the deducted or withheld Taxes as may be issued from time
to time by the appropriate taxing authority. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
or to its counsel indicating that payments hereunder or under any New Term Note
hereunder are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold Taxes from such payments at the applicable
statutory rate in the case of payments to or for any New Term Lender or
Administrative Agent, as the case may be.
(c) Each New Term Lender agrees (i) that as between it and the
Borrower or the Administrative Agent, such New Term Lender shall be the Person
to deduct and withhold Taxes, and to the extent required by Applicable Law, it
shall deduct and withhold Taxes on amounts that such New Term Lender may remit
to any other Person(s) by reason of any undisclosed transfer or assignment of an
interest in this Credit Agreement to such other Person(s) pursuant to Section
10.3; and (ii) to indemnify the Borrower, the Administrative Agent and Related
Parties of the Borrower or the Administrative Agent against, and to hold them
harmless from, any Tax, interest, additions to tax, penalties, reasonable
counsel and accountants' fees, disbursements or payments arising from the
assertion by any appropriate taxing authority of any claim against them relating
to a failure to withhold Taxes as required by law with respect to amounts
described in clause (i) of this paragraph (c) or arising from the reliance by
the Borrower or the Administrative Agent on any form or other document furnished
by such New Term Lender and purporting to establish a basis for not withholding,
or for withholding at a reduced rate, Taxes with respect to payments hereunder
or under any other Loan Document.
(d) Each assignee of a New Term Lender's interest in this Credit
Agreement in conformity with Section 10.3 shall be bound by this Section 2.12,
so that such assignee will have all of the obligations and provide all of the
forms and statements and all indemnities, representations and warranties
required to be given under this Section 2.12.
(e) Notwithstanding the foregoing, in the event that any Taxes other
than Excluded Taxes shall become payable in respect of any sum payable hereunder
or under any other Loan Document to any New Term Lender or the Administrative
Agent (i) the sum payable by the Borrower shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such New Term Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such withholding deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law and (iv) the Borrower shall forward to such New
Term Lender or the Administrative Agent (as the case may be) the official tax
45
receipts or other documentation pursuant to and as set forth in Section 2.12(b).
In addition, the Borrower shall indemnify each New Term Lender and the
Administrative Agent for any Taxes other than Excluded Taxes paid by such New
Term Lender or the Administrative Agent, as the case may be, or any liability
(including penalties and interest) arising therefrom or with respect thereto.
(f) The Borrower agrees that it shall indemnify the Administrative
Agent, the Collateral Agent and the New Term Lenders from, and hold them
harmless against, any documentary, excise, property or other Taxes, assessments
or charges made by any Governmental Authority by reason of the execution,
filing, recording, amendment, discharge, enforcement and delivery of this Credit
Agreement, any notes evidencing the New Term Loan and any other document arising
hereunder or related hereto.
(g) In the event that a New Term Lender or the Administrative Agent
receives a refund of or credit for Taxes (other than Excluded Taxes) withheld or
paid pursuant to Section 2.12(e), which credit or refund is identifiable by such
New Term Lender or such Administrative Agent (as applicable) as being a result
of Taxes withheld or paid in connection with sums payable hereunder or under any
other Loan Document, such New Term Lender or the Administrative Agent (as
applicable) shall promptly notify the Administrative Agent and the Borrower and,
if the Borrower has paid such Taxes, shall remit to the Borrower the amount of
such refund or credit allocable to payments made hereunder or under any other
Loan Document, net of all out-of-pocket expenses of the applicable
Administrative Agent or New Term Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that the Borrower, upon request of such New Term
Lender or the Administrative Agent, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the applicable New Term Lender or the Administrative
Agent in the event such New Term Lender or Administrative Agent is required to
repay such refund to such Governmental Authority. Nothing contained herein shall
require the Administrative Agent or any New Term Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(h) Each New Term Lender agrees that after it becomes aware of the
occurrence of an event that would cause the Borrower to pay any amount pursuant
to clause (e) of this Section 2.12, it will use reasonable efforts to notify the
Borrower of such event and, to the extent not inconsistent with such New Term
Lender's internal policies, will use its reasonable efforts to maintain the New
Term Loan of such New Term Lender through another Lending Office of such New
Term Lender if as a result thereof the additional monies which would otherwise
be required to be paid by reason of Section 2.12(e) in respect of such New Term
Loan would be materially reduced, and if, as determined by such New Term Lender,
in its sole discretion, the maintaining of such New Term Loan through such other
Lending Office would not otherwise be disadvantageous to such New Term Lender.
46
(i) Should a New Term Lender become subject to Excluded Taxes,
Borrower at such New Term Lender's expense shall take such steps as such Lender
shall reasonably request to reasonably assist (consistent with its preexisting
internal policies applied on a nondiscriminatory basis and legal and regulatory
restrictions) such Lender to recover such Taxes.
(j) Without prejudice to the survival of any other section of this
Credit Agreement, the agreements and obligations of Borrower, the Administrative
Agent and New Term Lender contained in this Section 2.12 shall survive the
payment in full by Borrower of all principal and Interest hereunder, until six
(6) months after the expiration of the applicable statue of limitation with
respect to any Taxes or Excluded Taxes.
Section 2.13. Interest Adjustments. If the provisions of this Credit
Agreement or any New Term Note would at any time require payment by the Borrower
to a New Term Lender of any amount of interest in excess of the maximum amount
then permitted by Applicable Law, the applicable interest payments to that New
Term Lender in connection with the New Term Loan shall be reduced to the extent
and in such a manner as is necessary in order that such New Term Lender shall
not receive interest in excess of such maximum amount. If, as a result of the
foregoing, a New Term Lender shall receive interest payments hereunder with
respect to the New Term Note in an amount less than the amount otherwise
provided hereunder, such deficit (hereinafter called the "Interest Deficit")
will, to the fullest extent permitted by Applicable Law, cumulate and will be
carried forward (without interest) until the Bank Credit Termination Date
(except to the extent paid pursuant to the immediately succeeding sentence).
Interest otherwise payable to a New Term Lender hereunder with respect to the
New Term Loan and under any New Term Note for any subsequent period shall be
increased by the maximum amount of the Interest Deficit that may be so added
without causing such New Term Lender to receive interest in excess of the
maximum amount then permitted by Applicable Law.
Section 2.14. Provisions Regarding Payments. (a) Subject to Section
2.14(b) below, all payments of principal and interest by the Borrower or any
other Loan Party in respect of the New Term Loans shall be allocated pro rata
among the New Term Lenders holding the New Term Loans in accordance with the
then outstanding principal amounts of the New Term Loan held by them. All
payments by the Borrower or any other Loan Party hereunder and under any New
Term Notes hereunder shall be made without offset, counterclaim, recoupment,
defense, setoff or other deduction in Dollars, in immediately available funds,
to the Administrative Agent at the office of: Deutsche Bank Trust Company
Americas, ABA # 000000000, A/C # 01419647, A/C Name: Corporate Trust, Ref:
Borrower Account, Account # 37089, Attn: Xxxx Xxxxxxxx, no later than 12:00
p.m., on the date on which such payment shall be due. Any payment received at
such office after such time shall be deemed received on the following Business
Day. The Administrative Agent shall distribute any such payments received by it
for the account of any other Person to the appropriate recipient promptly
following receipt thereof.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due and payable hereunder, such funds shall be applied as follows: (i)
first, towards payment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then due
47
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
Section 2.15. Cash Management System. On or prior to the Effective
Date, the Borrower will establish the cash management systems described in
Schedule 2.15 hereto (the "Cash Management System"). The Borrower will maintain
such Cash Management System in accordance with such Schedule 2.15 until the New
Term Loans shall have been indefeasibly paid in full by the Borrower, together
with all accrued interest thereon, and all other Obligations of the Borrower or
any other Loan Party hereunder or under any of the other Loan Documents shall
have been completely paid or discharged.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF LOAN PARTIES
The Borrower and each of the other Loan Parties makes the following
representations and warranties to the Administrative Agent and the New Term
Lenders as of the Effective Date, all of which shall survive the execution and
delivery of this Credit Agreement:
Section 3.1. Existence and Power. (a) The Borrower is a Delaware company duly
organized, validly existing and in good standing under the laws of Delaware and
is qualified to do business and is in good standing in all other jurisdictions
where both (i) the nature of its properties or business so requires and (ii) the
failure to be in good standing could reasonably be expected to have a Material
Adverse Effect (a list of such jurisdictions as of the Effective Date is
attached hereto as Schedule 3.1(a)).
(b) Each Loan Party (other than the Borrower) is a corporation,
limited liability company, general partnership, limited partnership, or business
trust duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization and is qualified to do business and is in good
standing in all other jurisdictions where both (i) the nature of its properties
or business so requires and (ii) the failure to be in good standing could
reasonably be expected to have a Material Adverse Effect (a list of such
jurisdictions as of the Effective Date is attached hereto as Schedule 3.1(b)).
(c) Each Loan Party's name as it appears in official filings in its
state of incorporation or organization, organization type, organization number,
if any, issued by its state of incorporation or organization, and the federal
employer identification number are set forth in Schedule 3.1(c).
(d) Each of the Loan Parties has the corporate, company or
partnership, as the case may be, power and authority (i) to own its respective
properties and carry on its respective business as now being, or as now intended
to be, conducted, (ii) to execute, deliver and perform, as applicable, its
obligations under the Credit Agreement and the other Loan Documents to which it
is a party and any other documents contemplated hereby or thereby to which it is
or will be a party, and (iii) to grant to the Administrative Agent, for the
benefit of the Secured Parties, a security interest in the Collateral as
contemplated by this Credit Agreement and the other Loan Documents to which it
is or will be a party; and in the case of Pledgors, to pledge to the
48
Administrative Agent for the benefit of the Secured Parties, the Pledged Shares
as contemplated by the Pledge Agreement; and in the case of the Guarantors, to
Guaranty the Obligations as contemplated by Article 8 hereof.
(e) Neither the Borrower nor any of the other Loan Parties is aware
of any failure by any Subsidiary of the Borrower that is a Foreign Subsidiary to
duly organize or qualify, as applicable, in its foreign jurisdiction of
organization and any required foreign jurisdiction of qualification, or the
like, as the nature of its properties or businesses so requires or where the
failure to do so could reasonably be expected to result in a Material Adverse
Effect.
Section 3.2. Authority and No Violation. The execution, delivery and
performance of this Credit Agreement and the other Loan Documents to which it is
a party, by each Loan Party, the grant to the Administrative Agent for the
benefit of the Secured Parties of the security interest in the Collateral as
contemplated by this Credit Agreement, the Security Agreement and the other Loan
Documents to which it is or will be a party, by each Loan Party, and the pledge
to the Administrative Agent for the benefit of the Secured Parties of the
Pledged Shares as contemplated by the Pledge Agreement by each Pledgor and, in
the case of the Borrower, the borrowing of the New Term Loan hereunder and the
execution, delivery and performance of the New Term Notes and, in the case of
each Guarantor, the Guaranty of the Obligations as contemplated in Article 8
hereof, (i) have been duly authorized by the Confirmation Order and all
necessary corporate, partnership or limited liability company (as applicable)
action on the part of each such Loan Party and by all necessary Stockholder,
partner or member (as applicable) action, (ii) will not constitute a violation
of any provision of Applicable Law or any order of any Governmental Authority
applicable to such Loan Party or any of its respective properties or assets,
(iii) will not violate any provision of the certificate of incorporation,
by-laws, partnership agreement, limited liability company agreement, articles of
organization or any other organizational document of any Loan Party, or any
provision of any indenture, agreement, bond, note, mortgage, deed of trust, or
any similar instrument or agreement evidencing Indebtedness or any Material
Agreement to which such Loan Party is a party or subject or by which such Loan
Party or any of its respective properties or assets are bound, (iv) will not be
in conflict with, result in a breach of, or constitute (with due notice or lapse
of time or both) a default under, or create any right to terminate, any such
indenture, agreement, bond, note, mortgage, deed of trust, or any similar
instrument or agreement evidencing Indebtedness or any Material Agreement, to
which such Loan Party is a party, or give rise to any right under any of the
foregoing to require any payment to be made by any Loan Party, and (v) will not
result in the creation or imposition of (or the obligation to create or impose)
any Lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of any of the Loan Parties other than pursuant to this
Credit Agreement or the other Loan Documents.
Section 3.3. Governmental Approval. (a) All authorizations,
approvals, orders, consents, licenses, registrations or filings from or with any
Governmental Authority required for the execution, delivery and performance by
any Loan Party of this Credit Agreement or any of the other Loan Documents to
which it is a party, and the execution and delivery by the Borrower of any New
Term Notes, have been duly obtained or made, and are in full force and effect.
(b) As of the Effective Date, except as set forth on Schedule 3.3(b)
hereof, each Loan Party and its Subsidiaries has obtained and holds in full
49
force and effect all governmental authorizations, orders, consents, licenses,
franchises, permits, certificates, accreditations, easements, Rights of Way and
other approvals necessary to own its respective property and assets and to carry
on its respective business as now being, or as now intended to be, conducted,
other than those the absence of which is not reasonably likely to have a
Material Adverse Effect.
(c) As of the Effective Date, except as set forth on Schedule 3.3(c)
hereto, no Loan Party has been notified by any Governmental Authority with
respect to a material authorization, order, consent, license, franchise, permit,
certificate, accreditation, easement, right of way or other approval to operate
its business as currently being conducted, or intended to be conducted, of such
authority's intention to rescind, or not renew, any such authorization, order,
consent, license, franchise, permit, certificate, accreditation, easement, right
of way or other approval.
Section 3.4. Validity, Binding Agreements. Each Loan Party has duly
executed and delivered this Credit Agreement and each other Loan Document to
which it is a party. Each of this Credit Agreement and the other Loan Documents
constitutes the legal, valid and binding obligation of each Loan Party that is a
party thereto, enforceable against such Loan Party in accordance with its
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally
and to general principles of equity, whether such enforceability is considered
in a proceeding at law or in equity.
Section 3.5. No Material Adverse Effect. Except as set forth on
Schedule 3.5(a) hereto, since December 31, 2002, no facts, events, or conditions
have occurred, that alone or together with other facts, events or conditions,
constitute a Material Adverse Effect.
Section 3.6. Financial Information. (a) The following Financial
Statements attached hereto as Schedule 3.6(a) have been delivered on the date
hereof: (i) the audited consolidated and unaudited consolidating balance sheets
of the Borrower and its Consolidated Subsidiaries at December 31, 2002; and (ii)
the related audited consolidated and unaudited consolidating statements of
income and audited consolidated statement of cash flows of the Borrower and its
Consolidated Subsidiaries for the Fiscal Year then ended; (iii) the unaudited,
consolidated and consolidating balance sheets at April 30, 2003 and related
unaudited consolidated and consolidating statements of income and unaudited,
consolidated statement of cash flows of the Borrower and its Consolidated
Subsidiaries for the four months then ended, in the forms which have previously
been delivered to the New Term Lenders, have been prepared in accordance with
GAAP consistently applied, subject in the case of unaudited statements, to
changes resulting from year-end and audit adjustments. All of such Financial
Statements fairly present in all material respects, in accordance with GAAP, the
consolidated financial position, the results of operations and cash flows, as
the case may be, of the Borrower and its Consolidated Subsidiaries, at the dates
or for the periods indicated.
(b) During the period from December 31, 2002 to and including April
30, 2003, none of the Borrower, any other Loan Party or any Subsidiary of a Loan
Party has incurred any Indebtedness (including, without limitation, any Guaranty
in a principal amount in excess of $100,000), other than as described on
Schedule 3.6(b) hereto.
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(c) Except as disclosed in the Financial Statements referred to in
Section 3.6(a) above or the notes thereto, none of the Borrower or any
Subsidiary of the Borrower has, as of the Effective Date, any material
contingent liabilities, material long-term commitments or unrealized material
losses.
(d) The pro forma unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of April 30, 2003 delivered on the date hereof
and attached hereto as Schedule 3.6(d) was prepared by the Borrower giving pro
forma effect to the Related Transactions, was based on the unaudited
consolidated balance sheets of Borrower and its Subsidiaries dated as of April
30, 2003 and was prepared in accordance with GAAP, with only such adjustments
thereto as would be required in accordance with GAAP.
(e) The Projections delivered on the date hereof and attached hereto
as Schedule 3.6(e) have been prepared by the Borrower in light of the past
operations of the businesses of the Borrower and its Consolidated Subsidiaries,
and reflect Projections for the three year period beginning on January 1, 2003
on a month-by-month basis through December 31, 2003 (on a consolidated and
consolidating basis), quarterly for 2004 (on a consolidated basis only), and on
a year-by-year basis thereafter (on a consolidated basis only). The Projections
are based upon the same accounting principles as those used in the preparation
of the Financial Statements described above and the estimates and assumptions
stated therein, all of which the Borrower believes to be reasonable and fair in
light of current conditions and current facts known to the Borrower and, as of
the Effective Date, reflect the Borrower's good faith and reasonable estimates
of the future financial performance of the Borrower and its Consolidated
Subsidiaries for the period set forth therein. The Projections are not a
guaranty of future performance, and actual results may differ from the
Projections.
Section 3.7. Subsidiaries. (a) Annexed hereto as Schedule 3.7(a) is a
true and complete list as of the Effective Date, of each Loan Party and of each
Subsidiary of a Loan Party showing, as to each, (i) its name, (ii) the
jurisdiction in which it was incorporated or otherwise organized, (iii) in the
case of a Subsidiary which is a corporation, its authorized capitalization, the
number of shares of its capital stock outstanding and the ownership of such
capital stock, (iv) in the case of a Loan Party which is a limited partnership,
the general partners and limited partners of such Loan Party and the ownership
of its partnership interests, and (v) in the case of a Loan Party which is a
limited liability company, the members of such Loan Party and the ownership of
its limited liability company interests.
(b) As of the Effective Date, no Loan Party or Subsidiary of a Loan
Party owns any voting stock, Equity Interest or other beneficial interest,
either directly or indirectly, in any Person other than (i) another Loan Party
or a Subsidiary of a Loan Party (as set forth on Schedule 3.7(a) hereto) and
(ii) such Persons as set forth on Schedule 3.7(b) hereto.
(c) As of the Effective Date, no Loan Party or Subsidiary of a Loan
Party is a general or limited partner in any Joint Venture or partnership,
except as described in Schedule 3.7(c) hereto.
Section 3.8. Patents, Trademarks, Copyrights and Other Rights. (a)
Each of the applicable Loan Parties possesses all patents, patent rights and
Licenses, trademarks, service marks, tradenames, trademark rights and Licenses,
51
Copyrights, copyright rights and Licenses and any other similar rights and any
goodwill associated with any of the foregoing (collectively the "Proprietary
Rights"), free from burdensome restrictions, which are material to the conduct
of its respective business and has duly recorded its interest in such
Proprietary Rights in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable. Schedule 3.8 is a true and
complete list as of the Effective Date of all registered Proprietary Rights, and
all Proprietary Rights as to which an application for registration has been
made, owned and used or held for use by any such Loan Party, specifying as to
each, as applicable: (i) the nature of such Proprietary Right; (ii) the Loan
Party which owns such Proprietary Right; (iii) the jurisdictions by or in which
such Proprietary Right has been issued or registered (or, if applicable, in
which an application for such issuance or registration has been filed),
including the respective registration or application numbers and (iv) all
Licenses, sublicenses and other agreements to which a Loan Party is a party and
pursuant to which any Person is authorized to use any Proprietary Right
including, as to licenses to a Loan Party, the identity of the licensor, and as
to licenses granted by a Loan Party, the identity of the licensee. To the best
of each such Loan Parties' knowledge, a Loan Party is either (1) the sole and
exclusive owner (excluding licenses granted by a Loan Party) of all right, title
and interest in and to (free and clear of any Lien other than Permitted
Encumbrances) the Proprietary Rights described in Schedule 3.8 hereto and has
sole and exclusive rights to the use thereof or the material covered thereby in
connection with the services or products in respect of which they are being
used, or (2) the licensee of (free and clear of any Lien) the Proprietary Rights
described in Schedule 3.8 hereto and has the rights to the use thereof or
material covered thereby in connection with the services or products in respect
of which they are being used.
(b) Except as set forth on Schedule 3.8 hereto, (i) there is no
claim, suit, action or proceeding pending, or to the Loan Parties' knowledge,
threatened, against a Loan Party that involves a claim of infringement or
misappropriation of any Proprietary Right owned or used or held for use by a
Loan Party which claim, suit, action or proceeding could reasonably be expected
to be a Material Adverse Effect; and (ii) no Loan Party has any knowledge of any
existing infringement or misappropriation by any other Person of any Proprietary
Right owned and used or held for use by a Loan Party, that could reasonably be
expected to be a Material Adverse Effect.
Section 3.9. Ownership of Property; Liens; Collateral Locations. (a)
As of the Effective Date, the Real Property Assets listed in Schedule 3.9(a)
hereto constitute all of the real property owned, leased, subleased, or used by
the Loan Parties. The Borrower and its Consolidated Subsidiaries own good and
marketable fee simple title to all of their owned Real Property Assets, and
valid and marketable leasehold interests in all of their leased Real Property
Assets, and with respect to the Loan Parties, all as described on Schedule
3.9(a), and, if requested by the Administrative Agent acting at the written
direction of the Required Lenders, copies of all such leases or a summary of
terms thereof reasonably satisfactory to the Required Lenders have been
delivered to the Administrative Agent. Schedule 3.9(a) further describes any
Real Property Assets with respect to which the Loan Parties are a lessor,
sublessor or assignor as of the Effective Date.
(b) The Borrower and its Consolidated Subsidiaries also have good and
marketable title to, or valid leasehold interests in, all of their personal
property and assets. As of the Effective Date, none of the properties and assets
52
of the Borrower and its Consolidated Subsidiaries are subject to any Liens other
than Permitted Encumbrances, and there are no facts, circumstances or conditions
known to the Borrower or its Consolidated Subsidiaries that may result in any
Liens (including Liens arising under Environmental Laws) other than Permitted
Encumbrances. Each of the Borrower and its Consolidated Subsidiaries have
received all deeds, assignments, waivers, consents, nondisturbance and
attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect the Borrower's and its Consolidated Subsidiaries' right,
title and interest in and to all such Real Property Assets and other properties
and assets.
(c) As of the Effective Date, the current location of the Loan
Parties' chief executive offices and the warehouses and Premises at which any
Collateral with a fair market value in excess of $5,000 is located and held by
the Borrower or any of its Subsidiaries or any bailee on behalf of any of them
are set forth in Schedule 3.9(c), none of such locations other than those with
respect to bailees has changed within the one (1) month preceding the Effective
Date and each of the Borrower and its Consolidated Subsidiaries has only one
state (or country in the case of a Foreign Subsidiary) of incorporation or
organization.
(d) As of the Effective Date, no portion of either the Borrower's or
any of its Consolidated Subsidiaries' Real Property Assets have 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.
(e) Except as set forth on Schedule 3.9(e), as of the Effective Date,
all material permits required to have been issued or appropriate to enable the
Real Property Assets 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.
(f) Each of the Borrower and its Consolidated Subsidiaries has
complied in all material respects with all leases to which it is a party, and is
aware of no defaults under any such lease or any conditions which with the
passage of time or delivery of notice would constitute a default thereunder and
all such leases are in full force and effect. Each of the Borrower or its
Consolidated Subsidiaries which is a lessee under any lease, enjoys peaceful and
undisturbed possession of the assets leased pursuant to such leases, and such
assets are free and clear of all Liens, subject only to Permitted Encumbrances.
Section 3.10. Litigation; Judgments. (a) Except as set forth on
Schedule 3.10 hereto, there are no actions, suits or other proceedings at law or
in equity by or before any arbitrator or arbitration panel, or any Governmental
Authority (including, but not limited to, matters relating to environmental
liability) or any investigation by any Governmental Authority of the affairs of,
or to the best of each Loan Party's knowledge, and each Subsidiary of such Loan
Party's knowledge threatened action, suit or other proceeding against or
affecting, the Borrower or any other Loan Party or Subsidiary of a Loan Party or
of any of their respective properties or rights which either (A) has a
reasonable risk of being determined adversely to any of them and that, if so
determined, could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, or (B) relate to this Credit Agreement, any
other Loan Document, any of the transactions contemplated hereby or thereby or a
material portion of the Collateral. Neither the Borrower nor any other Loan
53
Party or Subsidiary of a Loan Party is in default with respect to any order,
writ, injunction, decree, rule or regulation of any Governmental Authority
binding upon such Person, which default could reasonably be expected to have a
Material Adverse Effect.
(b) As of the Effective Date there are no final, nonappealable
judgments or decrees in an aggregate amount of two hundred fifty thousand
Dollars ($250,000) or more entered by a court or courts of competent
jurisdiction against one or more of the Loan Parties or their Subsidiaries.
Section 3.11. Federal Reserve Regulations. No Loan Party or
Subsidiary of a Loan Party is engaged principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the New Term Loans have
been or will be used, directly or indirectly, whether immediately, incidentally
or ultimately (i) to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock, or (ii) for
any other purpose, in each case, violative of or inconsistent with any of the
provisions of any regulation of the Board, including, without limitation,
Regulations T, U and X thereto.
Section 3.12. Investment Company Act. No Loan Party or Subsidiary of
a Loan Party is, or will during the term of this Credit Agreement be, (i) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, or (ii)
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or any foreign, federal or local statute or any other
Applicable Law of the United States of America or any other jurisdiction, in
each case limiting its ability to incur indebtedness for money borrowed as
contemplated hereby or by any other Loan Document.
Section 3.13. Taxes. All federal and other material tax returns,
reports and statements, including information returns, required by any
Governmental Authority to be filed by any of the Borrower and its Consolidated
Subsidiaries have been filed with the appropriate Governmental Authority, and
all Charges have been paid prior to the date on which any fine, penalty,
interest or late charge may be added thereto for nonpayment thereof (excluding
(i) Charges or other amounts being contested in accordance with Section 5.9 and
(ii) any Charges discharged in the Chapter 11 Cases or payable over time in
accordance with the Plan of Reorganization), unless the failure to so file or
pay would not reasonably be expected to result in fines, penalties or interest
in excess of $100,000 in the aggregate. Proper and accurate amounts have been
withheld by the Borrower and its Consolidated Subsidiaries from their respective
employees for all periods in compliance in all material respects with all
applicable federal, state, local and foreign laws and such withholdings have
been timely paid to the respective Governmental Authorities (except to the
extent discharged in the Chapter 11 Cases or payable over time in accordance
with the Plan of Reorganization). Schedule 3.13 sets forth as of the Effective
Date those taxable years for which any of the Borrower or its Consolidated
Subsidiaries' tax returns are currently being audited by the IRS or any other
applicable Governmental Authority, and any assessments in connection with such
audit, or otherwise currently outstanding. Except as described in Schedule 3.13,
as of the Effective Date, the Borrower and its Consolidated Subsidiaries have
not executed or filed with the IRS or any other Governmental Authority any
agreement or other document extending, or having the effect of extending, the
54
period for assessment or collection of any Charges for any open periods, except
to the extent discharged in the Cases or payable over time in accordance with
the Plan of Reorganization. Except as set forth on Schedule 3.13, the Borrower
and its Consolidated Subsidiaries and their respective predecessors are not
liable for any Charges: (a) under any agreement (including any tax sharing
agreements) or (b) to the Borrower and its Consolidated Subsidiaries' knowledge,
as a transferee. As of the Effective Date, the Borrower and its Consolidated
Subsidiaries have not agreed or been requested to make any adjustment under Code
Section 481(a), by reason of a change in accounting method or otherwise, which
would reasonably be expected to have a Material Adverse Effect.
Section 3.14. ERISA. (a) Schedule 3.14 lists, as of the Effective
Date, (i) all ERISA Affiliates and (ii) all Plans, including Title IV Plans,
Multiemployer Plans, and all Retiree Welfare Plans. Copies of all such listed
Plans, if requested by the Administrative Agent acting at the written direction
of the Required Lenders, together with a copy of the latest form IRS/DOL
5500-series, as applicable, for each such Plan, shall be delivered to the
Administrative Agent. Except with respect to Multiemployer Plans, each Qualified
Plan has been determined by the IRS to qualify under Section 401 of the Code,
the trusts created thereunder have been determined to be exempt from tax under
the provisions of Section 501 of the Code, and nothing has occurred that would
cause the loss of such qualification or tax-exempt status. Each Plan is in
compliance in all respects with the applicable provisions of ERISA, the Code and
its terms, including the timely filing of all reports required under the Code or
ERISA, except for non-compliance which would not have a Material Adverse Effect.
The Borrower, its Consolidated Subsidiaries and ERISA Affiliate have not failed
to make any material contribution or pay any material amount due as required by
either Section 412 of the Code or Section 302 of ERISA or the terms of any such
Plan, except for non-compliance which would not have a Material Adverse Effect.
No "prohibited transaction," as defined in Section 406 of ERISA and Section 4975
of the Code, has occurred with respect to any Plan, that would subject the
Borrower or its Consolidated Subsidiaries to a tax on prohibited transactions
imposed by Section 502(i) of ERISA or Section 4975 of the Code, which would have
a Material Adverse Effect.
(b) Except as set forth in Schedule 3.14 or in the Borrower's
Financial Statements provided to the New Term Lenders from time to time or as
would not have a Material Adverse Effect: (i) no Title IV Plan has any material
Unfunded Pension Liability; (ii) no ERISA Event has occurred or is reasonably
expected to occur; (iii) there are no pending, or to the knowledge of the
Borrower and its Consolidated Subsidiaries, threatened material claims (other
than claims for benefits in the normal course), sanctions, actions or lawsuits,
asserted or instituted against any Plan or the Borrower or its Consolidated
Subsidiaries or ERISA Affiliate as fiduciary or sponsor of any Plan; (iv) the
Borrower or its Consolidated Subsidiaries or ERISA Affiliate has not incurred or
reasonably expects to incur any material liability as a result of a complete or
partial withdrawal from a Multiemployer Plan; (v) within the last five years no
Title IV Plan of the Borrower or its Consolidated Subsidiaries or ERISA
Affiliate has been terminated, whether or not in a "standard termination" as
that term is used in Section 4041 of ERISA, nor has any Title IV Plan of any
Loan Party or any ERISA Affiliate (determined at any time within the last five
years) with material Unfunded Pension Liabilities been transferred outside of
the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of
any Loan Party or ERISA Affiliate (determined at such time); and (iv) the
Borrower or its Consolidated Subsidiaries or ERISA Affiliate have no material
liability with respect to post-retirement benefit obligations within the meaning
of the FASB 106.
55
Section 3.15. Agreements. Neither the Borrower nor any Subsidiary of
the Borrower is in breach of, or default with respect to, the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Material Agreement to which it is a party or subject or by
which it or any of its property or assets is bound in any respect and neither
the Borrower nor any Subsidiary of the Borrower has any knowledge of any breach,
default or anticipated by any other parties thereto, which breach or default, in
either case, either individually or when aggregated with all other breaches or
defaults, could have a Material Adverse Effect.
Section 3.16. Disclosure. Neither this Credit Agreement nor any other
Loan Document nor any other agreement, document, certificate, report, statement
or information furnished to the Administrative Agent or any New Term Lender by
or on behalf of any Loan Party in connection with any of the Loan Documents or
any of the transactions contemplated hereby, at the time it was furnished or
delivered, contained any untrue statement of a material fact regarding the Loan
Parties or their Subsidiaries or, when taken together with all such other
agreements, documents, certificates, reports, statements and information,
omitted to state a material fact necessary under the circumstances under which
it was made in order to make the statements contained herein or therein not
misleading; provided, that, with respect to projected financial information, the
Loan Parties represent only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time made after
consultation with the Loan Parties' financial advisor (if any at such time) and
reflect Borrower's good faith and reasonable estimates of the future financial
performance of Borrower and of the other information projected therein for the
period set forth therein. Such projected financial information is not a guaranty
of future performance and actual results may differ from those set forth
therein. The Liens granted to the Collateral Agent, on behalf of itself and the
New Term Lenders, pursuant to the Security Documents will at all times be fully
perfected second priority Liens, subject only to the first priority Liens of the
New Working Capital Facility Agent so long as any obligations or commitments are
outstanding under the New Working Capital Facility Agreement, in and to the
Collateral described therein, and subject further, as to priority, only to
Permitted Encumbrances. There is no fact known to any Loan Party or any
agreement, contract, instrument or corporate or other restriction to which any
such Loan Party or any of their respective assets is subject, or any charge,
judgment, decree, order or provision of Applicable Law (other than general
industry conditions or facts, agreements, contracts, instruments, restrictions,
charges, judgments, decrees, orders and provisions which have been disclosed to
the New Term Lenders in writing) that, individually or in the aggregate, has a
Material Adverse Effect, or could reasonably be expected in the future to have a
Material Adverse Effect.
Section 3.17. Environmental Matters. Except as set forth on Schedule
3.17 hereto, (a) there are no past or pending Environmental Claims against,
affecting or with respect to any Loan Party or any Subsidiary of any Loan Party
or any Premises, and no Loan Party is aware of, or could reasonably be expected
to be aware of any threatened Environmental Claims against, affecting or with
respect to any Loan Party or any Subsidiary of any Loan Party or any Premises,
and no Loan Party nor any Subsidiary of any Loan Party is aware of any facts or
circumstances which could reasonably be expected to form the basis for any such
Environmental Claim, except to the extent that any such Environmental Claims,
individually or in the aggregate, would not have a Material Adverse Effect;
56
(b) No Premises, or portion thereof, is currently or was formerly
used for the handling, storage, treatment, disposal, manufacture, processing or
generation of Hazardous Materials in violation of any Environmental Laws or
Environmental Permits, except to the extent that any such violation,
individually or in the aggregate, would not have a Material Adverse Effect;
(c) Each Loan Party and each Subsidiary of any Loan Party and, to the
knowledge of each Loan Party and each Subsidiary of a Loan Party, any tenants,
operators or occupants of any Premises have obtained and hold all necessary
Environmental Permits, except to the extent that any failure to hold any such
Environmental Permit, individually or in the aggregate, would not have a
Material Adverse Effect;
(d) Each Loan Party and each Subsidiary of any Loan Party is in
compliance with all terms, conditions and provisions of all applicable (1)
Environmental Permits, and (2) Environmental Laws, except to the extent that any
such non-compliance, individually or in the aggregate, would not have a Material
Adverse Effect;
(e) No Releases of Hazardous Materials have occurred at, from, in,
to, on, or under any Premises, and no Hazardous Materials are present in, on,
under or migrating to or from any Premises, except to the extent that any such
Releases or presence of Hazardous Materials, individually or in the aggregate,
would not have a Material Adverse Effect;
(f) Neither any Loan Party nor any Subsidiary of any Loan Party, nor
any predecessor of the Borrower or Subsidiary of the Borrower, nor any entity
previously owned by any Loan Party or Subsidiary of any Loan Party, has
transported or arranged for the treatment, storage, handling, disposal, or
transportation of any Hazardous Material to any location (other than any
Premises) which could result in an Environmental Claim against any Loan Party or
any Subsidiary of any Loan Party, except to the extent that any such activity,
individually or in the aggregate, would not have a Material Adverse Effect;
(g) No Premises is a current, or to the knowledge of any Loan Party
or any Subsidiary of any Loan Party, a proposed Environmental Clean-up Site, or
has been tested, proposed or nominated for listing on the National Priorities
List pursuant to CERCLA or any other Environmental Law, except to the extent as
would not have a Material Adverse Effect;
(h) There are no (1) underground storage tanks (active or abandoned),
(2) urea formaldehyde insulation, (3) polychlorinated biphenyl containing
equipment, (4) asbestos-containing material, or (5) lead-based paint located at
any Premises, except to the extent that the presence of any of the foregoing,
individually or in the aggregate, would not have a Material Adverse Effect; and
(i) All environmental investigations, studies, audits, tests, reviews
or other analyses conducted by, or on behalf of, and which are in the possession
of any Loan Party or any Subsidiary of any Loan Party with respect to any
Premises that disclose a violation of any Environmental Law have been disclosed
and made available to the Administrative Agent.
Section 3.18. Compliance with Laws. (a) No Loan Party nor any
Subsidiary of a Loan Party is in violation of any Applicable Law (including,
57
without limitation, any Environmental Law), any Environmental Permit or any
lease covering any Real Property Asset, except for such violations which in the
aggregate are not reasonably likely to have a Material Adverse Effect.
(b) No Loan Party is in violation of any zoning or building law,
ordinance, rule, regulation or restriction affecting a Real Property Asset or
any building permit, including, without limitation, any certificate of
occupancy, where such violation could reasonably be expected to result in a
Material Adverse Effect.
(c) The use of the proceeds of the New Term Loans and the performance
of the Loan Documents will not violate any Applicable Law.
Section 3.19. Delivery of Organizational and other Documents. The
documents delivered pursuant to Article 4 hereof constitute, as of the Effective
Date, all of the organizational documents (together with all amendments and
modifications thereof) of the Loan Parties as of the Effective Date. Each of the
Loan Parties represents that they have delivered to the New Term Lenders true,
correct and complete copies of each of the documents set forth in Article 4
hereof, as applicable.
Section 3.20. Insurance. Schedule 3.20 lists all insurance policies
of any nature maintained, as of the Effective Date, for current occurrences by
the Borrower and its Consolidated Subsidiaries, as well as a summary of the
terms of each such policy.
Section 3.21. Representations in Loan Documents True and Correct; No
Default. As of the dates when made and as of the Effective Date, each
representation and warranty of the Borrower and any other Loan Party contained
in any Loan Document is true and correct. No Default or Event of Default exists
under or with respect to any Loan Document.
Section 3.22. Deposit Accounts and Securities Accounts. Schedule 3.22
hereto sets forth a correct and complete list, as of the Effective Date, of all
Deposit Accounts and Securities Accounts or other similar accounts or
instruments owned or held by the Loan Parties including the following
information: the correct legal name of the institution where such account is
maintained, the party in whose name the account is maintained, and the account
number. All of such Deposit Accounts, Securities Accounts, other accounts and
instruments have been pledged to the Collateral Agent (for the benefit of itself
and the New Term Lenders) pursuant to the Security Agreement.
Section 3.23. Solvency. On and as of the Effective Date, after giving
effect to the Plan of Reorganization and the transactions contemplated thereby
(including, without limitation, the restructuring of the Pre-Petition Senior
Loans, the Indebtedness incurred or to be incurred by the Borrower and certain
of its Subsidiaries, and the Liens created, or to be created, in connection
therewith) and the other Related Transactions, the Borrower and each of its
Subsidiaries is and will be Solvent.
Section 3.24. Labor Matters. Except as set forth on Schedule 3.24, as
of the Effective Date (a) no strikes or other material labor disputes against
the Borrower and its Consolidated Subsidiaries are pending or, to the Borrower's
knowledge, threatened; (b) hours worked by and payment made to employees of each
of the Borrower and its Consolidated Subsidiaries materially comply with the
Fair Labor Standards Act and each other federal, state, local or foreign law
58
applicable to such matters; (c) all payments due from the Borrower and its
Consolidated Subsidiaries for employee health and welfare insurance have been
paid or accrued as a liability on the books of the Borrower and its Consolidated
Subsidiaries; (d) the Borrower and its Consolidated Subsidiaries are not a party
to or bound by any collective bargaining agreement, management agreement,
consulting agreement, employment agreement, bonus, restricted stock, stock
option, or stock appreciation plan or agreement or any similar plan, agreement
or arrangement (and, if requested by the Administrative Agent acting at the
written direction of the Required Lenders, true and complete copies of any
agreements described on Schedule 3.24 have been delivered to the Administrative
Agent); (e) there is no organizing activity involving the Borrower and its
Consolidated Subsidiaries pending or, to the Borrower's knowledge, threatened by
any labor union or group of employees; (f) there are no representation
proceedings pending or, to the Borrower's knowledge, threatened with the
National Labor Relations Board, and no labor organization or group of employees
of any of the Borrower and its Consolidated Subsidiaries has made a pending
demand for recognition; and (g) there are no material complaints or charges
against any of the Borrower and its Consolidated Subsidiaries pending or, to the
knowledge of the Borrower, threatened to be filed with any Governmental
Authority or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by any of the
Borrower and its Consolidated Subsidiaries of any individual.
Section 3.25. Government Contracts. Except as set forth on Schedule
3.25, as of the Effective Date, neither the Borrower nor its Consolidated
Subsidiaries are a party to any contract or agreement with any Governmental
Authority and neither the Borrower nor its Consolidated Subsidiaries' Accounts
are subject to the Federal Assignment of Claims Act (31 U.S.C. Section 3727) or
any similar state, or local or foreign law.
Section 3.26. Customer and Trade Relations. As of the Effective Date,
there exists no actual or, to the knowledge of the Borrower, threatened
termination or cancellation of, or any material adverse modification or change
in: the business relationship of the Borrower or its Consolidated Subsidiaries
with any customer or group of customers whose purchases during the preceding 12
months caused them to be ranked among the ten largest customers of the Borrower
or its Consolidated Subsidiaries; or the business relationship of the Borrower
or its Consolidated Subsidiaries with any supplier essential to its operations.
Section 3.27. Bonding;. Except as set forth on Schedule 3.27, as of
the Effective Date, neither the Borrower nor its Consolidated Subsidiaries are a
party to or bound by any surety bond agreement or binding requirement with
respect to products or services sold by it or any trademark or patent license
agreement with respect to products sold by it.
Section 3.28. Status of Borrower. Prior to the Effective Date, the
Borrower has not engaged in any trade or business.
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ARTICLE 4
CONDITIONS TO NEW TERM LOANS
Section 4.1. Conditions Precedent. The effectiveness of the Credit
Agreement and the obligations of the New Term Lenders to make the New Term Loans
are subject to the satisfaction in full, or waiver by all of the New Term
Lenders in writing, of each of the following conditions precedent:
(a) Credit Agreement; New Term Notes. The New Term Lenders shall have
received (i) executed counterparts of this Credit Agreement from each of the
parties hereto, and (ii) the New Term Notes executed on behalf of the Borrower,
dated the Effective Date, payable to the order of each of the New Term Lenders
and their registered assigns.
(b) Supporting Documents of the Borrower. Each of the New Term
Lenders shall have received:
(i) a copy of the amended and restated certificate of
incorporation of the Borrower, with evidence of its filing with the Secretary of
State of Delaware;
(ii) a certificate of the Secretary of State of Delaware, dated
as of April 25, 2003, certifying that the Borrower is a corporation duly formed,
validly existing and in good standing under the laws of the State of Delaware,
certifying that the annual reports of the Borrower have been filed and that the
franchise taxes due from the Borrower have been paid and a certificate of the
Secretary of State of Delaware dated as of April 25, 2003, certifying that the
documents attached thereto are true and correct copies of such documents as are
on file in the office of the Secretary of State of Delaware with respect to the
Borrower;
(iii) a certificate dated as of a recent date as to the good
standing of, up to date payment of Taxes by, and authority to do business of the
Borrower issued by the Secretary of State or other appropriate governmental
official of each jurisdiction listed on Schedule 3.1(a) hereto;
(iv) a certificate of the Secretary or Assistant Secretary of
the Borrower, dated the Effective Date, and certifying (A) that attached thereto
is a true and complete copy of the amended and restated by-laws of the Borrower
as in effect on the date of such certification; (B) that the certificate of
incorporation of the Borrower has not been amended since the date of the last
amendment thereto indicated on the applicable certificate of the Secretary of
State of Delaware furnished pursuant to clause (i) above, except to the extent
specified in such Secretary's certificate; (C) that this Credit Agreement and
each other Loan Document and all applicable ancillary documents and agreements
have been duly authorized pursuant to the Plan of Reorganization as confirmed by
the Confirmation Order; and (D) as to the incumbency and specimen signature of
each officer of the Borrower executing this Credit Agreement, the New Term
Notes, any other Loan Documents or any other document delivered in connection
herewith or therewith on behalf of the Borrower (such certificate to contain a
certification by another officer of the Borrower as to the incumbency and
signature of the officer signing the certificate referred to in this clause
(iv));
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(v) such additional supporting documents relating to the
Borrower as the Administrative Agent or their counsel, at the written direction
of the Required Lenders, or any New Term Lender may reasonably request.
(c) Supporting Documents of the Other Loan Parties. The New Term
Lenders shall have received:
(i) a copy of the amended and restated articles or certificate
of incorporation of each Loan Party (other than the Borrower), with evidence of
its filing with the Secretary of State (or other appropriate governmental
official) of such Loan Party's jurisdiction of incorporation;
(ii) a certificate of the Secretary of State or other
appropriate governmental official of such jurisdiction of incorporation, dated
as of a recent date certifying that each Loan Party (other than the Borrower) is
a corporation duly formed, validly existing and in good standing under the laws
of such jurisdiction of incorporation and that all Taxes due have been paid and
a certificate of the Secretary of State or other appropriate governmental
official of such jurisdiction of incorporation, dated as of a recent date
certifying that the documents attached thereto are true and correct copies of
such documents as are on file in the office of such official with respect to
each Loan Party (other than the Borrower);
(iii) a certificate dated as of a recent date as to the good
standing of, up to date payment of Taxes by and authority to do business of each
Loan Party (other than the Borrower) issued by the Secretary of State or other
appropriate governmental official of each jurisdiction in which such Loan Party
is qualified to do business as listed on Schedule 3.1(b) hereto;
(iv) a certificate of the Secretary or Assistant Secretary of
each Loan Party (other than the Borrower), dated the Effective Date, and
certifying (A) that attached thereto is a true and complete copy of the amended
and restated by-laws of such Loan Party as in effect on the date of such
certification; (B) that the articles or certificate of incorporation of such
Loan Party has not been amended since the date of the last amendment thereto
indicated on the certificate of the Secretary of State (or other appropriate
governmental official) furnished pursuant to clause (i) above, except to the
extent specified in such Secretary's certificate; (C) that this Credit Agreement
and each other Loan Document and all applicable ancillary documents and
agreements have been duly authorized pursuant to the Plan of Reorganization as
confirmed by the Confirmation Order; and (D) as to the incumbency and specimen
signature of each officer of such Loan Party executing this Credit Agreement,
any New Term Notes, any other Loan Documents or any other document delivered in
connection herewith or therewith on behalf of such Loan Party (such certificate
to contain certification by another officer of such Loan Party as to the
incumbency and signature of the officer signing the certificate referred to in
this clause (iv)); and
(v) such additional supporting documents relating to any Loan
Party (other than the Borrower) as the Administrative Agent or their counsel, or
any New Term Lender may reasonably request.
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(d) Merger Documents. The New Term Lenders shall have received the
certificates of merger and other corporate restructuring documents listed on
Schedule 4(d) hereto with such additional documents, as the New Term Lenders or
their counsel, or any New Term Lender may reasonably request.
(e) Confirmation Order. The New Term Lenders shall have received a
certified copy of an order (the "Confirmation Order") of the Bankruptcy Court
filed in the Cases on April 3, 2003, in substantially the form of Exhibit H,
which shall contain provisions providing for, inter alia, confirmation of the
Plan of Reorganization, which Confirmation Order shall have become a Final
Order, shall not have been amended or modified in any respect and shall not have
been stayed, reversed, vacated or rescinded in any respect.
(f) Plan of Reorganization and Disclosure Statement. The Plan of
Reorganization and Disclosure Statement shall be in the form filed with the
Bankruptcy Court, and any amendments, modifications and each of the exhibits to
the Plan of Reorganization and/or Disclosure Statement shall be in a form
satisfactory to the Debtors, the Reorganized Debtors, the DIP Agent, the
Pre-Petition Senior Lenders and the Creditors' Committee.
(g) New Common Stock. The Borrower shall have 25,000,000 shares of
common stock duly authorized, issued and outstanding or authorized and reserved
for issuance pursuant to the Plan of Reorganization ("New Common Stock").
(h) Distributions Under the Plan. Each of the New Term Lenders shall
have received the following: (i) cash in the amount of any accrued and unpaid
interest, fees and expenses (including, without limitation, letter of credit
fees, cash management fees, overdraft payments and all reasonable out-of-pocket
expenses and counsel and other advisory fees and expenses; (ii) its pro rata
share of 250,000 Shares of New Common Stock; (iii) its pro rata share of 271,429
New Series C Warrants; and (iv) the consideration due to each such New Term
Lender pursuant to Section 4.2(b)(iv) of the Plan of Reorganization that is
conditioned on whether the Newco Offering Minimum (as defined therein) has been
satisfied (to be provided).
(i)Opinions of Counsel. The Administrative Agent shall have received
the favorable written opinion of Xxxx Xxxxxxx & Xxxxxx LLP, counsel to the
Borrower and the Guarantors, dated the Effective Date and addressed to the
Administrative Agent, and the New Term Lenders, which opinion shall be
substantially in the form of Exhibit J hereto.
(j) Security Agreement and Pledge Agreement. The Borrower shall have
duly executed and delivered to the Collateral Agent, for the benefit of itself
and the New Term Lenders, (i) the Security Agreement in substantially the form
of Exhibit E-1 and shall have granted to the Collateral Agent, for the benefit
of itself and the New Term Lenders, a Lien on the Collateral pursuant thereto
which shall be a second priority Lien, subject only to the first priority Lien
of the New Working Capital Facility Agent so long as any obligations or
commitments are outstanding under the New Working Capital Facility Agreement, in
and to the Collateral described therein, and subject further, as to priority,
only to Permitted Encumbrances and (ii) the Pledge Agreement in substantially
the form of Exhibit E-2 and shall have pledged to the Collateral Agent the
Pledged Shares and shall have granted to the Collateral Agent, for the benefit
of itself and the New Term Lenders, a second priority perfected Lien on the
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Pledged Shares pursuant thereto, subject only to the first priority Lien of the
New Working Capital Facility Agent so long as any obligations or commitments are
outstanding under the New Working Capital Facility Agreement.
(k) Intellectual Property Security Agreements. The Borrower and the
other Loan Parties shall have duly executed and delivered to the Collateral
Agent for the benefit of itself and the Loan Parties, the Trademark Security
Agreements, Copyright Security Agreements and Patent Security Agreements, each
dated the Effective Date and signed by each Loan Party which owns Trademarks,
Copyrights and/or Patents, as applicable, all in form and substance reasonably
satisfactory to the Collateral Agent, together with all instruments, documents
and agreements executed pursuant thereto.
(l) New Working Capital Facility. The New Working Capital Facility
shall have been entered into by all parties thereto and all conditions to the
initial Loan thereunder shall have been satisfied in accordance with the terms
thereof.
(m) Financing Statements. The Borrower shall have delivered to the
Collateral Agent for pre-filing prior to the Effective Date (i) UCC-1 and/or
UCC-3 Financing Statements executed on behalf of the Borrower for such
pre-filing in all relevant jurisdictions in which it would be necessary or
desirable to make a filing in order to provide the [Collateral Agent] (for the
benefit of itself and the New Term Lenders) with a perfected security interest
in the Collateral and evidence of the filing of such UCC-1 and/or UCC-3
Financing Statements in all such relevant jurisdictions in which it would be
necessary or desirable to provide the Collateral Agent (for the benefit of
itself and the New Term Lenders) with a perfected security interest in the
Collateral; and (ii) such UCC-1 tax and judgment searches as the Administrative
Agent, the Collateral Agent or any of the New Term Lenders may require
reflecting that no filings relating to Liens, Taxes or judgments on, or related
to, the Collateral are of record in such jurisdictions except those related to
the Pre-Petition Credit Agreement, the DIP Facility or in favor of Bankers Trust
Company in connection with the TRI Facility (all of which shall be terminated on
the Effective Date) and Permitted Encumbrances. For purposes hereof, the "TRI
Facility" shall have the meaning set forth in the New Working Capital Facility.
(n) Cash Management System; Blocked Account Agreements. The New Term
Lenders shall have received from the Borrower evidence satisfactory to the New
Term Lenders that, as of the Effective Date, Cash Management System complying
with Schedule 2.15 to the Credit Agreement have been established and are
currently being maintained in the manner set forth in such Schedule 2.15,
together with copies of the duly executed Blocked Account Agreements and lock
box agreements, reasonably satisfactory to the Required Lenders, with the banks
as required by the Security Agreement and such Schedule 2.15.
(o) Payment of Fees. The Borrower shall have paid to (i) the
Administrative Agent and the Collateral Agent Fees owed under and pursuant to
this Credit Agreement and the Fee Letter, (ii) the Pre-Petition Senior Lenders
and any agent with respect to the Pre-Petition Credit Agreement accrued
interest, fees, expenses and other amounts owing under, pursuant to or in
connection with the Pre-Petition Credit Agreement and any other documents,
agreements or instruments executed and delivered in connection therewith or
pursuant thereto and any amounts outstanding under the Pre-Petition Letters of
Credit together with accrued interest therein and any fees, expenses and other
amounts owing pursuant to the Pre-Petition Letters of Credit, (iii) the DIP
63
Agent, the principal amount outstanding under the DIP Facility together with
accrued interest thereon, and any fees, expenses or other amounts owing under,
pursuant to or in connection with the DIP Facility, and any amounts outstanding
under the DIP Letters of Credit together with accrued interest thereon and any
fees, expenses and other amounts owing pursuant to the DIP Letters of Credit;
and (iv) to all legal counsel and other professional advisors, fees,
disbursements and all costs and internally allocated charges in connection with
the preparation and negotiation of this Credit Agreement and the other Loan
Documents and the verification of financial data, conducting audits or field
examinations and analysis of the transactions contemplated hereby and by the
other Loan Documents.
(p) Corporate and Judicial Proceedings. All corporate and judicial
proceedings and all instruments and agreements in connection with the
transactions among the Borrower, the Administrative Agent, the Collateral Agent
and the New Term Lenders contemplated by this Credit Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent, the
Collateral Agent, and the New Term Lenders, as the case may be, and the New Term
Lenders shall have received all information and copies of all documents and
papers, including records of corporate and judicial proceedings, which the
Administrative Agent may have reasonably requested pursuant to the written
direction of the Required Lenders in connection therewith, such documents and
papers where appropriate to be certified by proper corporate, governmental or
judicial authorities.
(q) No Material Adverse Change. There shall not have occurred since
December 31, 2002, a material adverse change, or development or event involving
a prospective change, which, in the reasonable judgment of the Required Lenders,
could have a Material Adverse Effect or could materially adversely affect the
rights and remedies of the Administrative Agent or any of the New Term Lenders
under the Loan Documents, and none of the Administrative Agent or any of the New
Term Lenders shall have become aware of any theretofore previously undisclosed
materially adverse information with respect to the matters described in this
clause (q);
(r) Opening EBITDA. The Borrower and its Consolidated Subsidiaries
shall have EBITDA for the trailing twelve months ending on April 30, 2003 of not
less than $50,000,000.
(s) Absence of Litigation. There shall be no action, suit or
proceeding by any Governmental Authority or other Person or investigation by any
Governmental Authority or other Person pending or known by the Borrower to be
threatened with respect to the Borrower or any of its Consolidated Subsidiaries
relating to the transactions contemplated hereunder which if adversely
determined could reasonably be expected to have a Material Adverse Effect, and
there shall be no judgment, order, injunction or other restraint prohibiting any
of the transactions contemplated by any of the Loan Documents;
(t) Information. The New Term Lenders shall have received such
information (financial or otherwise) as may be reasonably requested by the
Required Lenders.
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(u) Closing Documents. The New Term Lenders shall have received all
documents required by this Agreement reasonably satisfactory in form and
substance to the Required Lenders.
(v) Payoff Letter; Termination Statements. The New Term Lenders shall
have received copies of a duly executed payoff letter, in form and substance
reasonably satisfactory to the New Term Lenders, by and between all parties to
the DIP Facility loan documents evidencing repayment in full of all indebtedness
outstanding and other obligations under the DIP Facility, together with (a)
UCC-3 or other appropriate termination statements, in form and substance
satisfactory to the New Term Lenders, manually signed by the agent for the DIP
Facility lenders releasing all liens of the DIP Facility Agent and the lenders
thereunder upon any of the personal property of each Loan Party, and (b)
termination of all blocked account agreements, bank agency agreements or other
similar agreements or arrangements in favor of the DIP Facility Agent or the
lenders thereunder or otherwise relating to the DIP Facility.
(w) Pre-Petition Letters of Credit; DIP Letters of Credit. On the
Effective Date, with respect to outstanding Pre-Petition Letters of Credit and
the DIP Letters of Credit, (i) such Pre-Petition Letters of Credit and DIP
Letters of Credit shall have been returned to the issuer and marked cancelled,
or (ii) the issuer of such Pre-Petition Letters of Credit and such DIP Letters
of Credit shall have been provided with (x) cash collateral (in Dollars, in
immediately available funds) in an amount equal to 105% of the face amount of
such Letters of Credit outstanding on the Effective Date, or (y) back-to-back
Letters of Credit in an amount equal to 105% of the face amount of such
Pre-Petition and DIP Letters of Credit outstanding on the Effective Date, in
form and substance, and from an institution acceptable, to the respective
issuer.
(x) Warrant Agreements. The New Warrant Agreements shall be entered
into by all parties thereto and the New Warrants shall have been issued
thereunder, respectively.
(y) Intercreditor Agreement. The Intercreditor Agreement dated as of
the Effective Date shall have been duly executed and delivered by the parties
thereto.
(z) Waivers. The New Term Lenders shall have received any Landlord
Waivers and consents, Bailee Letters and mortgage agreements, as applicable,
required by Section 5.12 hereof and in form and substance reasonably
satisfactory to the Required Lenders.
(aa) Insurance. The New Term Lenders shall have received satisfactory
evidence that the insurance policies required by Section 5.5 hereof are in full
force and effect, together with appropriate evidence showing loss payable and/or
additional insured clauses or endorsements in favor of the Administrative Agent
on behalf of the New Term Lenders.
(bb) Conditions to Plan of Reorganization. All conditions to the
effectiveness of the Plan of Reorganization that are not set forth in this
Article 4 but are otherwise set forth in Section 11.2 of such Plan of
Reorganization shall have been satisfied or waived.
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ARTICLE 5
AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Obligation remains unpaid
or unsatisfied, each Loan Party agrees that, unless the Required Lenders shall
otherwise consent in writing, each of them will, and will cause each of its
Consolidated Subsidiaries to:
Section 5.1. Financial Statements and Other Information. Furnish or
cause to be furnished to each of the New Term Lenders (except as otherwise
explicitly provided in this Section 5.1): (a) Annual Audited Financial
Statements. As soon as available, but in any event, within ninety (90) days
after the end of each Fiscal Year, audited Financial Statements for Borrower and
its Subsidiaries on a consolidated basis, consisting of a balance sheet as of
the last day of the Fiscal Year and statements of income and cash flows, setting
forth in comparative form in each case the figures for the previous Fiscal Year,
which Financial Statements shall be prepared in accordance with GAAP and
certified without qualification, by an independent certified public accounting
firm of national standing or otherwise acceptable to the Required Lenders. Such
Financial Statements shall be accompanied by (i) a reconciliation of the
Compliance Certificate (as defined below) previously delivered in connection
with the Financial Statements for December of each year, (ii) a report from such
accounting firm to the effect that, in connection with their audit examination,
nothing has come to their attention to cause them to believe that a Default or
an Event of Default has occurred with respect to the financial covenants (or
specifying those Defaults and Events of Default that they became aware of), it
being understood that such audit examination extended only to accounting matters
and that no special investigation was made with respect to the existence of
Defaults or Events of Default and whether in their opinion the calculations set
forth in the Compliance Certificate to the extent derived from data contained in
the accounting records of the Borrower and its Consolidated Subsidiaries, have
been determined in accordance with relevant provisions of this Credit Agreement,
(iii) the annual letters to such accountants in connection with their audit
examination detailing contingent liabilities and material litigation matters,
and (iv) the Compliance Certificate of the Chief Executive Officer or Chief
Financial Officer of the Borrower in substantially the form of Exhibit K hereto
(a "Compliance Certificate"), stating, among other things, that all such
Financial Statements present fairly in all material respects, in accordance with
GAAP, the financial position, results of operations and statements of cash flows
of the Borrower and its Subsidiaries on a consolidated and consolidating basis,
as the case may be, as at the end of such Fiscal Year and for the period then
ended, that there was no Event of Default in existence as of such time or, if an
Event of Default has occurred and is continuing, describing the nature thereof
and all efforts undertaken to cure such Event of Default and demonstrating, in
reasonable detail, and with appropriate calculations and computations in all
respects satisfactory to the Required Lenders compliance with the provisions of
Sections 6.9 through 6.12 hereof and including the amount of Consolidated
Capital Expenditures made pursuant to Section 6.9 hereof.
(b) Monthly Financials. As soon as available, but in any event,
within thirty (30) days after the end of each Fiscal Month, financial
information regarding the Borrower and its Subsidiaries, certified by a
Financial Officer of the Borrower, consisting of (i) consolidated and
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consolidating unaudited balance sheets as of the close of such Fiscal Month and
the related consolidated and consolidating statement of income and consolidated
statement of cash flows for the Fiscal Month and for that portion of the Fiscal
Year ending as of the close of such Fiscal Month, income and consolidated
statement of cash flows for such Fiscal Month, and, in each case, setting forth
in comparative form the figures for the corresponding periods in the prior
Fiscal Year and the corresponding periods in the budget for such Fiscal Year,
all prepared in accordance with GAAP (subject to normal year-end adjustments);
and (ii) a summary of the outstanding balance of all intercompany Indebtedness
as of the last day of that Fiscal Month. Such financial information shall be
accompanied by the certification of a Financial Officer of the Borrower
Representative that (i) such financial information presents fairly in all
material respects, in accordance with GAAP, (subject to normal year-end
adjustments) the financial position and results of operations of the Borrower
and its Subsidiaries, on a consolidated and consolidating basis, in each case as
at the end of such Fiscal Month and for that portion of the Fiscal Year then
ended and (ii) any other information presented is true, correct and complete in
all material respects and that there was no Event of Default in existence as of
such time or, if an Event of Default has occurred and is continuing, describing
the nature thereof and all efforts undertaken to cure such Event of Default. In
addition, the financial information for the last month of each Fiscal Quarter
shall be accompanied by (A) a Compliance Certificate and (B) a management
discussion and analysis that includes a comparison to budget for that Fiscal
Quarter and a comparison of performance for that Fiscal Quarter to the
corresponding period in the prior year.
(c) Operating Plan. As soon as available, but not later than thirty
(30) days before the end of each Fiscal Year, an annual operating plan for the
Borrower on a consolidated and consolidating basis, approved by the Board of
Directors of the Borrower, for the following Fiscal Year, which (i) includes a
statement of all of the material assumptions on which such plan is based, (ii)
includes monthly balance sheets, income statements and statements of cash flows
for the following year and (iii) integrates sales, gross profits, operating
expenses, operating profit and cash flow projections, all prepared on the same
basis and in similar detail as that on which operating results are reported,
and, in each case, representing management's good faith estimates of future
financial performance based on historical performance, and future operating
plans.
(d) Intentionally Omitted.
(e) Default Notices. Promptly after obtaining knowledge of the
occurrence of any Default or Event of Default, a statement of an Authorized
Officer that is the president, chief executive officer, treasurer, assistant
treasurer, controller or chief financial officer of the Borrower setting forth
details of such Default or Event of Default and the action which the Borrower
has taken or proposes to take with respect thereto.
(f) Litigation Matters. Promptly and in any event within five (5)
Business Days after becoming aware of (x) the occurrence of any development with
respect to any litigation, action or proceeding described in Section 3.10 which
could reasonably be expected to have a Material Adverse Effect or (y) the
commencement of any litigation, action or proceeding of the type described in
Section 3.10, notice thereof and of the action which the Borrower has taken or
proposes to take with respect thereto.
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(g) Excess Cash Flow Certificate. On the earlier of the date of
delivery by the Borrower to the Administrative Agent and the New Term Lenders of
the Financial Statements required to be delivered pursuant to Section 5.1(a)
covering such Fiscal Year and 90 days after the end of such Fiscal Year, an
Excess Cash Flow Certificate setting forth the calculation of Excess Cash Flow
based upon such Fiscal Year's audited Financial Statements then delivered.
(h) Audits. Promptly upon their becoming available, copies of all
financial audits, studies, reports or evaluations prepared for, or submitted to,
any of the Borrower or its Consolidated Subsidiaries by any outside professional
firm or service, including, without limitation, any comment letter submitted by
the Borrower's accountants to management in connection with their annual audit
and management's and/or the Borrower's or any Subsidiary of the Borrower's
response thereto, if any.
(i) ERISA Events. As soon as possible and, in any event, within ten
(10) days after a Loan Party or an ERISA Affiliate knows or has reason to know
of the occurrence of any of the following, a certificate of an Authorized
Officer of the Borrower setting forth the full details as to such occurrence and
the action, if any, that such Loan Party or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given or
filed by such Loan Party, the Plan Administrator or such ERISA Affiliate to or
with the PBGC or any other Governmental Authority, or a Plan or Multiemployer
Plan participant, and any notices received by such Loan Party or ERISA Affiliate
from the PBGC or any other Governmental Authority: that a Reportable Event has
occurred (except to the extent that the Borrower has previously delivered a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan or
Multiemployer Plan; that any contribution required to be made with respect to a
Plan or Multiemployer Plan has not been timely made; that a Plan or
Multiemployer Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Multiemployer
Plan; that a Loan Party or an ERISA Affiliate will or may incur any liability
(including any indirect, contingent, or secondary liability) to or on account of
the termination of or withdrawal from a Plan or Multiemployer Plan under Section
4062, 4063, 4064, 4069, 4201, 4204, or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i)
or 502(1) of ERISA or with respect to a group health plan (as defined in Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that a Loan Party
or Subsidiary of a Loan Party may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan.
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(j) Material Adverse Effect. Promptly and in any event within five
(5) Business Days after an Authorized Officer that is the president, chief
financial officer, chief executive officer or treasurer of the Borrower becomes
aware of or obtains knowledge of the occurrence of a Material Adverse Effect or
of any event, action, development, condition or circumstance which could
reasonably be expected to have Material Adverse Effect, notice thereof and of
the action which the Borrower has taken or proposes to take with respect
thereto.
(k) Management Letters. To the New Term Lenders, within five (5)
Business Days after receipt thereof by any Loan Party or any Subsidiary of such
Loan Party, copies of all management letters, exception reports or similar
letters or reports received by such Loan Party from its independent certified
public accountants.
(l) SEC Filings and Press Releases. Promptly upon there becoming
available, copies of: (i) all Financial Statements, reports, notices and proxy
statements made publicly available by each Loan Party to its security holders;
(ii) all regular and periodic reports and all registration statements and
prospectuses, if any, filed by any such Loan Party with any securities exchange
or with the Securities and Exchange Commission or any governmental or private
regulatory authority; and (iii) all press releases and other statements made
available by the Borrower or any of its Consolidated Subsidiaries to the public
concerning material changes or developments in the business of any such Person.
(m) Subordinated Debt and Equity Notices. As soon as practicable,
copies of all material written notices given or received by the Borrower or
other Loan Party with respect to any Subordinated Debt or Stock of such Person,
and, within two (2) Business Days after the Borrower or any other Loan Party
obtains knowledge of any matured or unmatured event of default with respect to
any Subordinated Debt, notice of such event of default.
(n) Intentionally omitted.
(o) Insurance Notices. Promptly, and in any event within five (5)
Business Days, disclosure of losses or casualties required by Section 5.5.
(p) Lease Default Notices. (i) Within two (2) Business Days after
receipt thereof, copies of any and all default notices received under or with
respect to any leased location or public warehouse where Collateral is located,
(ii) monthly within three (3) Business Days after payment thereof, evidence of
payment of lease or rental payments as to each leased or rented location for
which a Landlord Waiver or Bailee Letter has not been obtained and (iii) such
other notices or documents as the Administrative Agent may reasonably request.
(q) Lease Amendments. Within two (2) Business Days after receipt
thereof, copies of all material amendments to real estate leases.
(r) Hedging Agreements. Within two (2) Business Days after entering
into such agreement or amendment, copies of all interest rate, commodity or
currency hedging agreements or amendments thereto.
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(s) New Working Capital Facility. Promptly, and in any event, within
three (3) Business Days of the occurrence of any of the following under the New
Working Capital Facility, the Borrower shall deliver, or cause the New Working
Capital Facility Agent to deliver, to the Administrative Agent and each of the
New Term Lenders copies of any amendment, modification, waiver, consent or
supplement to the New Working Capital Facility Agreement or any other agreement,
document or instrument executed in connection therewith or pursuant thereto.
(t) Other Documents. From time to time such additional information
regarding (i) the operations, business affairs and/or financial condition of any
of the Borrower and any of its Consolidated Subsidiaries, (ii) the compliance
with the terms of any Loan Document, (iii) any of the Collateral, in each case,
at the written direction of the Required Lenders including, without limitation,
copies of all management projections prepared at the reasonable request of the
Administrative Agent at the written direction of the Required Lenders or the New
Working Capital Facility Agent.
All other notices and information required to be provided to the New
Term Lenders pursuant to this Section 5.1 shall be deemed delivered pursuant to
this Section 5.1 when delivered to the Administrative Agent; provided that the
Borrower shall deliver paper copies of any notice or information to any New Term
Lender directly that requests such delivery.
Section 5.2. Existence; Compliance with Laws; Conduct of Business.
(a) Except as otherwise expressly permitted by Section 6.7 hereof, do or cause
to be done all things necessary (i) to preserve, renew and keep in full force
and effect its existence, Proprietary Rights, licenses, permits, privileges,
franchises, certificates, authorization, accreditations, easements, Rights of
Way and other rights, consents and approvals in each case, which are material to
the conduct of the business of the Borrower and any other Loan Party, (ii)
continue to conduct its business substantially as now conducted or otherwise
permitted hereunder; (iii) transact business only in such corporate and trade
names as are set forth in Schedule 5.2 hereof; and (iv) to comply in all
material respects with all Applicable Laws and all applicable restrictions or
Requirements imposed by, any Governmental Authority (including, without
limitation, Environmental Laws, all zoning and building codes and ERISA) or any
other Requirements except where the necessity of compliance therewith is being
currently contested in good faith by the appropriate proceedings, except to the
extent that the failure to comply could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; provided, in each
case, that the Borrower and applicable Subsidiary of the Borrower shall have set
aside on its books reasonable and appropriate reserves (the presentation of
which is segregated to the extent required by GAAP) with respect thereto if such
reserves are required by GAAP.
(b) Obtain or make all further authorizations, approvals, orders,
consents, licenses, registration or filings from or with any Governmental
Authority and take any other action required for the performance by any Loan
Party of this Credit Agreement and the other Loan Documents to which it is a
party.
Section 5.3. Maintenance of Properties. Keep its tangible properties
(including, without limitation, any Real Property Assets) in good repair,
working order and condition (ordinary wear and tear excepted) and, from time to
time (i) subject to the terms hereof, make all necessary and proper repairs,
70
renewals, replacements, additions and improvements thereto and (ii) comply at
all times with the provisions of all leases to which it is a party so as to
prevent any loss or forfeiture thereof or thereunder unless compliance therewith
is being currently contested in good faith by appropriate proceedings and
reasonable and appropriate reserves have been established in accordance with
GAAP.
Section 5.4. Notice of Material Events with Respect to the
Collateral.
(a) Promptly upon, but in any event within two (2) Business Days
after, an Authorized Officer or any other executive officer of any Loan Party
obtaining knowledge of (i) any event which could reasonably be expected to
materially decrease the value of the Collateral, (ii) any Person giving any
notice to any Loan Party or taking any other action to enforce remedies with
respect to a claimed Default or event or condition of the type referred to in
paragraphs (g), (h) or (i) of Article 7 hereof, (iii) any material portion of
the Collateral is damaged or destroyed, give written notice thereof to the
Collateral Agent and the Administrative Agent specifying the nature and period
of existence of any such condition or event, or specifying the notice given or
action taken by such Person and the nature of such claimed Default or event or
condition and what action any Loan Party has taken, is taking and proposes to
take with respect thereto.
(b) Promptly upon any change proposed by the Borrower or any of its
Consolidated Subsidiaries with respect to all or any portion of the Cash
Management System, the Borrower or any other Loan Party shall deliver written
notice thereof to the Administrative Agent and the Collateral Agent whereupon
the Administrative Agent shall have the right for fifteen (15) Business Days
from the date of its receipt of such notice (hereinafter referred to as the
"Rejection Period") at the written direction of the Required Lenders, to deliver
written notice to the Borrower or any such other Loan Party of its objection to
the proposed change; provided that neither the Borrower nor any of its
Consolidated Subsidiaries shall have any right to make the proposed change with
respect to the Cash Management System until the Rejection Period expires without
the Required Lenders rejecting the proposed charge; provided further that the
Required Lenders shall not unreasonably delay their response to the Borrower or
any of its Consolidated Subsidiaries nor shall they unreasonably reject the
Borrower's proposed change.
(c) Provide such notices as are required by the terms and provisions
of all other Loan Documents, including, without limitation, Section 6 of the
Security Agreement.
Section 5.5. Insurance; Damage to or Destruction of Collateral.
(a) The Borrower and its Consolidated Subsidiaries shall, at their
sole cost and expense, maintain policies of insurance which policies, with
respect to the Foreign Subsidiaries of the Borrower, shall be in such amounts
and provide such coverage as is reasonable and customary in each applicable
foreign jurisdiction, and, with respect to the Borrower and the other Loan
Parties, shall at all times be substantially similar to the policies described
on Schedule 3.20, as in effect on the date hereof, or otherwise, in form and
amounts and with insurers reasonably acceptable to the Required Lenders. Such
policies of insurance listed on Schedule 3.20 with respect to those policies for
the benefit of the Loan Parties (or the loss payable and additional insured
endorsements delivered to the Administrative Agent with respect thereto) shall
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contain provisions pursuant to which the insurer agrees to provide thirty (30)
days prior written notice to the Administrative Agent in the event of any
non-renewal, cancellation or amendment of any such insurance policy. If the
Borrower or any of its Consolidated Subsidiaries at any time or times hereafter
shall fail to obtain or maintain any of the policies of insurance required
above, or fail to pay all premiums relating thereto, the Administrative Agent,
at the written direction and expense of the Required Lenders, shall, subject to
the terms of the Intercreditor Agreement, at any time or times thereafter obtain
and maintain such policies of insurance and pay such premiums and take any other
action with respect thereto that the Required Lenders deem advisable. The
Administrative Agent shall have no obligation without the instruction of the
Required Lenders to obtain insurance for the Borrower or any of its Consolidated
Subsidiaries or pay any premiums therefor. By doing so, the Required Lenders
shall not be deemed to have waived any Default or Event of Default arising from
the failure by the Borrower or any of its Consolidated Subsidiaries to maintain
such insurance or pay any premiums therefor. All sums so disbursed, including
reasonable attorneys' fees, court costs and other charges related thereto, shall
be payable on demand by the Borrower to the Administrative Agent and shall be
additional Obligations hereunder secured by the Collateral.
(b) The Loan Parties shall deliver to the Collateral Agent,
endorsements to (i) all "All Risk" and business interruption insurance naming
the Administrative Agent, on behalf of the New Term Lenders, as loss payee, and
(ii) all general liability and other liability policies naming the
Administrative Agent, on behalf of the New Term Lenders, as additional insured.
Subject to the terms of the Intercreditor Agreement, each of the Borrower and
each of the other Loan Parties irrevocably makes, constitutes and appoints the
Administrative Agent (and all officers, employees or agents designated by the
Administrative Agent), so long as any Event of Default has occurred and is
continuing or the anticipated insurance proceeds exceed $1,000,000, as the true
and lawful agent and attorney-in-fact for the Borrower and each of the other
Loan Parties for the purpose of making, settling and adjusting claims under such
"All Risk" policies of insurance, endorsing the name of the Borrower or any of
the other Loan Parties on any check or other item of payment for the proceeds of
such "All Risk" policies of insurance and for making all determinations and
decisions with respect to such "All Risk" policies of insurance. The
Administrative Agent shall have no implied duties and shall exercise any rights
or powers granted to it pursuant to the foregoing power-of-attorney pursuant to
the written instructions of the Required Lenders. An Authorized Officer shall
promptly notify the Administrative Agent of any loss, damage, or destruction to
the Collateral in the amount of $1,000,000 or more, whether or not covered by
insurance. After deducting from such proceeds (i) the expenses incurred by the
Administrative Agent in the collection or handling thereof, and (ii) amounts
required to be paid to creditors (other than the New Term Lenders) having
Permitted Encumbrances, the Administrative Agent shall at the written direction
of the Required Lenders, either remit such proceeds to the New Working Capital
Facility Agent to be applied in accordance with the terms of the Intercreditor
Agreement or permit or require the Borrower or any of the other Loan Parties, as
applicable, to use such money, or any part thereof, to replace, restore, repair
or rebuild the Collateral in a diligent and expeditious manner with material and
workmanship of substantially the same quality as existed before the loss, damage
or destruction. Notwithstanding the foregoing, if the casualty giving rise to
such insurance proceeds could not reasonably be expected to have a Material
Adverse Effect and such insurance proceeds do not exceed $1,000,000 in the
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aggregate, the applicable Loan Party may replace, restore, repair or rebuild the
property; provided that if the applicable Loan Party shall not have completed or
entered into binding agreements, within 180 days of such casualty, to complete
such replacement, restoration, repair or rebuilding, the Administrative Agent
shall remit such insurance proceeds to the New Working Capital Facility Agent to
be applied in accordance with the terms of the Intercreditor Agreement. To the
extent not used to replace, repair, restore or rebuild the Collateral, such
insurance proceeds shall be applied in accordance with the terms of the
Intercreditor Agreement.
Section 5.6. Books and Records. (a) Maintain or cause to be
maintained at all times, in accordance with GAAP, true and complete books and
records of its financial operations.
(b) Provide the Administrative Agent and its representatives (at the
Borrower's expense) or any New Term Lender and its representatives (at such New
Term Lender's expense provided no Event of Default has occurred and is
continuing, otherwise at the Borrower's expense) access to such books and
records and to any of its properties or assets upon reasonable prior notice and
during regular business hours in order that such Administrative Agent and/or
such New Term Lender (as applicable) may make such audits and examinations and
make abstracts from such books, accounts, records and other papers of a Loan
Party pertaining to the Collateral, and upon reasonable prior notification to
the Borrower, permit such Administrative Agent, or such New Term Lender (as
applicable) or its respective representatives to discuss the affairs, finances
and accounts with, and be advised as to the same by, officers and independent
accountants, all as such Administrative Agent or such New Term Lender (as
applicable) may deem appropriate for the purpose of verifying any report
delivered by any Loan Party to the Administrative Agent and/or the New Term
Lenders pursuant to this Credit Agreement or for otherwise ascertaining
compliance with this Credit Agreement or any other Loan Document.
Section 5.7. Intentionally Omitted.
Section 5.8. Observance of Agreements. Duly observe and perform all
material terms and conditions of any Material Agreement of the applicable Loan
Party, and diligently protect and enforce the rights of the Loan Parties under
all such agreements in a manner consistent with prudent business judgment.
Section 5.9. Taxes and Charges; Obligations in the Ordinary Course of
Business.
(a) The Borrower and each of its Consolidated Subsidiaries shall pay
and discharge or cause to be paid and discharged promptly all Charges payable by
it, including (i) Charges imposed upon it, its income and profits, or any of its
property (real, personal or mixed) and all Charges with respect to tax, social
security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all
storage or rental charges payable to warehousemen or bailees, in each case,
before any thereof shall become past due, except in the case of clauses (ii) and
(iii) where the failure to pay or discharge such Charges would not result in
aggregate liabilities in excess of $200,000.
(b) The Borrower and each of its Consolidated Subsidiaries may in
good faith contest, by appropriate proceedings, the validity or amount of any
73
Charges, Taxes or claims described in Section 5.9(a); provided that (i) adequate
reserves with respect to such contest are maintained on the books of the
Borrower and any of its Subsidiaries, in accordance with GAAP; (ii) no Lien
shall be imposed to secure payment of such Charges in excess of $1,000,000
(other than payments to warehousemen and/or bailees) that is superior to any of
the Liens securing the Obligations and such contest is maintained and prosecuted
continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; and (iv) the Borrower or any
such Consolidated Subsidiary shall promptly pay or discharge such contested
Charges, Taxes or claims and all additional charges, interest, penalties and
expenses, if any, and shall deliver to Agent evidence reasonably acceptable to
the Administrative Agent of such compliance, payment or discharge, if such
contest is terminated or discontinued adversely to the Borrower and any such
Consolidated Subsidiaries or the conditions set forth in this Section 5.9(b) are
no longer met.
Section 5.10. Environmental Laws. (a) Promptly notify the
Administrative Agent upon any Loan Party or any Subsidiary of a Loan Party
becoming aware of any violation or potential violation or non-compliance with,
or liability or potential liability under, any Environmental Laws which, when
taken together with all other pending violations of, or liability under,
Environmental Law, could reasonably be expected to have a Material Adverse
Effect, and promptly furnish to the Administrative Agent all notices of any
nature which any Loan Party or any Subsidiary of a Loan Party may receive from
any Governmental Authority or other Person with respect to any violation, or
potential violation or non-compliance with, or liability or potential liability
under, any Environmental Laws which, in any case or when taken together with all
such other notices, could reasonably be expected to have a Material Adverse
Effect.
(b) Comply with and use reasonable efforts to ensure compliance by
all tenants and subtenants with all Environmental Laws and Environmental
Permits, and obtain and comply in all respects with and maintain and use
reasonable efforts to ensure that all tenants and subtenants obtain and comply
in all respects with and maintain any and all licenses, approvals, registrations
or permits (including all Environmental Permits) required by Environmental Laws,
except where failure to do so is not reasonably likely to have a Material
Adverse Effect.
(c) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under all
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities, except where failure to
do so would not have a Material Adverse Effect. Any order or directive whose
lawfulness is being contested in good faith by appropriate proceedings shall be
considered a lawful order or directive when such proceedings, including any
judicial review of such proceedings, have been finally concluded by the issuance
of a final non-appealable order; provided, however, that the appropriate Loan
Party shall have set aside on its books reasonable reserves (the presentation of
which is segregated to the extent required by GAAP) with respect thereto.
(d) Indemnify, defend and hold harmless the Administrative Agent, the
Collateral Agent, the New Term Lenders, and their respective Related Parties and
shareholders, successors and assigns from and against any liability, fine,
penalty, loss, damage, obligation, claim, suit, settlement, action, expense and
cost including, but not limited to, reasonable attorneys' fees and disbursements
74
(including cost of in house counsel) and, environmental consultant fees and
expenses, investigation experts, laboratory and litigation costs, all sums paid
in settlement of claims and any fees and expenses incurred in enforcing this
indemnity or collecting any sums hereunder), arising out of or relating to: (A)
the presence, use, generation, disposal, storage, handling, treatment,
processing, transporting or Release of any Hazardous Materials at, to, on, under
or from any Premises; (B) any violation of any Environmental Law or
Environmental Permit by any Loan Party; (C) the transportation or the
arrangement for the transportation, handling, treatment, or disposal of any
Hazardous Materials to any location other than any Premises by or on behalf of
any Loan Party; (D) any Environmental Claim relating to any Premises or any
activities conducted at any Premises; (E) any costs and expenses associated with
any Premises being an Environmental Clean-up Site; and (F) any breach of any
environmental representation or covenant in this Credit Agreement or any other
Loan Document (but excluding any such liability, fine, penalty, loss, damage,
suit, settlement, action, expense or cost of an indemnified party (x) to the
extent primarily caused by the gross negligence or willful misconduct of such
indemnified party as determined by a final judgment of a court of competent
jurisdiction or (y) relating to a violation of any Environmental Law or
Environmental Permit attributable solely to the presence or Release of Hazardous
Materials that first occurs after a transfer of the affected Premises to an
indemnified party by foreclosure, deed-in-lieu of foreclosure or other similar
transfer)). The obligations of the Borrower under this Section 5.10(d) shall
survive the Bank Credit Termination Date, the termination of this Credit
Agreement and the payment of the Obligations.
Section 5.11. Subsidiaries. Subject to the terms of the Intercreditor
Agreement and the Pledge Agreement, deliver to the Administrative Agent,
reasonably promptly after formation or acquisition of any new Domestic
Subsidiary (but in any event no later than ten (10) Business Days after such
formation or acquisition and in all cases, prior to commencement of operations
by such Subsidiary), an Instrument of Assumption and Joinder executed by such
Subsidiary, appropriate UCC-1 financing statements, Mortgages and/or other
Security Documents, (together with all applicable Lien searches), organizational
documents and written opinions of counsel, and certificates or other instruments
(if any) representing 100% of the Equity Interests of any Domestic Subsidiary
that is or will be directly owned by any Loan Party together with an undated
stock power (or other appropriate document) executed in blank for each such
certificate or other instrument; provided, however, that with respect to any
Subsidiary that is a Foreign Subsidiary and does not conduct any operations
within the United States, that is or will be directly owned by any Loan Party,
the Borrower or any such Loan Party must arrange for the pledge of the Equity
Interests of such Foreign Subsidiary; provided that 100% of the total
outstanding non-voting Equity Interest of such Foreign Subsidiary shall be
pledged, but no more than 65% of the total outstanding voting Equity Interests
of such Foreign Subsidiary shall be required to be pledged by the Loan Parties
pursuant to this Section 5.11.
Section 5.12. Real Property Assets. (a) The Borrower and each of its
Consolidated Subsidiaries that proposes to purchase or otherwise acquire a fee
ownership interest in a Real Property Asset subsequent to the Effective Date
shall (i) promptly, but in any event within ten (10) Business Days, of any such
proposed purchase or other acquisition, provide written notice thereof to the
Administrative Agent, setting forth with specificity a description of such Real
Property Asset to be purchased or otherwise acquired and an appraisal or the
Borrower's or any such Consolidated Subsidiary's good faith estimate of the
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current fair market value of such Real Property Asset and (ii) the Borrower and
each of its applicable Domestic Subsidiaries shall promptly execute and deliver
to the Administrative Agent, a Mortgage granting to the Collateral Agent a
second priority Lien on such Real Property Asset (excluding any Real Property
Assets of any Foreign Subsidiary), subject only to the first priority Lien of
the New Working Capital Facility Agent so long as any obligations or commitments
are outstanding under the New Working Capital Facility and such other documents
or instruments as the Administrative Agent shall reasonably request at the
written direction of the Required Lenders with respect to such Real Property
Asset, including, without limitation, a Phase I environmental report, mortgage
title insurance, a survey and a local counsel opinion as to the enforceability
of (A) any mortgage with respect thereto, (B) the Lien created by the mortgage,
(C) any UCC financing statements filed, (D) the perfection resulting from the
filing of such UCC financing statements and, if required by the Administrative
Agent at the written direction of the Required Lenders, supplemental casualty
insurance and flood insurance. Each of the Borrower and each of its applicable
Domestic Subsidiaries shall use commercially reasonable efforts to obtain a
Landlord's Waiver, 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 that has an aggregate fair market value or
book value (whichever is higher as determined under GAAP) in excess of $75,000,
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 the Required Lenders. After the Effective Date, no new
real property or new warehouse space shall be leased by any Loan Party and no
Inventory shall be shipped to a processor or converter under arrangements
established after the Effective Date if the Collateral to be stored or located
at such location (i) has an aggregate fair market value or purchase price
(whichever is higher, as determined by the Administrative Agent or its counsel
or the Required Lenders ) in excess of $75,000 or (ii) has an aggregate fair
market value or purchase price (whichever is higher, as determined by the
Administrative Agent or its counsel or the Required Lenders) when aggregated
with Collateral which has been stored at new real property or new warehouse
spaces leased after the Effective Date or shipped to a processor or converter
under arrangements established after the Effective Date in excess of $500,000,
without the prior written consent of the Required Lenders or, unless and until a
reasonably satisfactory landlord agreement or bailee letter, as appropriate,
shall first have been obtained with respect to such location.
(b) Each Loan Party and each Subsidiary of a Loan Party shall timely
and fully pay and perform its obligations under all leases and other agreements
with respect to each leased location or public warehouse where any Collateral is
or may be located. In addition to the foregoing, Tweco Products, Inc., a
Delaware corporation and Xxxxxx Equipment Company, a Delaware corporation, may
store, keep or otherwise maintain (i) Inventory in an amount not to exceed
$8,000,000 in the aggregate, and (ii) other Collateral in an amount not to
exceed $6,000,000 in the aggregate, at any warehouse or facility operated in
Mexico by either Xxxxxx Equipment de Mexico S.A. de C.V. ("Xxxxxx Mexico") or
Tweco de Mexico, S.A. de C.V ("Tweco Mexico") so long as each of Xxxxxx Mexico
and Tweco Mexico, as applicable, is a direct wholly-owned Subsidiary of the
Borrower.
Section 5.13. Further Assurances; Security Interests. (a) Upon the request of
the Administrative Agent, at the written direction of the Required Lenders, use
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commercially reasonable efforts to deliver to each of the New Term Lenders (i)
within ten (10) Business Days of its receipt of such request a schedule, in
writing, (the "Material Agreements Schedule") of all Material Agreements of the
Borrower and each of its Consolidated Subsidiaries as of the date of such
request or intended to be entered into within ten (10) Business Days of such
request and copies of all such Material Agreements referenced in the Material
Agreements Schedule; and (ii) subject to the terms of the Intercreditor
Agreement, within thirty (30) Business Days of its receipt of such request,
collateral assignments of each of the Material Agreements (other than those to
which a Foreign Subsidiary is a party) set forth in the Material Agreements
Schedule in favor of the Collateral Agent for the benefit of each of the New
Term Lenders.
(b) Subject to the terms of the Intercreditor Agreement and upon the
request of the Administrative Agent or the Collateral Agent each at the written
direction of the Required Lenders, the New Term Lenders and/or the other Secured
Parties (as applicable), at the cost and expense of the Borrower, duly execute
and deliver, or cause to be duly executed and delivered, such further
agreements, documents, instruments, consents, authorizations or approvals (in
each case, in form and substance reasonably satisfactory to the Required
Lenders), and take or cause to be taken such action, as may be necessary, or
requested by the Administrative Agent or its respective counsel at the written
direction of the Required Lenders, to carry out the provisions and purposes of
this Credit Agreement and the other Loan Documents including, without
limitation, to perfect and/or maintain the Liens of the Collateral Agent (for
the benefit of itself and the New Term Lenders).
(c) Upon the request of the Collateral Agent acting at the written
direction of the Required Lenders or its counsel, promptly execute and deliver
or cause to be executed and delivered, at the cost and expense of the Borrower,
such further agreements, documents or instruments as may be appropriate, to
provide the Collateral Agent (for the benefit of the Loan Parties) a Lien on the
Collateral and any of the Real Property Assets (excluding any Real Property
Assets of any Foreign Subsidiary) that is a second priority perfected Lien
subject only to the first priority perfected Lien on the Collateral and any of
the Real Property Assets of the New Working Capital Facility Agent so long as
any obligations or Commitments are outstanding under the New Working Capital
Facility Agreement, and subject further, as to priority, only to Permitted
Encumbrances, and any and all documents (including, without limitation, an
amendment or supplement of any financing statement, a continuation or other
statement) for filing under the provisions of the UCC and the rules and
regulations thereunder, or any other Applicable Law of the United States or any
other jurisdiction which the Collateral Agent may request pursuant to the
written direction of the Required Lenders, and perform or cause to be performed
such other acts which are requested by the Collateral Agent pursuant to the
written direction of the Required Lenders, from time to time, in order to grant,
perfect and maintain in favor of the Collateral Agent (for the benefit of itself
and the New Term Lenders) the security interest in the Collateral and the Real
Property Assets contemplated hereunder and under the other Loan Documents,
subject only to Permitted Encumbrances.
(d) Unless otherwise agreed by the Required Lenders, use commercially
reasonable efforts to exclude from any contract to which it becomes a party,
provisions which prevent the creation of a security interest in the rights under
such contract, and upon the request of the Collateral Agent, at the written
direction of the Required Lenders, use commercially reasonable efforts to obtain
permission for the creation of a security interest in favor of the Collateral
77
Agent (for the benefit of itself and the New Term Lenders) in rights under any
contract which by its terms prohibits the creation of such a security interest.
Section 5.14. Liens. Defend the Collateral against any and all Liens,
claims and other impediments howsoever arising, other than Permitted
Encumbrances, and in any event, defend the same against any attempted
foreclosure or other enforcement proceeding.
Section 5.15. Lease Agreements and Joint Venture Agreements. From
time to time (i) furnish to the Administrative Agent such information and
reports regarding any lease agreement or any joint venture agreement to which a
Loan Party or any Subsidiary thereof is a party as the Administrative Agent may
reasonably request and (ii) upon the occurrence and continuation of an Event of
Default and the request of the Administrative Agent, make such demands and
requests for information, reports or action to the other parties to any lease
agreement to which a Loan Party or any Subsidiary thereof is a party, as the
Loan Party or Subsidiary is entitled to make under each such lease agreement or
joint venture agreement.
Section 5.16. New Term Lender Meetings. From time to time as
requested by the Administrative Agent or the Required Lenders, participate in,
and cause any executive officer of the Borrower that the Administrative Agent
may reasonably request to be available for, and to participate in, a meeting of
the Administrative Agent or the Collateral Agent and the New Term Lenders to be
held, at reasonable intervals, at locations and at times reasonably requested by
the Administrative Agent or the Collateral Agent (or, if applicable, the
Required Lenders).
Section 5.17. Intentionally Omitted.
Section 5.18. Supplemental Disclosure. From time to time as may be
reasonably requested by Administrative Agent at the written direction of the
Required Lenders (which request will not be made more frequently than once each
year absent the occurrence and continuance of an Event of Default) or at the
Borrower's or any other Loan Party's election, the Borrower and the other Loan
Parties shall supplement each Schedule hereto, or any representation herein or
in any other Loan Document, with respect to any matter hereafter arising that,
if existing or occurring at the date of this Credit Agreement, would have been
required to be set forth or described in such Schedule or as an exception to
such representation or that is necessary to correct any information in such
Schedule or representation which has been rendered inaccurate thereby (and, in
the case of any supplements to any Schedule, such Schedule shall be
appropriately marked to show the changes made therein); provided that (a) no
such supplement to any such Schedule or representation shall amend, supplement
or otherwise modify any Schedule or representation, or be or be deemed a waiver
of any Event of Default resulting from the matters disclosed therein, except as
consented to by the Required Lenders in writing, and (b) no supplement shall be
required or permitted as to representations and warranties that relate solely to
the Effective Date.
Section 5.19. Intellectual Property. Each Party will conduct its
business and affairs without infringement of or interference with any
Intellectual Property of any other Person in any material respect and shall
comply with the terms of its Licenses except where the failure to so comply
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
78
Section 5.20. Post-Closing Matters. Deliver or cause to be delivered
to each of the New Term Lenders, each of the items set forth on Schedule 5.20
hereof as soon as available, but in any event within the time period set forth
in such Schedule 5.20 with respect to each such item.
ARTICLE 6
NEGATIVE COVENANTS
From the date hereof and for so long as any amount remains
outstanding with respect to the New Term Loans, or any Obligation remains unpaid
or unsatisfied, the Borrower and each Loan Party agrees that, unless the
Required Lenders shall otherwise consent in writing, it will not and will not
allow any of its Consolidated Subsidiaries to:
Section 6.1. Limitations on Indebtedness. Incur, create, assume or
permit to exist any Indebtedness other than:
(a) the Indebtedness and other Obligations under this Credit
Agreement and the other Loan Documents;
(b) the Indebtedness and other obligations under the New Working
Capital Facility as the New Working Capital Facility may be modified, amended or
refinanced from time to time; provided, that, (i) the New Working Capital
Facility shall not exceed $50,000,000 on the Effective Date; (ii) the New
Working Capital Facility may be increased to $55,000,000 at any time after the
Effective Date; (iii) the New Working Capital Facility may be increased to
$57,500,000 at any time after which the product of 1.5 multiplied by Adjusted
EBITDA for the trailing twelve month period prior to the date of any such
proposed increase in the New Working Capital Facility shall be at least equal to
$57,500,000 and (iv) the New Working Capital Facility may not be extended
without the prior written consent of the Required Lenders;
(c) Indebtedness refinancing a portion of the Indebtedness and/or
other Obligations under this Credit Agreement; provided, that the terms of any
such Indebtedness refinancing only a portion of the Indebtedness and other
Obligations under this Credit Agreement (including without limitation any
security therefor and the Borrower(s) thereunder) shall have been approved in
writing by the Administrative Agent and the Required Lenders which approval
shall not be unreasonably withheld;
(d) a Guaranty by a Loan Party of Indebtedness permitted to be
incurred pursuant to Sections 6.1(b) or (c) hereof;
(e) existing Indebtedness described on Schedule 6.1 hereto and
refinancings thereof or amendments or modifications thereto that do not have the
effect of increasing the principal amount thereof or changing the amortization
thereof (other than to extend the same) and that are otherwise on terms and
conditions no less favorable to the Borrower, any other Loan Party, the
Administrative Agent or any New Term Lender, than the terms of the Indebtedness
being refinanced, amended or modified;
(f) Indebtedness in respect of intercompany loans or advances
constituting Investments permitted under Section 6.4 hereof (including
extensions of the maturity thereof); provided, that (i) the Borrower and its
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Subsidiaries shall record all intercompany transactions on their books and
records; (ii) the obligations of the Borrower and any Guarantor under any such
intercompany loans and advances shall be subordinated in right of payment to the
Obligations of the Borrower and any Guarantor hereunder; (iii) at the time any
such intercompany loan or advance is made by the Borrower or any other Loan
Party and after giving effect thereto, each of the Borrower and such other Loan
Party, as applicable shall be Solvent; and (iv) no Default or Event of Default
would occur and be continuing after giving effect to any such proposed
intercompany loan;
(g) Indebtedness in respect of secured purchase money financing
(including Capital Leases) to the extent permitted by Section 6.2(k);
(h) Guaranties permitted pursuant to Section 6.3 hereof;
(i) Indebtedness secured by Liens permitted by Section 6.2(b),(c),(d)
and (e);
(j) Unfunded pension fund and other employee benefit plan obligations
and liabilities to the extent they are permitted to remain unfunded under
applicable law;
(k) Indebtedness of Foreign Subsidiaries of the Borrower (excluding
Capital Lease Obligations) in an aggregate outstanding principal amount, not in
excess of $8,000,000 at any time; and
(l) Indebtedness owed to Bank One, N.A. or any of its banking
affiliates in respect of any liabilities arising from treasury, depository and
cash management services or in connection with any automated clearing house
transfers of funds not to exceed $500,000 in the aggregate at any time
outstanding.
Section 6.2. Limitations on Liens. Incur, create, assume or permit to
exist any Lien on any of its revenue stream, property or assets (including,
without limitation, any Proprietary Rights), whether now owned or hereafter
acquired, or assign or sell any income or revenues or rights in respect of any
thereof, except:
(a) Liens for taxes or assessments or other governmental charges not
yet due and payable or which are being contested in accordance with Section
5.9(b);
(b) pledges or deposits of money securing statutory obligations under
workmen's compensation, unemployment insurance, social security or public
liability laws or similar legislation (excluding Liens under ERISA);
(c) pledges or deposits of money securing bids, tenders, contracts
(other than contracts for the payment of money) or leases to which any Loan
Party or any Subsidiary of a Loan Party is a party as lessee made in the
ordinary course of business;
(d) (i) inchoate and unperfected workers', mechanics' or similar
Liens arising in the ordinary course of business (so long as such Liens attach
only to Equipment, Fixtures and/or Real Property Assets) and (ii) carriers',
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warehousemen's, suppliers' or other similar possessory Liens arising in the
ordinary course of business, but in any instance with respect to the Liens
described in clauses (i) and (ii), not securing obligations in excess of
$500,000 in the aggregate for all Loan Parties and their Subsidiaries for any
Fiscal Year, and not securing obligations which are due and payable (unless such
obligations are being contested in good faith and with respect to which
appropriate reserves have been established in accordance with GAAP and the
applicable Loan Party or Subsidiary is in compliance with Section 5.9 hereof);
(e) deposits securing, or in lieu of, surety, appeal or customs bonds
in proceedings to which any Loan Party or any Subsidiary of a Loan Party is a
party;
(f) any attachment or judgment lien not constituting an Event of
Default under Section 7(j);
(g) zoning restrictions, easements, licenses, or other restrictions
on the use of any Real Property Assets or other minor irregularities in title
(including leasehold title) thereto, as long as the same do not materially
impair the use, value, or marketability of such Real Property Assets;
(h) customary Liens and set-off rights in favor of banks maintaining
accounts for the Loan Parties consistent with the Cash Management System;
(i) the Liens of the Collateral Agent (for the benefit of itself, the
Administrative Agent and the New Term Lenders) under this Credit Agreement, the
Loan Documents and any other document contemplated hereby or thereby;
(j) existing Liens listed on Schedule 6.2 hereto securing the
Indebtedness described in Schedule 6.1 and refinancings and renewals thereof not
otherwise restricted hereunder; provided that the principal amount of the
Indebtedness so secured is not increased and the Lien does not attach to any
other property;
(k) Liens under any conditional sale or other title retention
agreements (including Capital Leases) or in connection with purchase money
Indebtedness with respect to Equipment and Fixtures acquired by any Loan Party
or any Subsidiary of any Loan Party in the ordinary course of business, in each
case securing only the assets that are subject to such Capital Leases and
conditional sale or other title retention agreements or securing only the assets
being financed by such purchase money Indebtedness, as the case may be,
involving the incurrence of an aggregate amount of purchase money Indebtedness
and obligations under Capital Leases of not more than $32,300,000 until June 30,
2004 and not more than $27,800,000 outstanding at any one time thereafter for
all such Liens (provided that such Liens securing such purchase money
Indebtedness attach only to the assets subject to such purchase money debt and
such Indebtedness is incurred within twenty (20) days following such purchase
and does not exceed 100% of the purchase price of the subject assets);
(l) Liens arising from UCC financing statements filed in connection
with a Capital Lease or operating lease, in each case not prohibited hereunder;
provided that no such financing statement covers any property or assets of a
Loan Party or a Subsidiary thereof, other than the property or assets which are
subject to such Capital Lease or such operating lease;
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(m) Liens to secure Indebtedness under the New Working Capital
Facility and Liens to secure Indebtedness permitted under Section 6.1(k);
(n) Liens in favor of the Borrower or another Loan Party; and
(o) Liens securing Indebtedness not exceeding $250,000 in the
aggregate at any time outstanding, so long as such Liens do not attach to any
Account or Inventory.
Section 6.3. Limitation on Guaranties. Incur, create, assume or
suffer to exist any Guaranty, either directly or indirectly, except:
(a) the endorsement of negotiable instruments for deposit or
collection in the ordinary course of business;
(b) the Guaranties made by the Guarantors pursuant to Article 8
hereof;
(c) Guaranties of obligations of a Loan Party which obligations are
not prohibited hereunder;
(d) Guaranties existing on the Effective Date as set forth on
Schedule 6.3 hereto;
(e) Guaranties permitted by Sections 6.1(d) hereof; and
(f) Guaranties constituting Investments that are not prohibited by
Section 6.4 hereof.
Section 6.4. Limitations on Investments. Create, make, incur,
purchase, acquire or hold (including, without limitation, pursuant to any merger
with any Person) any Investment, except:
(a) so long as no Event of Default has occurred and is continuing,
Investments held by the Borrower or any of the other Loan Parties, subject to
Control Letters in favor of the Collateral Agent for the benefit of itself and
the New Term Lenders or otherwise subject to a perfected security interest in
favor of the Collateral Agent for the benefit of itself and the New Term Lenders
(subject to the terms of the Intercreditor Agreement); provided, that such
Investments shall consist of (A) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one year from the date of acquisition thereof, (B) commercial
paper maturing no more than one year from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Ratings Group or Xxxxx'x Investors Service, Inc., (C) certificates of deposit
maturing no more than one year from the date of creation thereof issued by
commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$300,000,000 and having a senior unsecured rating of "A" or better by a
nationally recognized rating agency (an "A Rated Bank"), (D) time deposits
maturing no more than thirty (30) days from the date of creation thereof with A
Rated Banks, and (E) mutual funds that invest solely in one or more of the
Investments described in this paragraph (a);
82
(b) loans by any Loan Party to its respective employees in the
ordinary course of business consistent with past practices for travel and
entertainment expenses, relocation costs and similar purposes and stock option
financing up to a maximum of $1,000,000 in the aggregate at any one time
outstanding;
(c) Investments (whether as equity, loans or Guaranties permitted
hereunder or other Investments) of a Subsidiary of the Borrower in the Borrower;
provided, that any such Investment is subordinated to the extent required by
Section 10.16 hereof;
(d) Investments by the Borrower or a Loan Party in another Loan
Party;
(e) existing Investments in Subsidiaries existing as of the Effective
Date as listed on Schedule 6.4 hereto;
(f) Investments made as a result of the receipt of non-cash
consideration from an asset sale made in compliance with Section 6.7 hereof;
(g) Guaranties permitted by Section 6.3;
(h) Capital Expenditures made in accordance with Section 6.9 hereof;
(i) the Borrower may make Investments in, or create, any wholly-owned
Domestic Subsidiary, provided that such Subsidiary is or becomes a Guarantor
(subject to the terms of the Intercreditor Agreement), the Stock of such
Subsidiary is pledged to the Collateral Agent, and such Subsidiary grants Liens
to the Collateral Agent on all of its assets to secure the Obligations, subject
only to Permitted Encumbrances;
(j) any Loan Party may make Investments in, or create, any direct
wholly-owned Foreign Subsidiary, provided that (subject to the terms of the
Intercreditor Agreement) (I) 65% of the voting and 100% of the non-voting stock
of any such direct wholly-owned Foreign Subsidiary shall be pledged to secure
the Obligations, and (II) the aggregate amount of all Investments by any such
Loan Party in such Foreign Subsidiaries after the Effective Date does not exceed
$3,000,000 up to and including the third anniversary of the Effective Date and
does not exceed $5,000,000 thereafter;
(k) any Loan Party may maintain advances, loans and Investments in
any of its Foreign Subsidiaries that are in existence as of the date hereof,
provided such advances, loans and Investments are not increased;
(l) any Loan Party and any Subsidiary of any Loan Party may hold
Investments comprised of notes payable by Account Debtors (as defined in the
UCC) to any Loan Party or Subsidiary thereof pursuant to negotiated agreements
with respect to settlement of such Account Debtor's Accounts in the ordinary
course of business consistent with past practices;
(m) any Loan Party may make Investments in any of its Foreign
Subsidiaries consisting of the conversion of intercompany loans (but not
intercompany accounts payable) outstanding as of the Effective Date into equity;
83
provided, that such conversions of the loans to such Foreign Subsidiaries are
required under Applicable Law to meet thin capitalization rules in that Foreign
Subsidiary's jurisdiction;
(n) in addition to those Investments permitted pursuant to Section
6.4(e), any Foreign Subsidiary of the Borrower may make or hold any additional
Investment in any other Foreign Subsidiary of the Borrower, including the
creation of any new wholly-owned Foreign Subsidiary, in an annual aggregate
amount not to exceed $2,000,000 per Fiscal Year after the Effective Date;
(o) other Investments not exceeding $1,000,000 in the aggregate at
any time; and
(p) Investments by the Borrower and its Consolidated Subsidiaries by
way of acquisitions of the Stock of any Person in an annual aggregate amount not
to exceed $5,000,000 per Fiscal Year; provided, that the aggregate amount of
such acquisitions by the Borrower and its Consolidated Subsidiaries from the
Effective Date up until and including the Bank Credit Termination Date shall not
exceed $15,000,000.
Section 6.5. Restricted Payments; Certain Payments of Indebtedness.
Pay, declare, make, or become obligated to make, any Restricted Payment, except:
(a) dividends or distributions payable in its common stock or
warrants to purchase its common stock;
(b) splits or reclassifications of its Stock into additional or other
shares of its common stock or apply, or permit any of its Subsidiaries to apply,
any of its funds, property or assets to the purchase, redemption, exchange,
sinking fund or other retirement of, or agree or permit any of its Subsidiaries
to purchase, redeem or exchange, any shares of any class of capital stock (now
or hereafter outstanding) of the Borrower or warrants, options or other rights
with respect to any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower;
(c) intercompany and employee loans and advances to the extent
permitted by Sections 6.1, 6.4 and 6.13;
(d) dividends and distributions by any Subsidiary of the Borrower
paid to the Borrower or any wholly-owned Domestic Subsidiary of the Borrower;
(e) payments of principal and interest of intercompany loans in
accordance with Section 6.4;
Section 6.6. Intentionally Omitted.
Section 6.7. Merger, Sale of Assets, Purchases, etc. Whether in one
transaction or a series of transactions, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, or sell,
transfer, lease or otherwise dispose of any of its property or assets
(including, without limitation, any capital stock of any Subsidiary) or in the
case of any Loan Party or any Subsidiary of a Loan Party, issue additional
Equity Interests, or agree to do or suffer any of the foregoing directly or
indirectly, by operation of law, or otherwise, except for:
84
(a) the merger by any Guarantor or Subsidiary of the Borrower into
the Borrower or another Guarantor;
(b) the merger by any Foreign Subsidiary into another Foreign
Subsidary;
(c) the transfer by any Guarantor of any of its assets to the
Borrower or another Guarantor;
(d) the transfer by any Foreign Subsidiary of the Borrower of any of
its assets to any other Subsidiary of the Borrower;
(e) sales, transfers, leases or other dispositions of Inventory in
the ordinary course of business;
(f) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the compromise or
collection thereof;
(g) (i) sales or other dispositions by the Borrower, any Domestic
Subsidiary and any Canadian Subsidiary of the Borrower of Equipment and Fixtures
that are obsolete or no longer used or useful in the Borrower's or any such
Domestic or Canadian Subsidiary's business and having a book value not exceeding
$2,000,000 in the aggregate in any Fiscal Year, (ii) sales or other dispositions
by the Borrower and any Foreign Subsidiary of the Borrower (other than a
Canadian Subsidiary) of Equipment and Fixtures that are obsolete or no longer
used or useful in the Borrower's or such Subsidiary's business and having a book
value not exceeding $1,000,000 in the aggregate in any Fiscal Year, (iii) the
sale of Equipment and Fixtures by Tweco in connection with the moving of its
facilities in Wichita, Kansas to Denton, Texas, in an amount not to exceed
$500,000, (iv) the sale or other disposition by the Borrower, any Domestic
Subsidiary and any Canadian Subsidiary of the Borrower of other Equipment and
Fixtures having a book value not exceeding $1,000,000 in the aggregate in any
Fiscal Year and (v) the sale or other disposition by any Foreign Subsidiaries
(other than a Canadian Subsidiary) of other Equipment and Fixtures having a book
value not exceeding $500,000 in the aggregate in any Fiscal Year; provided, that
an amount equal to the Net Cash Proceeds received (if any) pursuant to this
Section 6.7(g) in excess of $250,000 in any Fiscal Year shall, subject to the
terms of the Intercreditor Agreement, be deposited in a Deposit Account that is
with a New Term Lender and that is subject to a Lien in favor of the Collateral
Agent; and further, provided that, subject to the terms of the Intercreditor
Agreement, an amount equal to such Net Cash Proceeds in excess of $250,000 shall
be applied as a prepayment of the New Term Loans in accordance with Section
2.6(c) hereof. Notwithstanding the foregoing, so long as no Default or Event of
Default shall have occurred and then be continuing, an amount equal to the Net
Cash Proceeds may be used by the applicable Loan Party within 6 months to
replace any such asset or Investment sold, transferred or disposed of pursuant
to this Section 6.7(g) so long as such replacement asset or Investment is
subject to the Lien of the Collateral Agent. The applicable Loan Party shall
deliver to the Collateral Agent, no less than five (5) Business Days prior to
the date of any expected sale or other disposition permitted under this Section
6.7(g) in which the consideration to be received is equal to or greater than
$250,000 written notice of the identity of the purchaser or transferee, the
expected date of the closing of such sale or other disposition, the expected
date of receipt by the applicable Loan Party of the Net Cash Proceeds with
85
respect thereto (or the asset(s) being received, if applicable), the principal
terms of the sale or disposition and such other information as the Collateral
Agent may reasonably request (which notice shall also contain a statement that
the sale price (or the fair value of the asset(s) being received, if applicable)
is greater than or equal to the fair value of the asset being sold or disposed
of);
(h) the granting of Permitted Encumbrances;
(i) the sale, transfer and/or disposition of any asset to the extent
that such sale, transfer and/or disposition constitutes an Investment permitted
by Section 6.4 or a Restricted Payment permitted by Section 6.5;
Section 6.8. Sale Leaseback Transactions. Enter into any Sale
Leaseback Transaction.
Section 6.9. Limitation on Capital Expenditures. Make or incur any
obligation to make Consolidated Capital Expenditures (including obligations
under Capital Leases) in an aggregate amount during each period set forth below
(as measured by the last day of each such period), in excess of the amount for
such period indicated below:
Period Maximum Capital Expenditures per Period
------ ---------------------------------------
Fiscal Year 2003 $18,000,000
Fiscal Year 2004 $17,000,000
Fiscal Year 2005 $15,000,000
Fiscal Year 2006 and each Fiscal
Year thereafter $15,000,000
provided, however, that the amount of permitted Consolidated Capital
Expenditures referenced above will be increased in any period by the positive
amount equal to the lesser of (i) 50% of the amount of permitted Consolidated
Capital Expenditures for the immediately prior period, and (ii) the amount (if
any), equal to the difference obtained by taking the Consolidated Capital
Expenditures limit specified above for the immediately prior period minus the
actual amount of any Capital Expenditures expended during such prior period (the
"Carry Over Amount"), and for purposes of measuring compliance herewith, the
Carry Over Amount shall be deemed to be the last amount spent on Capital
Expenditures in that succeeding year.
Section 6.10. Minimum Consolidated EBITDA. Permit Consolidated EBITDA
on the last day of each Fiscal Quarter for the twelve-month period then ended
(or with respect to the Fiscal Quarter ending on September 30, 2003, the period
commencing on January 1, 2003 and ending on the last day of such Fiscal Quarter)
to be less than the amount set forth below opposite such period:
Fiscal Quarter ending September 30, 2003 $38,000,000
Fiscal Quarter ending December 31, 2003 $51,300,000
Fiscal Quarter ending March 31, 2004 $53,500,000
Fiscal Quarter ending June 30, 2004 $54,700,000
Fiscal Quarter ending September 30, 2004 $55,000,000
Fiscal Quarter ending December 31, 2004 $55,500,000
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Fiscal Quarter ending March 31, 2005 $56,000,000
Fiscal Quarter ending June 30, 2005 $57,500,000
Fiscal Quarter ending September 30, 2005 $59,000,000
For each Fiscal Quarter ending thereafter $60,000,000
Section 6.11. Maximum Leverage Ratio. Permit the Leverage Ratio on
the last day of each Fiscal Quarter for the twelve-month period then ended (or
with respect to the Fiscal Quarter ending on September 30, 2003, the period
commencing on January 1, 2003 and ending on the last day of such Fiscal Quarter)
to be greater than the amount set forth below opposite such period:
6.40 for the Fiscal Quarter ending September 30, 2003;
4.75 for the Fiscal Quarter ending December 31, 2003;
4.10 for the Fiscal Quarter ending March 31, 2004;
3.95 for the Fiscal Quarter ending June 30, 2004;
3.90 for the Fiscal Quarter ending September 30, 2004;
3.80 for the Fiscal Quarter ending December 31, 2004;
3.55 for the Fiscal Quarter ending March 31, 2005;
3.50 for the Fiscal Quarter ending June 30, 2005;
3.45 for the Fiscal Quarter ending September 30, 2005; and
3.40 for each Fiscal Quarter ending thereafter.
Section 6.12. Minimum Fixed Charge Coverage Ratio. Permit the Fixed
Charge Coverage Ratio on the last day of each Fiscal Quarter for the
twelve-month period then ended (or with respect to the Fiscal Quarter ending on
September 30, 2003, the period commencing on January 1, 2003 and ending on the
last day of such Fiscal Quarter) to be less than 1.10 to 1.00.
Section 6.13. Transactions with Affiliates. Enter into any
transaction with, or make any payment to, any of its Affiliates (excluding any
of the New Term Lenders as of the Effective Date) that is less favorable to the
Borrower or any such Consolidated Subsidiary than would have been the case if
such transaction had been effected on an arm's-length basis with a Person other
than an Affiliate except (a) Restricted Payments permitted pursuant to Section
6.5 and/or Investments permitted pursuant to Section 6.4, Indebtedness permitted
pursuant to Section 6.1 and transactions permitted pursuant to Section 6.7, (b)
the Borrower may enter into transactions with other Loan Parties (not involving
any other Affiliate), and (c) Loan Parties (excluding the Borrower) may enter
into transactions with other Loan Parties (excluding the Borrower). If any such
transaction or any series of related transactions (other than purchases and
sales of Inventory in the ordinary course of business) involves payments in
excess of $500,000 in the aggregate, the terms of these transactions must be
disclosed in advance to the New Term Lenders.
Section 6.14. Restrictive Agreements. Directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of any Loan
Party to create, incur or permit to exist any Lien upon any of its property or
assets except operating leases, Capital Leases, in connection with the New
Working Capital Facility, or Licenses which prohibit Liens upon the assets that
are subject thereto, (b) the ability of any Loan Party or any Subsidiary of a
Loan Party to pay dividends or make any other distributions with respect to any
shares of its capital stock or any other equity interest or participation in its
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profits owned by a Loan Party or a Subsidiary of a Loan Party (other than the
New Working Capital Facility Agreement), or (c) the ability of any Loan Party or
Subsidiary of a Loan Party to make or repay loans or advances to the Borrower
hereunder or under the New Working Capital Facility or any other Loan Party or
to guarantee Indebtedness of the Borrower or any other Loan Party or to transfer
any of its properties or assets to the Borrower or any other Loan Party (other
than the New Working Capital Facility Agreement).
Section 6.15. Amendments of New Working Capital Facility. Change or
amend the terms of the New Working Capital Facility if the effect of any such
amendment is to: (a) increase the interest rate on the New Working Capital
Facility Loans; (b) change the dates upon which payments of principal or
interest are due on the New Working Capital Facility Loans; or (c) change the
redemption or prepayment provisions of the New Working Capital Facility
Agreement to accelerate the dates therefor or to increase the premiums payable
in connection therewith.
Section 6.16. Line of Business; Changes in Business. In the case of
the Borrower and its Subsidiaries, engage in any line of business other than the
business of manufacturing of cutting and welding products and accessories and
other product line extensions reasonably related thereto, subject to the various
limitations contained in this Credit Agreement and the other Loan Documents; nor
substantially alter the character of the business of the Borrower and its
Subsidiaries, taken as a whole, from that conducted on the Effective Date; nor
shall the Borrower engage in any trade or business or own any assets (other than
the Stock of its Subsidiaries) or incur any Indebtedness or Guaranty of
Indebtedness other than the New Senior Indebtedness under this Credit Agreement
and the New Working Capital Facility; provided, that the Borrower may guarantee
leases and other contractual obligations of its Subsidiaries.
Section 6.17. Intentionally Omitted.
Section 6.18. ERISA Compliance. Engage in a "prohibited transaction,"
as defined in Section 406 of ERISA or Section 4975 of the Code, with respect to
any Plan or Multiemployer Plan or knowingly consent to any "party in interest"
or any "disqualified person," as such terms are defined in Section 3(14) of
ERISA and Section 4975(e)(2) of the Code, respectively, engaging in any
"prohibited transaction," with respect to any Plan or Multiemployer Plan; or
permit any Plan to incur any "accumulated funding deficiency," as defined in
Section 302 of ERISA or Section 412 of the Code; or terminate any Plan in a
manner which could result in the imposition of a Lien on any property of any
Loan Party, any Subsidiary of a Loan Party or any ERISA Affiliate pursuant to
Section 4068 of ERISA; or breach or knowingly permit any employee or officer or
any trustee or administrator of any Plan to breach any fiduciary responsibility
imposed under Title I of ERISA with respect to any Plan; engage in any
transaction which would result in the incurrence of a liability under Section
4069 of ERISA; or fail to make contributions to a Plan or Multiemployer Plan
which could result in the imposition of a Lien on any property of any Loan
Party, any Subsidiary of a Loan Party or any ERISA Affiliate pursuant to Section
302(f) of ERISA or Section 412(n) of the Code, if the occurrence of any of the
foregoing events described in this Section 6.18 (alone or in the aggregate)
would result in a Material Adverse Effect.
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Section 6.19. Hazardous Materials. Cause or permit any of its
properties or assets to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce or process Hazardous Materials,
except in compliance with all applicable Environmental Laws; nor cause or permit
Release on, under or in any such property or asset in violation of any
Environmental Law or in a manner that could result in liability under any
Environmental Law or an Environmental Claim, except in each case, as are not
reasonably likely to result in a Material Adverse Effect.
Section 6.20. Fiscal Year; Fiscal Quarter. Change its Fiscal Year
from a Fiscal Year ending December 31 or change any of its Fiscal Quarters.
Section 6.21. Deposit Accounts; Securities Accounts. Subject to the
terms of Schedule 2.15 hereof, establish or take any action to establish any new
Deposit Account, Securities Account or other similar account or instruments
after the Effective Date, without the prior written notice to the Collateral
Agent and, provided in all cases (other than with regard to any new Deposit
Account, Securities Account or other similar account or instrument established
by a Foreign Subsidiary), before any funds are deposited or transferred into any
such account or before any instrument is created, such account or instrument, as
applicable, shall be subject to a Blocked Account Agreement, subject to the
Intercreditor Agreement.
Section 6.22. Real Estate Purchases. Purchase a fee simple interest
in real estate with an aggregate purchase price in excess of $500,000.
Section 6.23. Change of Corporate Name, State of Incorporation or
Location. Without altering the restrictions on mergers involving the Loan
Parties, neither the Borrower nor any other Loan Party shall (a) change its name
as it appears in official filings in the state of its incorporation or other
organization, (b) change its chief executive office, principal place of
business, corporate offices or warehouses or locations at which Collateral is
held or stored, or the location of its records concerning the Collateral, (c)
change the type of entity that it is, (d) change its organization identification
number, if any, issued by its state of incorporation or other organization, (e)
change its state of incorporation or organization or incorporate or organize in
any additional jurisdictions or (f) consent to any amendment of its certificate
of incorporation, by-laws or other organizational documents, in each case
without at least thirty (30) days prior written notice to the Administrative
Agent and after the Administrative Agent's written acknowledgment that any
reasonable action requested by the Administrative Agent at the written direction
of the Required Lenders in connection therewith, including to continue the
perfection of any Liens in favor of the Collateral Agent, on behalf of itself
and the New Term Lenders, in any Collateral, has been completed or taken, and
provided that with respect to the Loan Parties that were located in the
continental United States as of the Effective Date any such new location for any
such Loan Party shall be in the continental United States.
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ARTICLE 7
EVENTS OF DEFAULT
In the case of the happening and during the continuance of any of the
following events (herein called "Events of Default"):
(a) any representation, warranty, certification or statement made or
deemed made by, or on behalf of, a Loan Party in this Credit Agreement or any
other Loan Document to which it is a party (or any amendment, modification or
waiver of any of the foregoing) or in connection with this Credit Agreement or
any Loan Document (or any amendment, modification or waiver of any of the
foregoing) or any representation warranty, certification or statement made or
deemed made by, or on behalf of, any Loan Party in any report, financial
statement, certificate or other document furnished by, or on behalf of any Loan
Party to the Administrative Agent, or any New Term Lender pursuant to, or in
connection with, this Credit Agreement or any other Loan Document (or any
amendment, modification or waiver of any of the foregoing), shall prove to have
been false or misleading in any material respect when made (or deemed made) or
delivered;
(b) default shall be made in the payment of principal of the New Term
Loan as and when the same shall be due and payable, whether at the due date
thereof, by reason of maturity, mandatory prepayment, acceleration or otherwise;
(c) default shall be made in the payment of interest on any New Term
Loan, the Fees or other amounts (other than an amount referred to in paragraph
(b) above) payable to the Administrative Agent, or a New Term Lender under this
Credit Agreement, under the Fee Letter, when and as the same shall become due
and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise, and such default shall continue
unremedied for more than three (3) Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Sections 2.15, (including Schedule
2.15 referenced therein), 5.2 (with respect to the existence of the Borrower and
any other Loan Party), 5.4, 5.5, 5.11 or in Article 6 of this Credit Agreement;
(e) default shall be made by any Loan Party in the due observance or
performance of any covenant, condition or agreement set forth in Section 5.1
hereof and such default shall continue unremedied for three (3) Business Days;
(f) default shall be made by any Loan Party in the due observance or
performance of any other covenant or agreement to be observed or performed
pursuant to the terms of this Credit Agreement or any other Loan Document (other
than those covered by paragraphs (a), (b), (c) or (d) of this Article 7), and
such default shall continue unremedied for twenty-five (25) days after the
earlier to occur of (i) a Loan Party or any Subsidiary of a Loan Party receives
notice thereof from the Administrative Agent (which notice shall be given at the
request of any New Term Lender) or any other Person, or (ii) an Authorized
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Officer or other executive officer of a Loan Party or any Subsidiary of a Loan
Party obtains knowledge of such occurrence;
(g) default shall be made with respect to any payment, when due, of
any other Material Indebtedness (other than the Obligations) of any Loan Party
or any Subsidiary of a Loan Party, or any other default shall occur, if the
effect of such non-payment default is to accelerate the maturity of such
Material Indebtedness or to permit (with or without the giving of notice, the
lapse of time or both) the holder or holders thereof (or any trustee or agent of
their behalf) to cause such Material Indebtedness to become due prior to its
stated maturity, and such default shall not be remedied, cured, waived or
consented to within the period of grace with respect thereto, or any other
circumstance arises (other than the mere passage of time) by reason of which any
Loan Party is required to prepay, repurchase, redeem or otherwise defease or
offer to holders of Material Indebtedness of any such Person, the opportunity to
have prepaid, repurchased, redeemed or defeased, any such Material Indebtedness;
or any such Material Indebtedness shall become, or be declared to be, due and
payable prior to its stated maturity (provided that the foregoing clause of this
paragraph (g) shall not apply to secured Indebtedness permitted hereunder that
becomes due prior to its stated maturity as a result of the voluntary sale or
transfer as permitted hereunder of the property or assets securing such
Indebtedness);
(h) any Loan Party or any Subsidiary of a Loan Party shall generally
not pay or shall become unable to pay its debts as they become due or shall
admit in writing its inability to pay its debts, or shall make a general
assignment for the benefit of creditors; or any Loan Party or any Subsidiary of
a Loan Party shall commence any case, proceeding or other action seeking to have
an order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property or shall file an
answer or other pleading in any such case, proceeding or other action admitting
the material allegations of any petition, complaint or similar pleading filed
against it or consenting to the relief sought therein; or any Loan Party or any
Subsidiary of a Loan Party shall take any action to authorize, or in
contemplation of, any of the foregoing;
(i) any involuntary case, proceeding or other action against any Loan
Party or any Subsidiary of a Loan Party shall be commenced seeking to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (i) results in the entry of any order for relief against it, or
(ii) shall remain undismissed for a period of sixty (60) days;
(j) one or more trial court judgment(s), arbitration or binding
mediation award(s) and/or settlement(s) for the payment of money in excess of
$1,000,000 in the aggregate shall be rendered against, or entered into by, any
Loan Party or any Subsidiary of a Loan Party, and either (i) within thirty (30)
days from the entry of any such judgment or from the date of any such award or
settlement (as applicable), the same shall not have been discharged, or in the
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case of a judgment or award, stayed pending appeal, or shall not have been
discharged within thirty (30) days from the entry of a final order of affirmance
on appeal or (ii) enforcement proceedings shall be commenced by any creditor on
any such judgment, award or settlement;
(k) (i) failure by any Loan Party or ERISA Affiliate to make any
contributions required to be made to a Plan subject to Title IV of ERISA or a
Multiemployer Plan, (ii) any accumulated funding deficiency (as defined in
Section 302 of ERISA of Section 412 of the Code) shall exist with respect to any
Plan (whether or not waived), (iii) the present value of all benefits under all
Plans subject to Title IV of ERISA determined on a plan termination basis (based
on those actuarial assumptions prescribed by the PBGC for purposes of Section
4044 of ERISA) exceeds, in the aggregate, as of the last annual valuation date
applicable thereto, the fair market value of the assets of such Plans allocable
to such benefits, (iv) any Loan Party or ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred withdrawal
liability to such Multiemployer Plan, or that a Multiemployer Plan is in
reorganization or is being terminated, (v) a Reportable Event with respect to a
Plan shall have occurred, (vi) the withdrawal by any Loan Party or ERISA
Affiliate from a Plan during a plan year in which it was a substantial employer
(within the meaning of Section 4001(a)(2) or 4062(e) of ERISA), (vii) the
termination of a Plan, or the filing of a notice of intent to terminate a Plan
under Section 4041(c) of ERISA, (viii) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, a Plan by the PBGC,
(ix) any other event or condition which could constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or (x) the imposition of a Lien pursuant to Section 412 of
the Code or Section 302 of ERISA as to any Loan Party or ERISA Affiliate if the
occurrence of any of the foregoing events described in this Section 7(k)
(individually, or in the aggregate) would result in a Material Adverse Effect;
(l) any Loan Party or any Subsidiary of a Loan Party is liable for a
payment under any Environmental Law which is reasonably likely to have a
Material Adverse Effect;
(m) (i) this Credit Agreement, the Security Agreement, any Mortgage,
or any other Loan Document shall, for any reason, not be or shall cease to be in
full force and effect or shall be declared null and void, or any material
provision of any Loan Document for any reason shall cease to be valid, binding
and enforceable in accordance with its terms, or any of the Loan Documents shall
not give or shall cease to give the Administrative Agent or any of the other
Secured Parties (as applicable), the rights, powers and privileges purported to
be created hereby or thereby or shall not give or shall cease to give the
Collateral Agent the Liens, rights, powers and privileges purported to be
created hereby or thereby in favor of the Administrative Agent for the benefit
of itself and the other Secured Parties, superior to and prior to the rights of
all third Persons and subject to no other Liens (other than Permitted
Encumbrances), or (ii) the validity or enforceability of the Liens granted, to
be granted, or purported to be granted, by any of the Loan Documents shall be
contested by any Loan Party or any Subsidiary of a Loan Party; provided, that no
such defect pursuant to clause (i) above with respect to a Lien granted or
purported to be granted by any of the Loan Documents shall give rise to an Event
of Default under this paragraph (l) unless such defect shall affect Collateral
taken as a whole by an aggregate value in excess of $2,000,000;
(n) a Change in Control shall occur;
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(o) at any time, for any reason, any Loan Party shall repudiate, or
seek to repudiate, any of its Obligations, including, without limitation, in the
case of a Loan Party other than the Borrower, its Guaranty under any Loan
Document; or
(p) an Event of Default shall occur under the New Working Capital
Facility Agreement or any other document, agreement or instrument executed and
delivered pursuant thereto or in connection therewith or that is related to the
New Working Capital Facility and such event of default shall not be waived or
consented to by the Required Lenders or Administrative Agent, as applicable;
then, in every such event and at any time thereafter during the continuance of
such event, the Administrative Agent may, and if directed by the Required
Lenders shall, by notice to the Borrower and the New Working Capital Facility
Agent (i) declare the principal of the New Term Loans, together with accrued and
unpaid interest on the New Term Loans (and any New Term Notes) and any unpaid
accrued Fees and all other amounts due and payable hereunder (or thereunder) or
under any of the other Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable, without presentment,
demand, protest, notice of acceleration or other notice of any kind, all of
which are hereby expressly waived, anything in this Credit Agreement (or in the
New Term Notes) or under any of the other Loan Documents to the contrary
notwithstanding and (ii) exercise all of the rights and remedies available under
the Loan Documents, pursuant to Applicable Law or in equity, including, without
limitation, the right to direct the Collateral Agent to exercise the remedies
available under the Security Documents subject to the terms of the Intercreditor
Agreement. If an Event of Default specified in paragraphs (h) or (i) above shall
have occurred, without any notice to the Borrower, the principal of, and
interest on, the New Term Loans (and any New Term Notes) and all other amounts
payable hereunder and thereunder shall automatically become due and payable
without presentment, demand, protest, or other notice of any kind, all of which
are hereby expressly waived, anything in this Credit Agreement, the New Term
Notes hereunder or under any of the other Loan Documents to the contrary
notwithstanding.
ARTICLE 8
GUARANTY
Section 8.1. Guaranty. (a) Each Guarantor unconditionally and
irrevocably guarantees to the Secured Parties the due and punctual payment by,
and performance of, the Obligations. Each Guarantor further agrees that the
Obligations may be increased, extended or renewed, in whole or in part, without
notice or further assent from it (except as may be otherwise required herein),
and it will remain bound upon this Guaranty notwithstanding any increase,
extension or renewal of any Obligation.
(b) Each Guarantor waives acceptance hereof, presentation to, demand
for payment from and protest to, as the case may be, any Loan Party or any other
guarantor of any of the Obligations, and also waives notice of protest for
nonpayment, notice of acceleration, notice of intent to accelerate and any other
notice not expressly provided for herein. The obligations of each Guarantor
hereunder shall not be released, discharged or otherwise affected by (i) the
failure of the Administrative Agent or any other Secured Party (as appropriate)
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to assert any claim or demand or to enforce any right or remedy against the
Borrower or any Guarantor or any other guarantor under the provisions of this
Credit Agreement, any Loan Document or any other agreement or otherwise; (ii)
any extension or renewal of any provision hereof or thereof; (iii) the failure
of any Secured Party to obtain the consent of the Guarantor with respect to any
rescission, waiver, compromise, acceleration, supplement, amendment or
modification of any of the terms or provisions of this Credit Agreement, any New
Term Note or of any other agreement; (iv) the release, exchange, waiver,
foreclosure, impairment, non-perfection or invalidity of any security held by
the Administrative Agent, or any guarantee or other liability of any third
party, for the Obligations or any of them; (v) the failure of the Administrative
Agent or the Collateral Agent (as appropriate) to exercise any right or remedy
against any other Guarantor or any other guarantor of the Obligations; (vi) the
release or substitution of any Guarantor or guarantor; (vii) any change in the
corporate existence, structure or ownership of the Borrower, any Guarantor or
other guarantor or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, any Guarantor or other guarantor or its
assets, or any resulting release or discharge of any obligation of the Borrower,
any Guarantor or other guarantor contained in any Loan Document; (viii) the
existence of any claim, set-off or other rights which any Guarantor may have at
any time against the Borrower, any other Guarantor, the Administrative Agent,
the Collateral Agent, any Secured Party or any other Person, whether or not
arising in connection herewith or any unrelated transaction (provided that
nothing herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim); or (ix) any provision of Applicable Law or regulation
purporting to prohibit the payment by the Borrower or any Guarantor of any
amount payable by it under any Loan Document.
(c) Each Guarantor further agrees that this Guaranty constitutes a
guaranty of performance and of payment when due and not just of collection, and
waives any right to require that any resort be had by the Administrative Agent,
the Collateral Agent or any other Secured Party (as appropriate) to any security
held for payment of the Obligations or to any balance of any deposit, account or
credit on the books of the Administrative Agent, the Collateral Agent or any
other Secured Party in favor of the Borrower or any Guarantor, or to any other
Person.
(d) Each Guarantor hereby expressly assumes all responsibilities to
remain informed of the financial condition of the Borrower, the Guarantors and
any other guarantors and any circumstances affecting the Collateral or any Real
Property Assets or the ability of the Borrower to perform under this Credit
Agreement and the other Loan Documents.
(e) Each Guarantor's obligations under the Guaranty shall not be
released, discharged or otherwise affected by the genuineness, validity,
regularity or enforceability of the Obligations, the New Term Notes or any other
instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any Lien on any Collateral securing any
Obligation or by any other circumstance relating to the Obligations or otherwise
which might otherwise constitute a defense to this Guaranty. None of the
Administrative Agent, the Collateral Agent or any New Term Lender makes any
representation or warranty with respect to any such circumstances or has any
duty or responsibility whatsoever to any Guarantor in respect to the management
and maintenance of the Obligations or any collateral security for the
Obligations.
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Section 8.2. No Impairment of Guaranty, etc. Subject to the terms of
the Intercreditor Agreement, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason (except indefeasible payment and performance in full in cash of the
Obligations), including, without limitation, any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise affected by
the failure of the Administrative Agent, the Collateral Agent or any other
Secured Party to assert any claim or demand or to enforce any right or remedy
under this Credit Agreement, any Loan Document or any other agreement, by any
waiver or modification of any provision hereof or thereof, by any default,
failure or delay, willful or otherwise, in the performance of the Obligations,
or by any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of such
Guarantor or would otherwise operate as a discharge of such Guarantor as a
matter of law, unless and until the Bank Credit Termination Date.
Section 8.3. Continuation and Reinstatement, etc. (a) Each Guarantor
further agrees that its Guaranty hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored or returned by any
Secured Party upon the bankruptcy or reorganization of the Borrower or a
Guarantor, or otherwise. In furtherance of the provisions of this Article 8, and
not in limitation of any other right which any Secured Party may have at law or
in equity against the Borrower, a Guarantor or any other Person by virtue
hereof, upon failure of the Borrower to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice or
otherwise, each Guarantor hereby promises to and will, upon receipt of written
demand by the Administrative Agent (acting at the request of a Secured Party and
subject to the Intercreditor Agreement), forthwith pay or cause to be paid to
the Administrative Agent for the benefit of the Secured Parties (as applicable)
in cash an amount equal to the unpaid amount of such Obligation with interest
thereon at a rate of interest equal to the rate specified in Section 2.7(a)
hereof, and thereupon the Administrative Agent shall assign such Obligation and
the Collateral Agent shall assign all security interests, if any, then held by
the Administrative Agent in respect of such Obligation, to the Guarantor or
Guarantors making such payment; such assignment to be subordinate and junior to
the rights of the Collateral Agent with respect to the Collateral on behalf of
the Secured Parties and to the rights of the Administrative Agent with regard to
amounts payable by the Borrower in connection with the remaining unpaid
Obligations (including, without limitation, Post-Petition Interest) and to be
pro tanto to the extent to which the Obligation in question was discharged by
the Guarantor or Guarantors making such payments.
(b) All rights of a Guarantor against the Borrower, arising as a
result of the payment by such Guarantor of any sums to the Administrative Agent
for the benefit of the Secured Parties or directly to the New Term Lenders
hereunder by way of right of subrogation or otherwise, shall in all respects be
subordinated and junior in right of payment to, and shall not be exercised by
such Guarantor until and unless all obligations have been indefeasibly paid in
full in cash. If any amount shall be paid to such Guarantor for the account of
the Borrower, such amount shall be held in trust for the benefit of the
Administrative Agent, segregated from such Guarantor's own assets, and shall
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forthwith be paid to the Administrative Agent on behalf of the Secured Parties
to be credited and applied to the Obligations, whether matured or unmatured.
Section 8.4. Limitation on Guaranteed Amount, etc. Notwithstanding
any other provision of this Article 8, the amount guaranteed by each Guarantor
hereunder shall be limited to the extent, if any, required so that its
obligations under this Article 8 shall not be subject to avoidance under Section
548 of the Bankruptcy Code or to being set aside or annulled under any
Applicable Law relating to fraud on creditors. In determining the limitations,
if any, on the amount of any Guarantor's obligations hereunder pursuant to the
preceding sentence, it is the intention of the parties hereto that any rights of
subrogation or contribution which such Guarantor may have under this Article 8,
any other agreement (including, without limitation, the Contribution Agreement)
or Applicable Law shall be taken into account.
Section 8.5. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by a Loan Party under any Loan Document is stayed
upon the insolvency, bankruptcy or reorganization of such Loan Party, all such
amounts otherwise subject to acceleration under the terms of such Loan Document
shall nonetheless be payable by each of the Guarantors (other than the
applicable Loan Party) under this Article 8 forthwith on demand by the
Administrative Agent made, in the case of any New Term Loans, at the request of
the Required Lenders.
ARTICLE 9
THE ADMINISTRATIVE AGENT
Section 9.1. Administration by the Administrative Agent. (a) The
general administration of the Loan Documents and any other documents
contemplated by this Credit Agreement or any other Loan Document shall be by the
Administrative Agent or its respective designees. Except as otherwise expressly
provided herein, each of the New Term Lenders hereby irrevocably authorizes the
Administrative Agent, at its discretion, to take or refrain from taking such
actions as agent on its behalf and to exercise or refrain from exercising such
rights and/or powers under the Loan Documents, the New Term Notes and any other
documents contemplated by this Credit Agreement or any other Loan Document as
are expressly delegated by the terms hereof or thereof, as appropriate, to the
Administrative Agent together with all actions and all powers reasonably
incidental thereto. The Administrative Agent shall have no duties,
responsibilities or obligations except as expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (i) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default or Event of Default has occurred and is
continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, and (iii) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its respective Subsidiaries
that is communicated to, or obtained by, any institution serving as an
Administrative Agent or any of its Affiliates in any capacity.
(b) The Secured Parties hereby authorize the Administrative Agent (in
its sole discretion):
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(i) to enter into and perform its obligations under the Loan
Documents; and
(ii) to enter into intercreditor and/or subordination agreements
on terms acceptable to the Administrative Agent with Persons who have been
granted Liens which are permitted pursuant to Section 6.2 hereof.
Section 9.2. Payments; Application of Proceeds. (a) Notwithstanding
anything to the contrary contained in this Credit Agreement or any other Loan
Document, any amounts received by the Administrative Agent constituting income
or proceeds of the Collateral or the Pledged Shares pursuant to the Loan
Documents, or any other amount or payment received by it in respect of the
Collateral or the Pledged Shares under, pursuant to, or in connection with any
of the Loan Documents, shall be remitted to the Collateral Agent and applied in
accordance with the terms of the Intercreditor Agreement.
(b) All other amounts or payments received under this Credit
Agreement or any other Loan Document that shall not otherwise constitute income
or proceeds of the Collateral or the Pledged Shares, or any other payment or
amount in respect thereof, the application of which is not otherwise provided
for in the Intercreditor Agreement, (including as a result of or in connection
with a proceeding under the Bankruptcy Code or any other similar state law
proceeding involving the Borrower or any other Loan Party) shall be applied by
the Administrative Agent to the payment of the Obligations in the following
order:
(i) FIRST, to pay reasonable fees, costs and expenses of the
Administrative Agent and the Collateral Agent;
(ii) SECOND, to pay interest accrued but unpaid on the New Term
Loans on a pro rata basis to each New Term Lender;
(iii) THIRD, to pay the principal balance outstanding of the New
Term Loans on a pro rata basis to each New Term Lender;
(iv) FOURTH, to pay the remainder of the Obligations or any
other amounts then due under this Credit Agreement or any other Loan Document;
and
(v) FIFTH, the balance, if any, after all Obligations have been
paid in full in cash, shall be returned to the Borrower or paid over to such
other Person as a court of competent jurisdiction shall direct.
All amounts to be paid to any New Term Lender by the Administrative
Agent shall be credited to that New Term Lender, after collection by the
Administrative Agent, in immediately available funds either by wire transfer or
deposit in such New Term Lender's correspondent account with the Administrative
Agent, or as such New Term Lender and the Administrative Agent shall agree in
writing from time to time.
Section 9.3. Right of Set-Off; Sharing of Set-offs; Defaulting New Term Lender.
Subject to the terms of the Intercreditor Agreement, (a) if an Event of Default
shall have occurred and be continuing, each New Term Lender, and each of its
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respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by Applicable Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such New Term Lender, or
Affiliate to or for the credit or the account of the Borrower, or any other Loan
Party against any and all of the obligations of the Borrower, or any other Loan
Party, as the case may be, now or hereafter existing under this Credit Agreement
or any other Loan Document held by such New Term Lender, or Affiliate,
irrespective of whether or not such New Term Lender or Affiliate shall have made
any demand under this Credit Agreement and although such obligations may be
unmatured. The rights of each New Term Lender and each Affiliate under this
Section 9.3 are in addition to other rights and remedies (including other rights
of setoff) which such New Term Lender or Affiliate may have; provided that such
rights are at all times subject to the terms of the Intercreditor Agreement. Any
New Term Lender agrees promptly to notify the applicable Loan Party after any
such set-off; provided, that the failure to so notify shall not affect the
validity or enforceability of such set-off.
(b) If any New Term Lender shall, by exercising any right of banker's
lien, set-off or counterclaim (including, without limitation, a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim and received by such New Term Lender
under any applicable bankruptcy, insolvency or other similar law) or otherwise,
obtain payment in respect of any principal of or interest on any of its New Term
Loans resulting in such New Term Lender receiving payment of a greater
proportion of the aggregate amount of its New Term Loans and accrued interest
thereon than the proportion received by any other New Term Lender, then the New
Term Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the New Term Loans of other New Term Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the
New Term Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective New Term Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to (W) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Credit Agreement (including, without limitation, pursuant to
Section 2.6) and (X) any payment obtained by a New Term Lender as consideration
for the assignment of, or sale of a participation in, any of its New Term Loans
to any assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this Section 9.3(b) shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under Applicable Law, and subject to the terms of the
Intercreditor Agreement, that any New Term Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights
of banker's lien, set-off and counterclaim with respect to such participation as
fully as if such New Term Lender were a direct creditor of the Borrower in the
amount of such participation.
Section 9.4. Notice to the New Term Lenders. Upon receipt by the
Administrative Agent from any of the Loan Parties of any communication calling
for an action on the part of the New Term Lenders or upon written notice to the
Administrative Agent of any Event of Default, the Administrative Agent will in
turn promptly inform the Collateral Agent (if the Administrative Agent is not
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the Collateral Agent) and the New Term Lenders in writing (which shall include
facsimile communications) of the nature of such communication or of the Event of
Default, as the case may be. The Administrative Agent shall not be deemed to
have knowledge of any Default or Event of Default unless and until written
notice thereof is given to such Administrative Agent by the Borrower, the
Administrative Agent or a New Term Lender.
Section 9.5. Liability of the Collateral Agent and the Administrative
Agent. (a) The Administrative Agent, when acting on behalf of the other New Term
Lenders, may execute any of its duties under this Credit Agreement or the other
Loan Documents by or through its directors, officers, agents, or employees and
neither the Administrative Agent, nor their respective officers, agents or
employees shall be liable to the New Term Lenders or any of them for any action
taken or omitted to be taken in good faith, nor be responsible to the New Term
Lenders or to any of them for the consequences of any oversight or error of
judgment, or for any loss, unless the same shall happen through its gross
negligence or willful misconduct as determined by a final and non-appealable
order or judgment of a court of competent jurisdiction. The Administrative Agent
and its directors, officers, agents, and employees shall in no event be liable
to the New Term Lenders or to any of them for any action taken or omitted to be
taken by it pursuant to instructions received by it from, or with the consent
of, the Required Lenders or such number or percentage of the New Term Lenders as
shall be necessary as provided in Section 10.11, as the case may be, or in
reliance upon the advice of counsel selected by it. Without limiting the
foregoing, neither of the Administrative Agent nor any of their respective
directors, officers, employees, or agents shall be responsible to any of the New
Term Lenders for or have any duty to ascertain or inquire into the due
execution, validity, genuineness, effectiveness, sufficiency, or enforceability
of, or for any statement, warranty, or representation in, or for the perfection
of any security interest or Lien contemplated by, this Credit Agreement, any
other Loan Document or any related agreement, instrument, document or order, or
for the contents of any certificate, report or other document delivered in
connection with any Loan Document or for freedom of any of the Collateral from
prior Liens or security interests, or shall be required to ascertain or to make
any inquiry concerning the performance or observance by the Borrower or any
other Loan Party of any of the terms, conditions, covenants, or agreements of
this Credit Agreement, any other Loan Document, or any related agreement,
instrument, document, or order.
(b) Neither of the Administrative Agent (in its capacity as agent for
the New Term Lenders), nor any of its directors, officers, employees, or agents
shall have any responsibility to the Borrower or any other Loan Party on account
of the failure or delay in performance or breach by any of the New Term Lenders
of any of such New Term Lender's obligations under this Credit Agreement, the
other Loan Documents or any related agreement or document or in connection
herewith or therewith. No New Term Lender or any of its directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure or delay in performance or breach by any
other New Term Lender of such other New Term Lender's obligations under this
Credit Agreement, the other Loan Documents or any related agreement or document
or in connection herewith or therewith.
(c) The Administrative Agent as agent for the New Term Lenders
hereunder, shall be entitled to conclusively rely on, and shall fully be
protected in relying on, any notice, request, certificate, consent, statements,
communication, instrument, document or other writing believed by it to be
genuine or correct and to have been signed or sent by a Person or Persons
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believed by it to be the proper Person or Persons. The Administrative Agent
shall also be entitled to conclusively rely upon any statement made to it orally
or by telephone and believed by it to be made by the proper Person, and shall
not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other professional advisors and experts selected by it,
and shall be entitled to rely on advice of, and shall not be liable for any
action taken or not taken by it in accordance with the advice of, any such
counsel, accountants, advisors or experts.
(d) None of the provisions of this Credit Agreement shall require the
Administrative Agent or the Collateral Agent to expend or risk its own funds or
otherwise to incur any liability, financial or otherwise, in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or indemnity satisfactory to it against such risk or liability is not assured to
it.
(e) Whenever in the administration of the provisions of this Credit
Agreement the Administrative Agent or the Collateral Agent shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering any action to be taken hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence of
gross negligence, willful misconduct or bad faith on the part of the
Administrative Agent or the Collateral Agent, be deemed to be conclusively
proved and established by a certificate signed by the New Term Lenders and
delivered to the Administrative Agent or the Collateral Agent and such
certificate, in the absence of gross negligence, willful misconduct or bad faith
on the part of the Administrative Agent or the Collateral Agent, shall be full
warrant to the Administrative Agent or the Collateral Agent for any action
taken, suffered or omitted by it under the provisions of this Credit Agreement
upon the faith thereof.
Section 9.6. Reimbursement and Indemnification. Each of the New Term
Lenders agrees (i) to reimburse the Administrative Agent for such New Term
Lender's pro rata share (determined at the time such reimbursement is sought
hereunder) of any expenses and fees incurred for the benefit of the New Term
Lenders under the Loan Documents, including, without limitation, counsel fees
and compensation of agents, employees, financial advisors and other
professionals paid for services rendered for the benefit of the New Term
Lenders, and any other expense incurred in connection with the operation or
administration of the Loan Documents or the enforcement thereof not reimbursed
by or on behalf of the Borrower and (ii) to indemnify and hold harmless the
Administrative Agent, and any of its directors, officers, employees, or agents,
on demand, in the amount of its pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against, it or any of them in any way
relating to or arising out of any of the Loan Documents or any related agreement
or document, or any action taken or omitted by it or any of them under any of
the Loan Documents or any related agreement or document, to the extent not
reimbursed by or on behalf of the Borrower or any other Loan Party (except such
as shall result from the gross negligence or willful misconduct of the Person to
be indemnified or held harmless, as applicable. To the extent indemnification
payments made by the New Term Lenders pursuant to this Section 9.6 are
subsequently recovered by the Administrative Agent or from a Loan Party, the
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Administrative Agent will promptly refund such previously paid indemnity
payments to the New Term Lenders. The obligations of the New Term Lenders
pursuant to this Section 9.6 shall survive the earlier registration or removal
of the Administrative Agent or Bank Credit Termination Date.
Section 9.7. Independent Investigation by New Term Lenders. Each of
the New Term Lenders acknowledges that it has decided to enter into this Credit
Agreement and the other Loan Documents independently and without reliance upon
any Agent or any other New Term Lender, based on such documents and information
as it has deemed appropriate, and based its own analysis of the transactions
contemplated hereby and by the other Loan Documents and of the creditworthiness
of the Loan Parties; and each of the New Term Lenders agrees that none of the
New Term Lenders shall bear any responsibility therefor. Each New Term Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other New Term Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Credit
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
Section 9.8. Delegation to Sub-Agents. The Administrative Agent may
perform any and all of its duties and exercise any of its rights and powers by
or through any one or more subagents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agents may perform any and all of their
duties and exercise rights and powers through their respective Related Parties.
The exculpatory provisions of this Article 9 shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent.
Section 9.9. Agreement of the New Term Lenders. Upon any occasion
requiring or permitting an approval, consent, waiver, election or other action
on the part of the Required Lenders, action shall be taken by the Administrative
Agent for and on behalf of, or for the benefit of, all New Term Lenders upon the
direction of the Required Lenders and any such action shall be binding on all
New Term Lenders. No amendment, modification, consent or waiver shall be
effective except in accordance with the provisions of Section 10.11 hereof.
Section 9.10. Notice of Transfer. The Administrative Agent may deem
and treat any New Term Lender which is a party to this Credit Agreement as the
owner of such New Term Lender's respective portions of the New Term Loans for
all purposes, unless and until a written notice of the assignment or transfer
thereof executed by any such New Term Lender shall have been received by the
Administrative Agent and shall have become effective in accordance with Section
10.3 hereof.
Section 9.11. Resignation of Administrative Agent; Successor
Administrative Agent. The Administrative Agent may resign at any time by giving
written notice thereof to the New Term Lenders and the Borrower, but such
resignation of the Administrative Agent shall not become effective until
acceptance by a successor administrative agent of its appointment pursuant
hereto. Upon any such resignation, the retiring Administrative Agent shall
promptly appoint a successor administrative agent from among the New Term
Lenders which successor shall be experienced and sophisticated in lending;
provided that such replacement is reasonably acceptable (as evidenced in
writing) to the Required Lenders and the Borrower; provided, however, that such
approval by the Borrower shall not be required at any time when a Default or a
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Event of Default is continuing. If no successor Administrative Agent shall have
been so appointed by the retiring Administrative Agent and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation, the Borrower may appoint a successor
administrative agent; provided that any such successor must (a) be experienced
and sophisticated in lending, (b) be reasonably acceptable to the Required
Lenders, (c) be either a New Term Lender or a commercial bank organized under
the laws of the United States of America or of any State thereof and (d) have a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Credit Agreement, the other Loan
Documents and any other credit documentation and (c) such successor
Administrative Agent shall execute such documents, as may be reasonably
requested by the retiring Administrative Agent, or required pursuant to the
terms of the Loan Documents in order to assume or confirm such successor
Administrative Agent's rights, powers, privileges, duties and obligations under
any such Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 9 shall inure
to benefit of such retiring Administrative Agent, its sub-agents and its Related
Parties as to any actions taken or omitted to be taken by any of them while it
was Administrative Agent or acting on behalf of the Administrative Agent under
this Credit Agreement and the other Loan Documents.
Section 9.12. New Term Lender Payments. (a) Except as otherwise
provided herein, all payments by any New Term Lender hereunder shall be made to
the Administrative Agent at the office of Deutsche Bank Trust Company Americas,
ABA # 000000000, A/C # 01419647, A/C Name: Corporate Trust, Ref: New Term Lender
Account, Account # 37090, Attn: Xxxx Xxxxxxxx, not later than 12:00 p.m. All
payments received after such time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America.
(b) If the Administrative Agent or any New Term Lender is required at
any time to return to the Borrower, or to a trustee, receiver, liquidator,
custodian, or any official under any proceeding under any debtor relief law, any
portion of a payment made by the Borrower, each New Term Lender agrees that it
shall, on demand of the Administrative Agent, return its share of the amount to
be returned which was received by the applicable New Term Lender, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate.
ARTICLE 10
MISCELLANEOUS
Section 10.1. Notices. (a) Except in the case of notices and other
communications that are expressly permitted to be given only by telephone, all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand, overnight courier, certified or registered mail or
sent by facsimile addressed as follows:
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(i) if to the Administrative Agent, to it as follows:
Deutsche Bank Trust Company Americas
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000/2227
Email: xxxx.xxxxxxxx@xx.xxx
(ii) if to any New Term Lender, to it at its address (or facsimile number
or email address) set forth in its signature page hereto;
(iii) if to the Borrower or any other Loan Party, to it as follows:
Thermadyne Holdings Corporation
00000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Mr. Xxxxx Xxxx
Fax: (000) 000-0000
or
For administrative notices:
Thermadyne Holdings Corporation
00000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Fax: (000) 000-0000
with copies to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: R. Xxxxx Xxxxx
Fax: (000) 000-0000
or such other address as such party may from time to time designate by giving
written notice to the other parties hereunder. Any failure of any Person giving
notice pursuant to this Section 10.1, to provide a courtesy copy to a party as
provided herein, shall not affect the validity of such notice. All notices and
other communications given to any party hereto in accordance with the provisions
of this Credit Agreement shall be deemed to have been given (w) on the third
Business Day after the date when sent, postage prepaid, return receipt
requested, if by certified or registered mail, (x) when delivered, if delivered
by hand or overnight courier service, (y) when receipt is acknowledged, if by
facsimile or (z) in each case addressed to such party as provided in this
Section 10.1 or in accordance with the latest unrevoked written direction from
such party.
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(b) No notice to or demand on any of the Loan Parties on any occasion
shall entitle such Loan Party or any other Loan Party to any other or further
notice or demand in the same, similar or other circumstances, unless otherwise
expressly required under this Credit Agreement.
Section 10.2. Survival of Agreement, Representations and Warranties,
etc. All warranties, representations, agreements and covenants made by any of
the Loan Parties herein, in any other Loan Document or in any certificate or
other instrument delivered by it or on its behalf in connection with or pursuant
to this Credit Agreement or any other Loan Document shall be considered to have
been relied upon by the Administrative Agent and the New Term Lenders and,
except for any terminations, amendments, modifications or waivers thereof in
accordance with the terms hereof, shall survive the execution and delivery of
this Credit Agreement, and the execution and delivery of the New Term Notes, in
each case, regardless of any investigation made by the Administrative Agent, or
any of the New Term Lenders or on their behalf and notwithstanding the
Administrative Agent, or any New Term Lender may have had notice or knowledge of
any Default or Event of Default or incorrect representation or warranty at the
time any credit is extended hereunder, and shall continue in full force and
effect so long as any Obligation is outstanding and unpaid. All statements in
any such certificate or other instrument delivered in connection with, or
pursuant to this Credit Agreement or other Loan Document shall constitute
representations and warranties by the Loan Parties hereunder.
Section 10.3. Successors and Assigns; Syndications; Loan Sales;
Participations. (a) Whenever in this Credit Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party; provided, however, that neither the Borrower
nor any other Loan Party may assign or transfer any of its rights or obligations
hereunder or under any other Loan Document without the prior written consent of
the Administrative Agent and all of the New Term Lenders (and any attempted
assignment on transfer without such consent shall be null and void) other than
transactions permitted in Section 6.7 hereof, and all covenants, promises and
agreements by or on behalf of any of the Loan Parties which are contained in
this Credit Agreement or any other Loan Document shall inure to the benefit of
the successors and assigns of the Administrative Agent and the New Term Lenders.
Nothing in this Credit Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the New Term Lenders) any legal or equitable right, remedy or claim under or by
reason of this Credit Agreement or any other Loan Document.
(b) Each of the New Term Lenders may (but, except to the extent
otherwise expressly provided in Section 10.3(c) below), upon prior notice to the
Administrative Agent assign to one or more New Term Lenders or an Eligible
Assignee all or a portion of its interests, rights and obligations under this
Credit Agreement (including, without limitation, all or a portion of the New
Term Loan at the time owing to it and any New Term Note held by it); provided,
however, that (i) each assignment shall be of a constant, and not a varying,
percentage of the assigning New Term Lender's interests, rights and obligations
under this Credit Agreement, (ii) each assignment of the New Term Loan shall (Y)
in the case of a Loan, be in a minimum Loan amount of $1,000,000 (or such lesser
amount as shall equal the assigning New Term Lender's entire Loan) and (iii)
after giving effect to such assignment, the assigning New Term Lender's
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remaining outstanding New Term Loan outstanding (as appropriate) shall each
either be zero or an amount equal to $1,000,000 or more, (iv) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register (as defined below), an Assignment
and Acceptance substantially in the form of Exhibit C hereto (which shall
include a signature page substantially in the form of the signature pages hereto
for the New Term Lenders), together with the assigning New Term Lender's
original note (if any) evidencing the New Term Loan or being assigned and a
processing and recordation fee of $3,500 to be paid to the Administrative Agent
by the assigning New Term Lender or the assignee (which fee shall also be
payable in the case of an assignment by a New Term Lender to an Affiliate of
such New Term Lender, however, the amount of such fee shall be $1,500 in such
case and in the case of an assignment by a New Term Lender to another New Term
Lender hereunder or in the case of an assignment by a New Term Lender to a
Related Fund) and (v) it shall deliver to the Borrower and the Administrative
Agent certification as to the exemption from deduction or withholding of any
United States federal income taxes in accordance with Section 2.12. Upon such
execution, delivery, acceptance and recording in the Register, from and after
the effective date specified in each Assignment and Acceptance, which effective
date shall not (unless otherwise agreed to by the Administrative Agent) be later
than five (5) Business Days after the date of acceptance and recording in the
Register by the Administrative Agent, (x) the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a New Term Lender hereunder and under the other
Loan Documents and shall be bound by the provisions hereof; provided, however,
that such assignee shall not be entitled to receive any greater payment under
Section 2.12 (disregarding any future benefits of payments that may arise with
respect to such assignee) than the assigning New Term Lender would have received
had such assignment not occurred and (y) the assigning New Term Lender
thereunder shall, to the extent provided in such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Credit
Agreement except that, notwithstanding such assignment, any rights and remedies
available to the Borrower for any breaches by such assigning New Term Lender of
its obligations hereunder while a New Term Lender shall be preserved after such
assignment, and such New Term Lender shall not be relieved of any liability to
the Borrower due to any such breach. In the case of an Assignment and Acceptance
covering all or the remaining portion of the assigning New Term Lender's rights
and obligations under this Credit Agreement, such assigning New Term Lender
shall cease to be a party hereto (but shall be entitled to the benefits of
Sections 2.9, 2.10, 2.12, 10.4 and 10.5 hereof).
(c) Each New Term Lender, in accordance with Section 10.3(b) above
(other than the provisions of the first parenthetical phrase appearing therein)
may at any time make an assignment of its interests, rights and obligations
under this Credit Agreement, upon prior written notice to the Administrative
Agent, to any other New Term Lender hereunder; provided, that with respect to
any assignment to another New Term Lender hereunder (X) the assignment of the
New Term Loan shall be in a minimum amount of $1,000,000 (or such lesser amount
as shall equal the assigning New Term Lender's entire Loan), and (Y) after
giving effect to such assignment, the assigning New Term Lender's remaining New
Term Loan outstanding shall either be zero or an amount equal to $1,000,000 or
more. Any such assignment to any Affiliate or Related Fund of the assigning New
Term Lender shall not be subject to the requirement that the amount of the New
Term Loan of the assigning New Term Lender subject to each assignment be in a
minimum principal amount of $1,000,000.
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(d) By executing and delivering an Assignment and Acceptance, the
assigning New Term Lender thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
the representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby and that such interest is free and clear of any
adverse claim, the assigning New Term Lender makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or any other
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any of the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto; (ii) such
assignor New Term Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any of the Loan
Parties or the performance or observance by any of the Loan Parties of any of
their respective obligations under the Loan Documents or any other instrument or
document furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of this Credit Agreement, together with copies of the most
recent Financial Statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or
if none of such Financial Statements shall have then been delivered, then copies
of the Financial Statements referred to in Section 3.6(a) hereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee agrees that it will, independently and without reliance upon the
assigning New Term Lender, the Administrative Agent, any other New Term Lender
or any other Secured Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Credit Agreement, any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto; (v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will be
bound by the provisions of this Credit Agreement and the other Loan Documents
and will perform in accordance with their terms all of the obligations which by
the terms of this Credit Agreement and the other Loan Documents are required to
be performed by it as a New Term Lender.
(e) The Administrative Agent shall maintain at one of its offices in
any State of the United States, a copy of each Assignment and Acceptance and a
register for the recordation of the names and addresses of the New Term Lenders,
the principal amount of the New Term Loan, and interest amounts, owing to each
New Term Lender from time to time and the amount of principal and interest paid
with respect to each New Term Loan to each New Term Lender and amounts due and
payable or to become due and payable and amounts paid by the Borrower to the
Administrative Agent from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of manifest error, and the Loan
Parties, the Administrative Agent and the New Term Lenders may treat each Person
whose name is recorded in the Register as a New Term Lender hereunder for all
purposes of the Loan Documents. The Register shall be available for inspection
by any Loan Party or any New Term Lender at any reasonable time and from time to
time upon reasonable prior notice. Any assignment of the New Term Loan or
whether or not evidenced by a New Term Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. Any
assignment or transfer of all or part of the New Term Loan evidenced by a New
Term Note shall be registered on the Register only upon surrender of the New
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Term Note evidencing such New Term Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more New Term Notes shall be
issued to the assignee and the old New Term Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled".
(f) Subject to the foregoing, upon its receipt of an Assignment and
Acceptance executed by an assigning New Term Lender and an assignee together
with the assigning New Term Lender's original note (if any) evidencing the New
Term Loan or being assigned thereby, the processing and recordation fee and
evidence of the Administrative Agent's and the Borrower's written consent to
such assignment (as required), the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt written
notice thereof to the Borrower. Within five (5) Business Days after receipt of
the notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for any surrendered New Term Note, a New Term
Note to the order of such assignee and its registered assigns in an amount equal
to the principal amount of the New Term Loan (as appropriate) assumed by the
assignee New Term Lender pursuant to such Assignment and Acceptance and if the
assigning New Term Lender has retained any portion of the New Term Loan
hereunder, a New Term Note to the order of the assigning New Term Lender and its
registered assigns in an amount equal to the principal amount of the New Term
Loan retained by it hereunder. Such New Term Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of the surrendered New
Term Note (or if applicable, the outstanding principal amount of the New Term
Loan owed to the assigning New Term Lender immediately preceding the relevant
assignment), shall be dated the date of the surrendered New Term Note and shall
otherwise be in substantially the form of the surrendered note.
(g) Each of the New Term Lenders may, without the consent of any of
the Loan Parties, the Administrative Agent or the other New Term Lenders, sell
participations to one or more banks or other financial institutions, investing
companies or funds in all or a portion of its rights and obligations under this
Credit Agreement (including, without limitation, all or a portion of the New
Term Loan at the time owing to it and any related New Term Note; provided,
however, that (i) any such New Term Lender's obligations under this Credit
Agreement shall remain unchanged and it shall remain solely responsible to the
other parties hereto for the performance of such obligations, (ii) any agreement
or instrument pursuant to which a New Term Lender sells such a participation
shall provide that such New Term Lender shall retain the sole right to enforce
the Loan Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents and that such participant shall not be granted
any voting rights or any right to control the vote of such New Term Lender under
this Credit Agreement by the New Term Lender selling a participation hereunder,
except that such participant may be granted voting rights (or a right to control
the vote of such New Term Lender under this Credit Agreement) with respect to
(A) proposed decreases to interest rates or Fees, (B) any extensions of the
final maturity of the New Term Loan and Fees (in each case, as applicable to
such participant), (D) releases of all or substantially all the Collateral and
(iii) the participating banks or other entities shall be entitled to the cost
protection provisions, and subject to the obligations, contained in Sections
2.9, 2.10 and 2.11 hereof, but a participant shall not be entitled to receive
pursuant to such provisions an amount larger than its share of the amount to
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which the New Term Lender granting such participation would have been entitled
to receive, unless the sale of the participation was made with the Borrower's
prior written consent, (iv) the Loan Parties, the Administrative Agent and the
other New Term Lenders shall continue to deal solely and directly with such New
Term Lender in connection with such New Term Lender's and its participants'
rights and obligations under this Credit Agreement, and (v) such New Term
Lender, acting for this purpose as an agent for the Borrower, shall maintain at
one of its offices a copy of the agreement pursuant to which such participation
is granted (the "Participation Agreement") and each agreement pursuant to which
any interest in such participation is assigned by the participant, and a
register for the recordation of the names and addresses of each participant (and
any such assignee of such participation), its respective interests in the
principal amounts of the New Term Loan, and interest amounts, owing to the New
Term Lender (the "Participant Register") and such New Term Lender shall collect
prior to the time such participant receives payments with respect to such
participation from each such participant the appropriate forms and statements
described in Section 2.12 (and updated as required by Section 2.12) as if such
participant were a New Term Lender under Section 2.12. Each such Participation
Agreement shall provide that such participation (and any assignment thereof)
shall be effective upon recordation in such Participation Register.
(h) A New Term Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.3, disclose to the assignee or participant or proposed assignee or
participant (provided such assignee or participant or proposed assignee or
participant is not a direct competitor of any material business of the Loan
Parties) any information relating to any of the Loan Parties or their
Subsidiaries furnished to the Administrative Agent or such New Term Lender by or
on behalf of the Borrower or any other Loan Party; provided, that prior to any
such disclosure, each such assignee or participant or proposed assignee or
participant shall agree in writing to be bound by the provisions of Section
10.17 hereof.
(i) Any assignment pursuant to paragraph (b) or (c) of this Section
10.3 shall constitute an amendment of Schedule 2.1(a) hereto (Schedule of
Outstanding New Term Loans) as of the effective date of such assignment.
(j) Any New Term Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit Agreement to
secure obligations of such New Term Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank, and this Section 10.3 shall not
apply to any such pledge or assignment of a security interest; provided,
however, that no such pledge or assignment of a security interest shall release
a New Term Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such New Term Lender as a party hereto.
Section 10.4. Expenses. Whether or not the transactions hereby
contemplated shall be consummated, the Borrower agrees to pay (a) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent and/or the other individual members of the steering committee in
connection with, or arising out of, the performance of due diligence, the
negotiation, preparation, execution, delivery, waiver or modification and
administration of this Credit Agreement and any other documentation contemplated
hereby, the New Term Loans, the Collateral, the Pledged Shares, any Real
Property Asset or any Loan Document, including but not limited to, the
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reasonable out-of-pocket, costs and internally allocated charges of legal
counsel or audit or field examinations of the Administrative Agent or the other
individual members of the steering committee in connection with the preparation,
negotiation and administration of this Credit Agreement, the verification of
financial data or the transactions contemplated hereby, and the reasonable fees
and disbursements of CCV Restructuring, LLC, Xxxxxx & Xxxxxx LLP, counsel for
the Administrative Agent and the Collateral Agent, Xxxxxxxx Chance US LLP,
counsel for ABN AMRO Bank N.V., as a New Term Lender, and (b) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent or any New Term Lender in connection with the enforcement or protection
(as distinguished from administration) of its rights and remedies (or the rights
and remedies of the Administrative Agent, the New Term Lenders or the other
Secured Parties) in connection with this Credit Agreement, the other Loan
Documents, the New Term Loan or any New Term Note or as a result of any
transaction, action or non-action arising from any of the foregoing, incurred
during any workout, restructuring or negotiations in respect of the New Term
Loan, including but not limited to, the reasonable fees and disbursements of any
counsel for the Administrative Agent, the Collateral Agent or any of the New
Term Lenders. Such payments shall be made on demand. The obligations of the
Borrower under this Section 4 shall survive the Bank Credit Termination Date,
the termination of this Credit Agreement and the payment of the New Term Loans.
Section 10.5. Indemnity. The Borrower agrees to indemnify and hold
harmless the Administrative Agent, the Collateral Agent and each New Term
Lender, and their respective Related Parties (each of the foregoing, an
"Indemnified Party"), to the full extent permitted by Applicable Law, from and
against any and all claims, demands, losses, judgments, damages, expenses and
liabilities (including, without limitation, liabilities for penalties) incurred
by or asserted against any of them as a result of, or arising out of, or in any
way related to, or by reason of, any actual or prospective investigation, claim,
litigation or other proceeding (whether based on contract, tort or other theory
and regardless of whether or not any Indemnified Party is a party thereto)
related to the entering into and/or performance of any Loan Document or any
other agreement or instrument contemplated thereby or the use of the proceeds of
any New Term Loans hereunder or the consummation of any other transaction
contemplated in any Loan Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, claim, litigation or other proceeding (but excluding any such
claims, demands, losses, judgments, damages, expenses and liabilities of an
Indemnified Party to the extent incurred by reason of the gross negligence or
willful misconduct of such Indemnified Party as determined by a final
non-appealable order or judgment of a court of competent jurisdiction). If any
proceeding, including any governmental investigation, shall be instituted
involving any Indemnified Party, in respect of which indemnity may be sought
against the Borrower, such Indemnified Party shall promptly notify the Borrower
in writing, and the Borrower shall assume the defense thereof on behalf of such
Indemnified Party including the employment of counsel (reasonably satisfactory
to such Indemnified Party) and payment of all reasonable fees and expenses. Any
Indemnified Party shall have the right to employ separate counsel in any such
proceeding and participate in the defense thereof, but the fees and expenses of
such separate counsel shall be at the expense of such Indemnified Party unless
(i) the employment of such separate counsel has been specifically authorized by
the Borrower or (ii) the named parties to any such action (including any
impleaded parties) include such Indemnified Party and the Borrower and such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnified Party which are different from
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or in addition to those available to the Borrower (in which case the Borrower
shall not have the right to assume the defense of such action on behalf of such
Indemnified Party). At any time after the Borrower has assumed the defense of
any proceeding involving any Indemnified Party in respect of which indemnity has
been sought against the Borrower, such Indemnified Party may elect, by written
notice to the Borrower, to withdraw its request for indemnity and thereafter the
defense of such proceeding shall be maintained by counsel of the Indemnified
Party's choosing and at the Indemnified Party's expense. The foregoing indemnity
agreement includes any reasonable costs incurred by an Indemnified Party in
connection with any action or proceeding which may be instituted in respect of
the foregoing by the Administrative Agent, by the Collateral Agent or by any
other Person either against the Administrative Agent, the Collateral Agent or
the New Term Lenders or in connection with which any officer or employee of the
Administrative Agent, the Collateral Agent or the New Term Lenders is called as
a witness or deponent, including, but not limited to, the reasonable fees and
disbursements of CCV Restructuring, LLC, Xxxxxx & Xxxxxx LLP, counsel to the
Administrative Agent, Xxxxxxxx Chance US LLP, counsel to ABN AMRO Bank N.V., as
a New Term Lender, and any reasonable out-of-pocket costs incurred by the
Administrative Agent, the Collateral Agent or any New Term Lender in appearing
as a witness or in otherwise complying with legal process served upon them. The
obligations of the Borrower under this Section 10.5 shall survive the Bank
Credit Termination Date, the termination of this Credit Agreement and the
payment of the New Term Loans and shall inure to the benefit of any Person who
is a New Term Lender notwithstanding such Person's assignment of its New Term
Loan hereunder. Any amount due under this Section 10.5 shall be payable by the
Borrower promptly after written demand therefor.
If a Loan Party shall fail to do any act or thing which it has
covenanted to do hereunder or under a Loan Document, or any representation or
warranty of a Loan Party shall be breached, the Administrative Agent may (but
shall not be obligated to) do the same or cause it to be done or remedy any such
breach, and there shall be added to the Obligations hereunder the cost or
expense incurred by the Administrative Agent in so doing, and any and all
amounts expended by the Administrative Agent in taking any such action shall be
repayable to it upon its demand therefor and shall bear interest at the rate per
annum set forth in Section 2.7(a)(iii) from time to time in effect from the date
advanced to the date of repayment.
Section 10.6. CHOICE OF LAW. THIS CREDIT AGREEMENT, THE OTHER LOAN
DOCUMENTS AND ANY NEW TERM NOTE SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES AND BY FEDERAL LAW TO THE EXTENT APPLICABLE;
PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MORTGAGE FILED IN A JURISDICTION
OUTSIDE THE STATE OF NEW YORK, THE LAWS OF SUCH JURISDICTION WHERE SUCH MORTGAGE
WAS FILED SHALL APPLY.
Section 10.7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON (WHETHER
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DIRECTLY OR INDIRECTLY) THIS CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF, ANY
OTHER LOAN DOCUMENT OR THE SUBJECT MATTER THEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO
THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH
SUCH OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS
CREDIT AGREEMENT AND ANY OTHER LOAN DOCUMENT. ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.7 WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF ANY OTHER PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
Section 10.8. WAIVER WITH RESPECT TO DAMAGES. EACH LOAN PARTY
ACKNOWLEDGES THAT NONE OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR THE
NEW TERM LENDERS HAS ANY FIDUCIARY RELATIONSHIP WITH, OR FIDUCIARY DUTY TO, ANY
LOAN PARTY ARISING OUT OF OR IN CONNECTION WITH THIS CREDIT AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT AND THE NEW TERM LENDERS, ON THE ONE HAND, AND THE LOAN
PARTIES, ON THE OTHER HAND, IN CONNECTION THEREWITH IS SOLELY THAT OF CREDITOR
AND DEBTOR. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LOAN PARTY SHALL
ASSERT, AND EACH LOAN PARTY HEREBY WAIVES, ANY CLAIMS AGAINST THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT, ANY NEW TERM LENDER OR ANY OTHER INDEMNIFIED PARTY
ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION
WITH, OR AS A RESULT OF, THIS CREDIT AGREEMENT, ANY LOAN DOCUMENT, ANY AGREEMENT
OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, THE NEW TERM LOAN OR THE USE OF THE PROCEEDS THEREOF.
Section 10.9. No Waiver. No failure on the part of the Administrative
Agent, the Collateral Agent or any New Term Lender to exercise, and no delay in
exercising, any right, power or remedy hereunder, under any New Term Note, or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy or any abandonment
or discontinuance of steps to enforce any such right, power or remedy, preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. All rights, powers and remedies hereunder and under the Loan
Documents are cumulative and are not exclusive of any other rights, powers and
remedies provided by Applicable Law or otherwise. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by Section 10.11
hereof, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the continuation or conversion of a Loan hereunder shall not be
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construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent or any New Term Lender may have had notice or knowledge
of such Default or Event of Default at the time.
Section 10.10. Extension of Payment Date. Except as otherwise
specifically provided in Article 2 hereof, should any payment or prepayment of
principal of or interest on the New Term Loan or any other amount due hereunder
or under any other Loan Document, become due and payable on a day other than a
Business Day, the due date of such payment, prepayment or other amount shall be
extended to the next succeeding Business Day and, in the case of a payment or
prepayment of principal, interest shall be payable thereon at the rate herein
specified during such extension.
Section 10.11. Amendments, etc. (a) Unless otherwise provided herein,
neither this Credit Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this
Credit Agreement, pursuant to an agreement or agreements in writing entered into
by the Borrower, the other Loan Parties and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties that
are parties thereto, in each case with the consent of the Required Lenders;
provided, that no such agreement, without the written consent of each New Term
Leader, shall (i) reduce the principal amount of the New Term Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, (ii) postpone
the scheduled date of payment of the principal amount of the New Term Loan or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, (iii) change Section 2.14(b) or 9.3(b) in a
manner that would alter the pro rata sharing of payments required thereby, (iv)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of New Term Lenders required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, (v)
release substantially all of the Guarantors from their respective Guaranty
hereunder (except as expressly provided herein), or limit its liability in
respect of such Guaranty, (vi) release all or substantially all of the
Collateral, or (vii) change the definition of "Interest Period" to provide for
additional interest periods permitted thereby that are longer than those such
periods permitted on the Effective Date; provided, further, that no such
agreement shall amend, modify or otherwise affect the rights, duties,
indemnities, immunities of the Administrative Agent or the Collateral Agent
without the prior written consent of the Administrative Agent or the Collateral
Agent, as appropriate.
(b) Each holder of a New Term Note shall be bound by any amendment,
modification, waiver or consent authorized as provided herein (whether or not
any applicable note shall have been marked to indicate such amendment,
modification, waiver or consent); and any consent by any holder of a New Term
Note shall bind any Person subsequently acquiring such New Term Note (whether or
not any applicable New Term Note is so marked).
Section 10.12. Severability. Any provision of this Credit Agreement
or of any New Term Note which is invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without invalidating the
remaining provisions hereof, and any such invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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Section 10.13. SERVICE OF PROCESS. EACH LOAN PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS (FOR ITSELF AND ITS PROPERTY) TO THE JURISDICTION OF
THE STATE COURTS OF THE STATE OF NEW YORK IN NEW YORK COUNTY AND TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK SITTING IN NEW YORK COUNTY (AND TO ANY APPELLATE COURT FROM ANY
THEREOF), FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT
OF, OR BASED UPON, THIS CREDIT AGREEMENT THE SUBJECT MATTER HEREOF, ANY OTHER
LOAN DOCUMENT AND THE SUBJECT MATTER THEREOF, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH LOAN PARTY TO THE
EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR OTHER
PROCEEDING BROUGHT IN THE ABOVE-NAMED COURTS, ANY CLAIM THAT IT IS NOT SUBJECT
PERSONALLY TO THE JURISDICTION OF SUCH COURTS, THAT ITS PROPERTY IS EXEMPT OR
IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER OR THAT THIS CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF,
ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER THEREOF OR ANY JUDGMENT (AS
APPLICABLE) MAY NOT BE ENFORCED IN OR BY SUCH COURT AND (B) HEREBY WAIVES THE
RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR
COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM
THE SAME SUBJECT MATTER. EACH PARTY HERETO AGREES THAT ITS SUBMISSION TO
JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF EACH OF THE OTHER PARTIES HERETO. FINAL JUDGMENT AGAINST ANY LOAN
PARTY IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION (X) BY SUIT, ACTION OR PROCEEDING ON THE
JUDGMENT, A CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE
FACT AND OF THE AMOUNT OF INDEBTEDNESS OR LIABILITY OF THE LOAN PARTY THEREIN
DESCRIBED OR (Y) IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH
OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT MAY AT ITS
OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST A LOAN PARTY
OR ANY OF ITS ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OR OF
ANY COUNTRY OR PLACE WHERE SUCH LOAN PARTY OR SUCH ASSETS MAY BE FOUND. EACH
PARTY HERETO HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT THE ADDRESS TO
WHICH NOTICES ARE TO BE GIVEN TO IT PURSUANT TO SECTION 10.1 HEREOF.
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Section 10.14. Headings. Article and Section headings used herein and
the Table of Contents are for convenience only and are not to affect the
construction of, or be taken into consideration in interpreting, this Credit
Agreement.
Section 10.15. Execution in Counterparts. This Credit Agreement may
be executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument. Signature pages may be detached from counterpart documents and
reassembled to form duplicate executed originals. Delivery of an executed
signature page to this Credit Agreement by facsimile shall be as effective as
delivery of a manually executed counterpart of this Credit Agreement.
Section 10.16. Subordination of Intercompany Indebtedness,
Receivables and Advances. Each Loan Party hereby agrees that any intercompany
Indebtedness or other intercompany receivables or intercompany advances,
directly or indirectly, made by or owed to such Loan Party by any other Loan
Party of whatever nature at any time outstanding shall be completely subordinate
in right of payment to the prior indefeasible payment in full in cash of the
Obligations. Each Loan Party hereby agrees that it will not become obligated or
otherwise liable for any intercompany Indebtedness, or other intercompany
receivable or intercompany advance that is owed to any Subsidiary of the
Borrower that is not a Loan Party, unless such Subsidiary agrees that such
Indebtedness, receivable or advance (as applicable) is subordinated to the
Obligations to the extent set forth above in the immediately preceding sentence.
Section 10.17. Confidentiality. The Administrative Agent and each of
the New Term Lenders understands that some of the information furnished to it
pursuant to this Credit Agreement and the other Loan Documents may be received
by it prior to the time that such information shall have been made public, and
each Administrative Agent, and each of the New Term Lenders hereby agrees that
it will keep all the Information (as defined below) received by it confidential
except that a New Term Lender shall be permitted to disclose Information (i) to
such of its officers, directors, employees, agents, representatives, auditors,
consultants, advisors, trustees, investments advisors, lawyers and Affiliates
(other than Affiliates that are direct competitors of any material business of
the Loan Parties) as they need to know such information in connection with this
Credit Agreement or any other Loan Document and who will be advised of the
confidential nature of such information; (ii) to any other party to this Credit
Agreement; (iii) to a proposed assignee or participant in accordance with
Section 10.3(h) hereof or any swap counterparty; provided, that such proposed
assignee or participant shall agree in writing to be bound by the
confidentiality provisions set forth herein; (iv) to the extent required by
Applicable Law and regulations or by any subpoena or other legal process; (v) to
the extent requested by any bank regulatory authority or other regulatory
authority; (vi) to the extent such information (A) becomes publicly available
other than as a result of a breach of this Credit Agreement or (B) becomes
available to such New Term Lender on a nonconfidential basis from a source other
than the Borrower or any of its Affiliates; (vii) to the extent the Borrower
shall have consented to such disclosure; or (viii) in connection with the
servicing of the New Term Loans hereunder, in protecting, exercising or
enforcing any rights and/or remedies in connection with any Loan Document or in
any proceeding in connection with any Loan Document or any of the transactions
contemplated thereby. For the purposes of this Section, "Information" means all
information received from the Borrower, any other Loan Party, or any Related
Party with respect to the Borrower or any Loan Party, or any Related Party or
any of their respective businesses, other than any such information that is
114
available to the Administrative Agent, or any New Term Lender on a
nonconfidential basis prior to disclosure by the Borrower, any Loan Party or any
Related Party; provided that, in the case of information received from the
Borrower, any Loan Party and any Related Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything to the contrary set forth
herein or in any other agreement to which the parties hereto are parties or by
which they are bound, the obligations of confidentiality contained herein and
therein, as they relate to the Information, shall not apply to the tax structure
or tax treatment of the Agreement and other Loan Documents (the "Transaction"),
and each party hereto (and any employee, representative, or agent of any party
hereto) may disclose to any and all persons, without limitation of any kind, the
tax structure and tax treatment of the Transaction and all materials of any kind
(including opinions or other tax analysis) that are provided to such party
relating to such tax treatment and tax structure; provided, however, that such
disclosure shall not include the name (or other identifying information not
relevant to the tax structure or tax treatment) of any person and shall not
include information for which nondisclosure is reasonably necessary in order to
comply with applicable securities laws.
Section 10.18. Entire Agreement. This Credit Agreement (including the
Exhibits and Schedules hereto) the Fee Letter, the Security Agreement, the
Intercreditor Agreement and any Loan Documents relating to the grant of a Lien
to the Collateral Agent (for the benefit of the Secured Parties) represents the
entire agreement of the parties with regard to the subject matter hereof.
Section 10.19. Enforcement of Rights; No Obligation to Xxxxxxxx
Assets. In enforcing any rights under this Credit Agreement or any other Loan
Document, none of the Administrative Agent, the Collateral Agent or any of the
New Term Lenders shall be required to resort to any particular security, right
or remedy through foreclosure or otherwise, or to proceed in any particular
order of priority, or to otherwise act or refrain from acting; and, to the
extent permitted by Applicable Law, each Loan Party hereby waives and releases
any right to a marshaling of assets or a sale in inverse order of alienation.
Section 10.20. Reproduction of Documents. The Credit Agreement, all
documents constituting Schedules or Exhibits hereto, and all documents relating
hereto received by a party hereto, including, without limitation: (a) consents,
waivers, amendments and modifications that may hereafter be executed; (b) the
Loan Documents; and (c) Financial Statements, certificates, and other
information previously or hereafter furnished to the Administrative Agent or any
New Term Lender may be reproduced by the party receiving the same by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. Each of the parties hereto agrees and stipulates that, to
the extent permitted by Applicable Law, any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by such party in the regular course of business) and that,
to the extent permitted by Applicable Law, any enlargement, facsimile, or
further reproduction of such reproduction shall likewise be admissible in
evidence.
115
Section 10.21. Change in GAAP. In the event of any change in GAAP required by
the promulgation of any rule, regulation, opinion or other pronouncement of FASB
or if applicable, the Securities and Exchange Commission (or any successor to
either of them), and such change affects in the method of calculating the
financial covenants or any of the defined terms used therein, then the Borrower
and the New Term Lenders agree to negotiate in good faith to amend the affected
provisions of this Credit Agreement as necessary so that the covenant levels
and/or the criteria for evaluating the consolidated financial condition of the
Borrower and its Subsidiaries as set forth in the financial covenants shall be
the same as if such change in generally accepted accounting principles had not
occurred.
Section 10.22. "Most Favored" Secured Creditor. The following
provisions shall apply from and after the Effective Date of this Credit
Agreement for the benefit of the New Term Lenders, with respect to the execution
and delivery of the amendments to the New Working Capital Facility Agreement,
affecting the following provisions (i) covenants set forth in Articles 5 or 6
thereof or any of the Schedules or Annexes thereto, (ii) Events of Default set
forth in Article 7 thereof, and (iii) the provisions affecting interest rate,
applicable margin or any other factors affecting the pricing of the loans under
the New Working Capital Facility:
(a) In the event that the New Working Capital Facility Agreement is
amended such that any affirmative or negative covenants or Event of Default set
forth in the New Working Capital Facility Agreement or any of the definitions
related thereto is added or, pursuant to an amendment thereto, is made more
restrictive on the New Working Capital Facility Borrower or any of the other
Credit Parties (as defined therein) or more beneficial to the New Working
Capital Facility Agent and the New Working Capital Facility Lenders, than the
corresponding covenant, Event of Default or any of the definitions related
thereto is restrictive on the Borrower or any of its Consolidated Subsidiaries
or as beneficial to the New Term Lenders, the Administrative Agent and the
Collateral Agent in the Credit Agreement, then the Credit Agreement shall be
deemed amended so that it includes such new or amended covenant, Event of
Default or related definition so that such covenant, Event of Default or any
such related definition becomes as restrictive on the Borrower or its
Consolidated Subsidiaries or as beneficial to the New Term Lenders as such
covenant, Event of Default or related definition, as amended, in the New Working
Capital Facility.
(b) In the event that the provisions affecting interest payable on
the New Working Capital Loans, including, the interest rate per annum, the
applicable margin and any other factors affecting the pricing of the loans under
the New Working Capital Facility shall be amended such that the relative pricing
of the loans under the New Working Capital Facility vis-a-vis the pricing of the
New Term Loans under the Credit Agreement becomes relatively more favorable to
the New Working Capital Facility Lenders than the relative pricing that existed
on the Effective Date, then the pricing of the New Term Loans shall be deemed
amended so that it includes similar pricing adjustments to those adopted under
the New Working Capital Facility.
Section 10.23. Collateral Agent. Each of the New Term Lenders hereby
agrees that the Collateral Agent shall enter into the Loan Documents concerning
the Collateral and that all of the provisions concerning the rights, duties and
obligations of the Collateral Agent shall be set forth in the Security Agreement
to be executed and delivered by the Collateral Agent, the Guarantors and the
Borrower in substantially the form of Exhibit E-1 hereto.
116
[SIGNATURE PAGES FOLLOW]
117
IN WITNESS WHEREOF, this Credit Agreement has been duly executed as
of the date first written above.
THERMADYNE HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Credit Agreement ]
The following Persons are signatories to this Credit Agreement in
their capacity as Guarantors:
THERMAL DYNAMICS CORPORATION
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
TWECO PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX EQUIPMENT COMPANY
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
C&G SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
[Signature Page to Credit Agreement]
STOODY COMPANY
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
THERMAL ARC, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
THERMADYNE INTERNATIONAL CORP.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
PROTIP CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
[Signature Page to Credit Agreement]
THERMADYNE INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
THERMADYNE RECEIVABLES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
MECO HOLDING COMPANY
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
C&G SYSTEMS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
[Signature Page to Credit Agreement ]
THERMADYNE CYLINDER CO.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and Chief
Financial Officer
[Signature Page to Credit Agreement]
The following Person is a signatory to this Credit Agreement in its
capacity as Administrative Agent and Collateral Agent:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent and Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Deutsche Bank Trust Company Americas
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000/27
Email: xxxx.xxxxxxxx@xx.xxx
--------------------
[Signature Page to Credit Ageement ]
The following Persons are signatories to this Credit Agreement in
their capacity as New Term Lenders:
ABN AMRO BANK NV., MILAN BRANCH
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Head CFCPUT - Italy
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Head of Industrias, Italy
ABN AMRO Bank N.V., Milan Branch
Xxx Xxxxxxxxx 0
00000 Xxxxx, Xxxxx
Attention: Margaritella Xxxxxx
Fax No.: 00-00-00000000
Email: Xxxxxxxxxxxx.Xxxxxx@xxxxxxx.xxx
-------------------------------
[Signtaure Page to Credit Agreement ]
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Group Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Group Senior Vice President
ABN AMRO Bank N.V.
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax No.: 000-000-0000
Email: xxxxx.xxxxx@xxxxxxx.xxx
-----------------------
[Signature Page to Credit Agreement]
AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., as Investment
Advisor
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
c/o Xxxxxx Xxxxxx & Co.
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
--------------------------
[Signature Page to Credit Agreement]
SILVER OAK CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
c/o Xxxxxx Xxxxxx & Co.
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
--------------------------
[Signature Page to Credit Agreement ]
NORTHWOODS CAPITAL, LIMITED
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
c/o Xxxxxx Xxxxxx & Co.
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax No.: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
--------------------------
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Credit Suisse First Boston
Loan Syndications
00 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax No.: 000-000-0000
Email: Xxxxxx.xxxxxxx@xxxx.xxx
-----------------------
[Signature Page to Credit Agreement]
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
x/x XXXxxxxx Xxxxx Xxxx
0 Xxxxx Xxxx Center 11th Floor
Brooklyn, NY 11245
Attention: Xxxxxxxx Xxxxxx
Phone No.: 000-000-0000/Fax No.: 000-000-0000
Email: Xxxxxxxx.x.xxxxxx@xxxxx.xxx
---------------------------
[Signature Page to Credit Agreement]
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
Senior Debt Portfolio
c/o Boston Management and Research
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Fax No.: (000) 000-0000
Email: Xxxxxxxxxxx@XxxxxXxxxx.xxx
--------------------------
[Signature Page to Credit Agreement]
XXXXXXX & CO.
By: Boston Management and Research, as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
---------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
Xxxxxxx & Co.
c/o Boston Management and Research
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Fax No.: (000) 000-0000
Email: Xxxxxxxxxxx@XxxxxXxxxx.xxx
--------------------------
[Signature Page to Credit Agreement]
FIDELITY SUMMER STREET TRUST;
FIDELITY CAPITAL & INCOME FUND
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
c/o Fidelity Investments
00 Xxxxxxxxxx Xxx., X00X
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
Fax No.: 000-000-0000
Email: xxxx.xxxxx@xxx.xxx
------------------
[Signature Page to Credit Agreement]
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
General Electric Capital Corporation
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx xxx Xxxxx
Fax No.: 000-000-0000
Email: xxxxxx.xxxxxxxx@xx.xxx
[Signature Page to Credit Agreement]
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Syndicated & Loan Trading
00 Xxxxx Xx., 0xx Xxxxx
Xxx Xxxx, XX 1004
Attention: Xxxxxx Xxxxx
Fax No.: 000-000-0000
Email: Xxxxxx.x.xxxxx@xx.xxx
[Signature Page to Credit Agreement]
HIGHLAND LEGACY LIMITED
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ [Signature Illegible]
------------------------------------
Name:
Title:
c/o Highland Capital Management
Two Galleria Tower
00000 Xxxx Xx., Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax No.: 000-000-0000
Email: xxxxxxx@xxxxx.xxx
-----------------
[Signature Page to Credit Agreement]
KZH PAMCO LLC
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
c/o XX Xxxxxx Chase Bank
0 Xxxxx Xxxx Xxxxxx 00xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Phone No.: 000-000-0000/
Fax No.: 000-000-0000
Email: Xxxxxxxx.x.xxxxxx@xxxxx.xxx
[Signature Page to Credit Agreement]
MIZUHO CORPORATE BANK LTD.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
0000 Xxx. xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax No.: 000-000-0000
Email: Xxxxxxxx@xx.xxxxxx-xx.xxx
-------------------------
[Signature Page to Credit Agreement]
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Franco J. Chowg
----------------------------------
Name: Franco J. Chowg
Title: Authorized Signatory
Xxxxxx Commercial Paper Inc.
000 Xxxxxx Xx.
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax No.: 000-000-0000
Email: Xxxxxxx@xxxxxx.xxx
------------------
[Signature Page to Credit Agreement]
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX, INC.
By: /s/ [Signature Illegible]
---------------------------------------
Name:
Title:
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Fax No.: 000-000-0000
Email: Xxxxx00@xxxxxxxx.xx.xxx
[Signature Page to Credit Agreement]
XXXXXX XXXXXXX EMERGING MARKETS INC
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Xxxxxx Xxxxxxx Emerging Markets Inc
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax No.: 000-000-0000
Email: Xxx.xxxxxxx@XxxxxxXxxxxxx.xxx
-----------------------------
[Signature Page to Credit Agreement]
NEWSTART FACTORS INC.
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
Newstart Factors Inc.
0 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax No.: 000-000-0000
Email: Xxxxxxx@xxxxxxxxxxx.xxx
[Signature Page to Credit Agreement]
NORSE CBO, LTD
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to delegated
authority
By: /s/ [Signature Illegible]
Name:
Title:
c/o Regiment Capital
00 Xxxxxxx Xx., 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax No.: 000-000-0000
Email: Xxxxxxxx@xxxxxxxxxxxxxxx.xxx
[Signature Page to Credit Agreement]
THE MAINSTAY FUNDS ON BEHALF OF ITS HIGH
YIELD CORPORATE BOND FUND SERIES
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By: /s/ Xxxxxx X. Nisi
----------------------------------------
Name: Xxxxxx X. Nisi
Title: General Counsel
c/o MacKay Xxxxxxx
0 X. 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Fax No.: 000-000-0000
Email:Nunzia.Xxxxxxxxxx
@xxxxxxxxxxxxx.xxx
[Signature Page to Credit Agreement]
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate Director, Banking
Products Services, US
UBS AG
Stamford Branch
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Fax No.: 000-000-0000
Email: Xxxxxxxx.xxxxxx@xxxx.xxx
------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate Director, Banking
Products Services, US
[Signature Page to Credit Agreement]
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
Xxx Xxxxxx CLO II, Limited
0 Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax No.: 000-000-0000
Email: Xxxxx.Xxxxxx@xxxxxxxxx.xxx
[Signature Page to Credit Agreement]
